U.S. Department of Justice

Office of the Inspector General

 

 

 

A Review of ATF’s Operation Fast 

and Furious and Related Matters

(REDACTED)

Office of the Inspector General

Oversight and Review Division

September 2012
i 

TABLE OF CONTENTS 

CHAPTER ONE: INTRODUCTION ............................................................... 1

I. Methodology of the Investigation ....................................................... 3

II. Organization of this Report ............................................................... 5

CHAPTER TWO: BACKGROUND INFORMATION ......................................... 9

I. Federal Firearms Regulations ........................................................... 9

A. ATF and the Federal Firearms Licensee ................................... 9

B. Recordkeeping Requirements and the Form 4473 .................. 10

C. State Regulations and Mexican law ....................................... 12

II. Firearms Trafficking Enforcement ................................................... 13

A. ATF Investigative Guidelines .................................................. 13

B. ATF’s National Tracing Center ............................................... 15

C. Applicable Federal Criminal Statutesand Straw 

Purchasing ............................................................................ 17

III. Firearms Seizure and Forfeiture ...................................................... 19

A. Property Seized as Evidence .................................................. 20

B. Property Seized for Forfeiture ................................................ 20

C. Abandonment........................................................................ 21

IV. The Southwest Border and Relevant Department Memoranda 

and Initiatives ................................................................................. 21

A. April 27, 2009, Guidelines for Consideration of OCDETF 

Designation for Firearms Trafficking Cases Related to 

Mexican Drug Cartels ............................................................ 22

B. June 17 and June 25, 2009, National Firearms Trafficking 

Enforcement Strategy and Enforcement Plan Memoranda ...... 22

C. January 7, 2010, Strategy for Combating the Mexican 

Cartels .................................................................................. 23

D. September 8, 2010, Project Gunrunner – a Cartel-Focused 

Strategy ................................................................................ 24

E. November 2010 OIG Review of ATF’s Project Gunrunner ........ 25
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CHAPTER THREE: OPERATION WIDE RECEIVER .................................... 27

I. Introduction ................................................................................... 27

II. Methodology of the OIG’s Review ..................................................... 28

III. Organization of this Chapter ........................................................... 30

IV. Operation Wide Receiver I (2006) .................................................... 31

A. Inception and Early Investigation of the Case ........................ 31

B. Horowitz and Betancourt Take Over Straw Purchases in 

April 2006 ............................................................................. 36

C. Involvement of the U.S. Attorney’s Office and ATF Division 

Counsel and Discussion of “Walking” Guns in June and 

July 2006 .............................................................................. 38

D. Refusal by San Diego ATF Office to Assist Tucson ATF Office 

in Delivery of 17 AR-15 Lower Receivers in June 2006 ........... 44

V. Operation Wide Receiver II (2007) ................................................... 45

A. Resumption of the Case with a New Group of Buyers and 

Arrest of Gonzalez in February 2007 ...................................... 45

B. Celaya’s Purchasing Activity Continues Unabated as Focus 

Shifts to a New Subject in April 2007 .................................... 48

C. Attempts to Coordinate with Mexican Law Enforcement 

between April and June 2007 ................................................ 49

D. Move Toward the Use of Electronic Surveillance in June 

2007 ..................................................................................... 55

E. Seizure of 32 Firearms and Recovery of Firearms in Mexico 

in July 2007 .......................................................................... 57

F. Approval of the First Title III Application in August 2007 ....... 58

G. Straw Purchases During Electronic Surveillance.................... 62

H. Summary of Firearms Purchases and Seizures ...................... 66

VI. Prosecution of the Case .................................................................. 67

A. Handling of the Case by the U.S. Attorney’s Office ................. 67

B. Assignment of a Criminal Division Prosecutor........................ 69

C. Reactions to Operation Wide Receiver by the Criminal 

Division Front Office .............................................................. 71

D. Indictments and Sentencing .................................................. 75
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VII. OIG ANALYSIS ................................................................................ 78

A. ATF’s Phoenix Field Division and Tucson II Group ................. 78

1. The Primary Goal of Operation Wide Receiver Was 

to Allow Straw Purchases to Continue in Order to 

Identify and Prosecute the Firearms Trafficking 

Organization ................................................................ 78

2. Inadequate Attention to Public Safety Considerations ... 82

3. Flaws in the Conduct of the Investigation ..................... 82

4. Use of the FFL as a Confidential Informant .................. 84

B. Role of the U.S. Attorney’s Office ........................................... 85

C. ATF Headquarters’ Knowledge of Operation Wide Receiver ..... 88

D. Department Leadership Knowledge of Operation Wide 

Receiver ................................................................................ 89

1. Authorization for Electronic Surveillance ...................... 90

2. Former Attorney General Mukasey ............................... 93

VIII. Conclusion ..................................................................................... 99

CHAPTER FOUR: OPERATION FAST AND FURIOUS ............................... 103

I. Introduction ................................................................................. 103

II. Methodology ................................................................................. 104

III. Organization of this Chapter ......................................................... 105

IV. Inception and Early Investigation 

(October 2009 –February 2010)..................................................... 106

A. ATF Establishes a New Firearms Trafficking Enforcement 

Group in October 2009 .........................................................106

B. U.S. Attorney’s Office Reorganizes Firearms Trafficking 

Responsibilities ....................................................................108

C. ATF Group VII Identifies a Firearms Trafficking 

Organization and Initiates Operation Fast and Furious in 

November 2009 ....................................................................109

D. Purchases Continue in December and January as 

Additional Subjects are Identified .........................................115

E. Connections to DEA and ICE Operations in Late 2009 and 

January 2010.......................................................................121

1. DEA Provides Significant Information to ATF ...............121

2. Contact with ICE ........................................................124
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F. FFL1’s Cooperation Increases and Request for Meeting with 

the Government on December 17 .........................................128

G. Government Adopts Longer Term Strategy that Defers Overt 

Enforcement Action ..............................................................133

1. Corpus Delicti .............................................................134

2. Risk that Confronting or Arresting Straw Purchasers 

or Seizing Firearms Would Harm the Broader 

Investigation ...............................................................137

3. Challenges in Prosecuting Non-Prohibited 

Purchasers .................................................................139

4. Department and ATF Firearms Trafficking Strategy .....142

H. The Decision to Pursue a Wiretap and the Meeting Between 

ATF and the U.S. Attorney’s Office on January 5, 2010.........143

V. OCDETF Designation and Use of Electronic Surveillance 

(February 2010 - July 2010) ......................................................... 147

A. Investigation Designated an OCDETF Case in February ........148

B. Applications and Orders for Tracking Devices and Electronic 

Surveillance .........................................................................150

1. Tracking Devices Used in January Through March ......150

2. Electronic Surveillance Begins in March......................154

C. Investigation Continues to Uncover Significant Trafficking 

Activity .................................................................................161

1. Subjects’ Purchasing Activity Continues ......................161

2. ATF Conducts Surveillance of Straw Purchases and 

Transfers ....................................................................165

D. Tensions in Group VII ..........................................................169

E. ATF Phoenix Field Division Drafts an Exit Strategy in 

April .....................................................................................175

F. Celis-Acosta has Direct Contact with Law Enforcement in 

April, May, and August .........................................................177

G. FFL2 Expresses Concerns and Requests Meeting with the 

Government in May ..............................................................180

H. ATF Initiates Several Seizures in June and July and the 

Investigative Phase of Case Draws to a Close ........................185

VI. Operation Fast and Furious Moves Toward Indictment 

(August 2010 - January 2011) ...................................................... 189

A. Purchasing and Investigative Activities Decline .....................190
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B. Delays in Moving the Case to Indictment ..............................191

C. Murder of Agent Terry ..........................................................199

D. Summary of Firearms Purchases and Seizures .....................203

VII. OIG Analysis................................................................................. 209

A. Investigative Goal and Strategy .............................................211

1. Use of the Wiretap ......................................................214

2. Role of Probable Cause in Developing Case Strategy ....216

3. Failure to Exploit Information .....................................219

B. Sufficiency of Evidence to Seize Firearms..............................222

C. Failure to Supervise and Reassess the Investigation .............226

D. Use of Cooperating FFLs .......................................................227

E. Delay in Indictment of Operation Fast and Furious 

Subjects ...............................................................................231

CHAPTER FIVE: THE ROLE OF ATF AND DOJ HEADQUARTERS IN 

OPERATION FAST AND FURIOUS ................................................. 235

I. Background .................................................................................. 235

II. Early Developments in Operation Fast and Furious ...................... 237

A. November to December 2009: ATF Headquarters Personnel 

Receive Information about Firearms Seizures Connected to 

Operation Fast and Furious .................................................237

B. Request for Assistance from the Criminal Division ................240

C. January to February 2010: ATF Headquarters Learns About 

Additional Firearms Recoveries, Case Strategy, and Pursuit 

of a Wiretap ..........................................................................243

III. March and April 2010: Briefings for Senior Leaders of ATF and 

the Department, the Exit Strategy, the Initial Wiretap Applications, 

and the Involvement of the Criminal Division ................................ 253

A. ATF Briefings on March 1 and March 5 for Criminal Division 

Prosecutor and the Rejection by the U.S. Attorney’s Office of 

Criminal Division Assistance ................................................254

B. Acting Director Melson’s Briefing on March 11 .....................259

C. ATF’s Briefing for the Acting Deputy Attorney General on 

March 12 .............................................................................261

D. Hoover’s Request for Exit Strategy ........................................265
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E. Discussions between Hoover, McMahon, and DAAG Weinstein 

about Operation Fast and Furious from April 28 to Early 

May 2010 .............................................................................267

F. Review of the Wiretap Applications .......................................274

1. Review Process ............................................................274

2. Content of the Wiretap Applications ............................276

3. Review of the Operation Fast and Furious Applications 

by OEO and the DAAGs ..............................................280

IV. Events from the Summer 2010 to Agent Terry’s Murder ................ 281

A. Criminal Division Assistance is Again Rejected by the U.S. 

Attorney’s Office ...................................................................281

B. Submission of Weekly Reports to the Offices of Attorney 

General and Deputy Attorney General ..................................284

C. The End of the “Investigative Phase” in Operation Fast and 

Furious and Delay of the Indictment ....................................286

V. Response to Agent Terry’s Murder ................................................. 289

VI. The January 25, 2011, Press Conference Announcing the Avila 

Indictment .................................................................................... 295

VII. OIG Analysis................................................................................. 297

A. Information Provided to the Offices of the Attorney General 

and the Deputy Attorney General .........................................298

1. Attorney General Holder ..............................................299

2. Weekly Reports to the Offices of the Attorney General 

and Deputy Attorney General ......................................300

3. Acting Deputy Attorney General Grindler ....................301

4. Information Provided to the Department Following 

Agent Terry’s Shooting ................................................302

B. Information Provided to the Criminal Division ......................304

1. Gang Unit Prosecutors ................................................304

2. Authorization of the Wiretap Applications and DAAG 

Weinstein’s Failure to Recognize “Gun Walking” ..........308

3. Assistant Attorney General Breuer ..............................314

C. ATF Headquarters’ Oversight of Operation Fast and 

Furious ................................................................................315

1. Oversight Failures in January 2010 ............................316

2. Failure to Respond to the Lack of ATF Initiated 

Firearms Seizures .......................................................319
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3. The Impact of Newell’s Incomplete and Misleading 

Information .................................................................321

4. Hoover’s Failure to Oversee the “Exit Strategy” ............323

5. Chait and McMahon’s Failure to Review the Wiretap 

Applications and Affidavits ..........................................325

CHAPTER SIX: THE DEPARTMENT’S STATEMENTS TO CONGRESS 

CONCERNING ATF FIREARMS TRAFFICKING INVESTIGATIONS .. 329

I. Senator Grassley’s January 27, 2011, Letter to Acting Director 

Melson.......................................................................................... 330

II. The Justice Department’s February 4, 2011, Response to 

Senator Grassley .......................................................................... 332

A. Initial Effort to Gather Information on January 27 and 28 ....333

B. Senator Grassley’s Meeting with the Attorney General on 

January 31 and his January 31 Letter to Acting Director 

Melson .................................................................................339

C. The Department Drafts a Response to Sen. Grassley’s 

Letters..................................................................................340

1. Weinstein and Burke React to Sen. Grassley’s 

Letters ........................................................................340

2. The February 1, 2011, Conference Calls ......................344

3. Disagreement Over Scope of the Response to Sen. 

Grassley’s Allegations .................................................349

4. Increased Involvement of the Office of the Deputy 

Attorney General in Finalizing the Response ...............355

5. The Justice Department Issues its Response to Sen. 

Grassley .....................................................................360

III. The Justice Department’s Decision to Withdraw its February 4 

Response ...................................................................................... 361

A. The Department Initiates an Examination of Operation Fast 

and Furious .........................................................................361

1. The February Letters from Sen. Grassley, the CBS 

News Story, and the Weinstein Summary E-Mail .........361

2. The Referral to the OIG, and the Department’s March 

and April 2011 Correspondence with Congress ...........369

3. The Office of the Deputy Attorney General Reviews 

the ATF ROIs in March................................................371

B. Acting Director Melson Reviews the Title III Affidavits in 

March and Concludes that the February 4 Letter is 

Inaccurate ............................................................................375
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C. Weinstein and the Office of the Deputy Attorney General 

Learn of Other Flawed ATF Investigations .............................377

D. The Department Publicly Disavows the February 4 Letter .....379

1. The Department’s May 2 Letter to Sen. Grassley and 

Weich’s June 15 Congressional Testimony ..................379

2. Breuer’s Testimony on November 1 .............................387

3. Attorney General Holder Acknowledges the February 4 

Letter is Inaccurate in his Testimony on November 8 ...388

E. Senior Department Officials Conclude that the February 4 

Letter Should be Withdrawn .................................................389

F. The Department Formally Withdraws the February 4 Letter 

and Produces Internal Documents to Congress .....................390

1. Specific “Inaccuracies” Cited by Department 

Leadership ..................................................................391

2. Responsibility for Including Inaccurate Information in 

the February 4 Letter ..................................................392

IV. OIG Analysis................................................................................. 395

A. Introduction .........................................................................395

B. Misplaced Reliance on ATF and the U.S. Attorney’s Office for 

Information ..........................................................................397

C. The Flawed February 4 Letter Drafting Process .....................400

1. The Scope of the Response ..........................................400

2. Inaccurate Information from Component and 

Department Officials ...................................................403

3. Failure to Review Material Relevant to the 

Allegations ..................................................................408

4. Knowledge of Operation Wide Receiver ........................411

D. The Department’s Post-February 4 Statements to Congress 

and the Withdrawal of the February 4 Letter ........................414

CHAPTER SEVEN: CONCLUSIONS ......................................................... 419

I. Conduct of Operation Wide Receiver and Operation Fast and 

Furious ........................................................................................ 419

A. Systemic Issues ....................................................................419

1. Lack of Sufficient Controls and Inadequate Attention 

to Public Safety ...........................................................419

2. Inappropriate Use of Cooperating FFLs to Advance the 

Investigation ...............................................................422

3. Lack of Meaningful Oversight by ATF Headquarters ....425
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4. Issues Regarding Coordination with Other Law 

Enforcement Agencies .................................................427

5. Recommendations.......................................................428

6. Department Review of Wiretap Applications ................429

B. Individual Performance.........................................................431

1. ATF Phoenix Field Division ..........................................431

2. United States Attorney’s Office for the District of 

Arizona .......................................................................441

3. ATF Headquarters .......................................................448

4. Department Leadership ...............................................453

II. Department’s Statements to Congress Concerning ATF Firearms 

Trafficking Investigations .............................................................. 456

A. Summary of the Department’s Statements to Congress .........456

B. The Flawed February 4 Letter Drafting Process .....................458

C. The Department’s Post-February 4 Statements to 

Congress ..............................................................................466

D. Deputy Attorney General Cole’s January 26, 2012, 

Memorandum .......................................................................469

III. Conclusion ................................................................................... 471

Appendix ................................................................................................ A-1 
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PAGE INTENTIALLY LEFT BLANK
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CHAPTER ONE

INTRODUCTION

On October 31, 2009, special agents working in the Phoenix office of the 

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) received 

information from a local gun store about the recent purchases of multiple AK47 style rifles by four individuals. Agents began investigating the purchases 

and soon came to believe that the men were so-called “straw purchasers” 

involved in a large-scale gun trafficking organization responsible for buying 

guns for transport to violent Mexican drug trafficking organizations. This 

investigation was later named “Operation Fast and Furious.”1

By the time ATF and the U.S. Attorney’s Office for the District of Arizona 

(U.S. Attorney’s Office) publicly announced the indictment in the case on 

January 25, 2011, agents had identified more than 40 subjects believed to be 

connected to a trafficking conspiracy responsible for purchasing over 2,000 

firearms for approximately $1.5 million in cash. The vast majority of the 

firearms purchased by Operation Fast and Furious subjects were AK-47 style 

rifles and FN Herstal 5.7 caliber pistols. During the course of the investigation, 

ATF agents seized only about 100 of the firearms purchased, the result of a 

strategy jointly pursued by ATF and the U.S. Attorney’s Office that deferred 

taking overt enforcement action against the individual straw purchasers while 

seeking to build a case against the leaders of the organization. 

Numerous firearms bought by straw purchasers were later recovered by 

law enforcement officials at crime scenes in Mexico and the United States. One 

such recovery occurred in connection with the tragic shooting death of a 

federal law enforcement agent, U.S. Customs and Border Protection Agent 

Brian Terry. On January 16, 2010, one of the straw purchasers, Jaime Avila, 

purchased three AK-47 style rifles from a Phoenix-area gun store. ATF agents 

learned about that purchase 3 days later and, consistent with the investigative 

strategy in the case, made no effort to locate Avila or seize the rifles although 

ATF had identified Avila as a suspect in November 2009. Two of the three rifles 

 

1 Redactions in this report are based on the Department’s identification of grand jury, 

Title III electronic surveillance, sealed court, and law enforcement sensitive information, the 

unauthorized disclosure of which is prohibited by law or could adversely affect an ongoing 

investigation. At the Inspector General’s request, the Department has agreed to seek a court 

order authorizing the unsealing of portions of the redacted electronic surveillance information 

that do not reveal the content of intercepted communications or law enforcement sensitive 

information, and that do not otherwise affect individual privacy interests. If the court 

authorizes unsealing, the OIG will publish a revised report with pertinent redactions removed 

to show the unsealed information. The identities of Mexican government employees and 

Mexican nationals employed by the ATF in Mexico have also been redacted.
2 

purchased by Avila on January 16 were recovered 11 months later at the scene 

of the murder of Agent Terry, who was shot and killed on December 14, 2010, 

as he tried to arrest persons believed to be illegally entering the United States. 

The day after and in response to Agent Terry’s murder, ATF agents 

arrested Avila. Several weeks later, on January 19, 2011, the U.S. Attorney’s 

Office indicted 20 Operation Fast and Furious straw purchasers and gun 

traffickers. As of August 1, 2012, 14 defendants, including Avila, have entered 

guilty pleas to one or more counts of the indictment. 

Although the Federal Bureau of Investigation (FBI) was assigned to 

investigate the murder of Agent Terry, the senior leadership of ATF and the 

Department of Justice (Department or DOJ) took little action in the immediate 

aftermath of Agent Terry’s death to learn more about an ATF investigation that 

involved the trafficking of approximately 2,000 weapons over many months, 

and how guns purchased by a previously-identified subject of that investigation 

ended up being recovered at the scene of Agent Terry’s murder. Shortly after 

Agent Terry’s death, stories began appearing on the Internet alleging that ATF 

had allowed firearms to “walk” to Mexico, and that one of those firearms may 

have been linked to the death of a federal law enforcement officer. 

The flaws in Operation Fast and Furious became widely publicized as a 

result of the willingness of a few ATF agents to publicly report what they knew 

about it, and the conduct of the investigation became the subject of a 

Congressional inquiry. On January 27, 2011, Senator Charles E. Grassley 

wrote to ATF Acting Director Kenneth Melson that the Senate Judiciary 

Committee had received allegations that ATF had “sanctioned the sale of 

hundreds of assault weapons to suspected straw purchasers,” who then 

transported the firearms throughout the southwest border area and into 

Mexico. On February 4, 2011, the Department responded in writing by 

denying the allegations and asserting that “ATF makes every effort to interdict 

weapons that have been purchased illegally and prevent their transportation to 

Mexico.” However, after examining how Operation Fast and Furious and other 

ATF firearms trafficking investigations were conducted, the Department 

withdrew the February 4 letter on December 2, 2011, because it contained 

inaccuracies. 

Also on January 27, 2011, Senator Grassley’s staff brought the 

allegations of one ATF agent to the attention of the Office of the Inspector 

General (OIG). We interviewed the agent and began a preliminary inquiry into 

the matter. On February 28, 2011, Attorney General Eric Holder requested the 

OIG to conduct a review of Operation Fast and Furious, and we agreed to 

conduct the review. This report describes the results of the OIG’s review. 

During the course of our review we received information about other ATF 

firearms trafficking investigations that raised questions about how those 
3 

investigations were conducted. This report describes one of them, Operation 

Wide Receiver. We plan to issue a separate report on at least one other ATF 

investigation that involves an individual suspected of transporting grenade 

components into Mexico, converting them into live grenades, and then 

supplying them to drug cartels. The OIG also is completing its investigation of 

an allegation that one or more Department employees provided to a member of 

the media a copy of a May 2010 undercover operation proposal drafted by one 

of the ATF agents who publicly testified about his concerns with the conduct of 

Operation Fast and Furious. Additionally, we are reviewing allegations that 

two ATF agents who publicly testified about their concerns regarding Operation 

Fast and Furious were reassigned to positions within ATF that could have 

subjected them to retaliation. We also will continue to review information that 

has been provided to us to determine whether other reports are warranted on 

additional topics related to Operation Fast and Furious, such as information 

sharing among ATF, the Drug Enforcement Administration (DEA), and the FBI 

regarding key figures in parallel investigations. 

I. Methodology of the Investigation 

The OIG’s review focused on ATF’s handling of Operations Wide Receiver 

and Fast and Furious. In addition, the OIG reviewed the Department’s 

knowledge about those cases, as well as the Department’s statements to 

Congress about them. To review these issues, the OIG conducted interviews 

with more than 130 persons currently or previously employed by the 

Department, ATF, the DEA, the FBI, and the Department of Homeland Security 

(DHS). We interviewed many of these witnesses on multiple occasions. 

We interviewed several senior officials in the Department, including 

Attorney General Eric H. Holder Jr., Deputy Attorney General James Cole, 

Assistant Attorneys General Lanny A. Breuer and Ronald Weich, Chief of Staff 

and Counsel to the Attorney General and former Acting Deputy Attorney 

General Gary Grindler, and three of the five current or former Deputy Assistant 

Attorneys General (DAAG) who authorized the wiretap applications in 

Operations Wide Receiver and Fast and Furious.2

In addition, we interviewed former U.S. Attorneys for the District of 

Arizona Dennis K. Burke and Paul Charlton, former Criminal Chiefs Patrick 

 We also interviewed several 

former senior Department officials, including former Attorney General Michael 

B. Mukasey and former Deputy Attorney General David W. Ogden. 

 

2 One of the remaining DAAGs died in 2011. The other, Barry Sabin, told us he would 

not participate in an interview unless we obtained a court order unsealing the affidavits so that 

his attorney could be present during the interview. We did not ask the Department to seek 

such a court order.
4 

Cunningham and Lynette Kimmins, and the Assistant U.S. Attorneys most 

directly involved in Operations Wide Receiver and Fast and Furious.3

Among the ATF officials we interviewed were former Acting Director 

Kenneth E. Melson, former Acting Deputy Director William J. Hoover, former 

Assistant Director for Field Operations Mark Chait, former Deputy Assistant 

Director William G. McMahon, and Special Agent in Charge of ATF’s Phoenix 

Field Division William Newell. In addition, we interviewed virtually all of the 

ATF employees in ATF’s Tucson and Phoenix Field Offices who worked on 

Operations Wide Receiver and Fast and Furious. We also interviewed several 

ATF employees from other offices, including agents in El Paso, Texas; Las 

Cruces, New Mexico; and the ATF’s Mexico City Office. 

We were unable to interview several individuals with information relevant 

to our review. Charles Higman, the Resident Agent in Charge (RAC) in the ATF 

Tucson Office during Operation Wide Receiver, had direct management 

responsibility for the case and made several key decisions regarding how it was 

conducted. Higman retired from ATF in February 2009 and he did not respond 

to our repeated attempts to contact him. We also were unable to interview the 

Immigration and Customs Enforcement (ICE) agent who was assigned to 

Operation Fast and Furious on a full time basis and Darren Gil, the former ATF 

Attaché to Mexico who retired from the agency in December 2010. Both of 

these individuals declined through counsel our request for a voluntary 

interview. 

Similarly, Criminal Chief Cunningham, like Burke, declined through 

counsel our request for a follow-up interview regarding his involvement in the 

Department’s February 4, 2011, letter to Senator Grassley. We also requested 

an interview with Kevin O’Reilly, a member of the White House’s National 

Security Staff, to ask about communications he had in 2010 with former 

Special Agent in Charge Newell that included information about Operation Fast 

and Furious. O’Reilly declined our request through his personal counsel. 

We received over 100,000 pages of documents during the course of our 

review from the Department, ATF, the DEA, FBI, and DHS that we relied upon 

in drafting this report. These included investigative materials generated in 

Operations Wide Receiver and Fast and Furious, including documents obtained 

 

3 Although we interviewed former U.S. Attorney Burke concerning his office’s role in 

Operation Fast and Furious, Burke later resigned from the Department and declined through 

counsel our request for an interview concerning his conduct with respect to the Department’s 

February 4, 2011, letter to Senator Grassley. However, Burke was interviewed by 

Congressional investigators on this and other topics. At the OIG’s request, the staff of the 

House Committee on Oversight and Government Reform provided a copy of Burke’s transcribed 

interview and we cite to testimony Burke provided to Congressional investigators in this report.
5 

with grand jury subpoenas, as well as all 14 wiretap applications and other 

court documents filed in the investigations. We also reviewed thousands of emails from the accounts of current and former senior Department officials and 

ATF executives and employees, as well as e-mails from other agencies that were 

relevant to Operation Wide Receiver or Operation Fast and Furious.4

We also requested from the White House any communications 

concerning Operation Fast and Furious during the relevant time period that 

were sent to or received from (a) certain ATF employees, including Special 

Agent in Charge Newell, and (b) certain members of the White House National 

Security Staff, including Kevin O’Reilly. In response to our request, the White 

House informed us that the only responsive communications it had with the 

ATF employees were those between Newell and O’Reilly. The White House 

indicated that it previously produced those communications to Congress in 

response to a similar request, and the White House provided us with a copy of 

those materials. The White House did not produce to us any internal White 

House communications, noting that “the White House is beyond the purview of 

the Inspector General’s Office, which has jurisdiction over Department of 

Justice programs and personnel.” 

 Among 

the documents we reviewed in connection with the Department’s statements to 

Congress were e-mails, drafts of correspondence, and public testimony, 

including post-February 4 documents regarding the Department’s statements 

to Congress. 

II. Organization of this Report 

This report is divided into seven chapters, including this Introduction. 

Chapter Two provides relevant background information about federal firearms 

regulations, firearms trafficking enforcement, and several Department and ATF 

memoranda that concern efforts to combat firearms trafficking to Mexico. 

Chapter Three describes Operation Wide Receiver, which came to our 

attention due to allegations that, as in Operation Fast and Furious, ATF agents 

had failed to seize firearms despite having the legal authority and opportunity 

to do so. Operation Wide Receiver was conducted by agents in ATF’s Tucson 

office, which is part of ATF’s Phoenix Field Division. We describe in detail key 

events in the investigation. We then provide our analysis of the investigation, 

 

4 Because we were aware that AAG Breuer forwarded early drafts of the Department’s 

February 4, 2011, letter to Senator Grassley from his government to his personal e-mail 

account, we also requested from the Department any personal e-mail communications of 

certain Department officials that related to Operation Fast and Furious. The Department 

produced e-mails in response to our request, but we concluded none were relevant to our 

review.
6 

including the performance of the ATF agents and Department attorneys who 

were either aware of or involved in it. 

Chapter Four describes Operation Fast and Furious, and the operational 

and oversight roles in the investigation played by the ATF Phoenix Field 

Division and the U.S. Attorney’s Office. This chapter also provides the OIG’s 

analysis of key aspects of the conduct of the investigation, including decisions 

by ATF and the U.S. Attorney’s Office that set the strategy for the case, the 

issue of whether and when there was probable cause to seize firearms, and 

ATF’s use of cooperating Federal Firearms Licensees (FFLs) to advance the 

investigation. We also assess the consequences of using court-ordered 

electronic surveillance and the time it took the government to obtain 

indictments of Fast and Furious subjects. 

In Chapter Five, we describe the information that staff and managers at 

ATF and DOJ headquarters learned about Operation Fast and Furious from the 

investigation’s inception in late 2009 to January 25, 2011, the date of the press 

conference announcing the indictment. We also describe the action, and lack 

of action, by leadership officials in response to the information. We then 

provide our assessment of how ATF and Department officials executed their 

management responsibilities based on their knowledge of the investigation. 

Chapter Six addresses the Department’s response to the January 27 and 

31, 2011, letters that Senator Grassley wrote to the ATF raising concerns about 

ATF’s implementation of its Southwest Border firearms interdiction strategy. 

We describe how the Department formulated its February 4 response to Sen. 

Grassley and how it subsequently reassessed the representations made in that 

letter and reached the conclusion that those representations were inaccurate 

and that letter should be withdrawn. We also provide our analysis of 

Department officials’ statements to Congress in the February 4 letter and 

subsequent Congressional correspondence and testimony in view of their 

evolving knowledge of how ATF conducted its firearms trafficking 

investigations. 

In Chapter Seven, we summarize our overall assessment of the conduct 

of Operations Wide Receiver and Fast and Furious and the Department’s 

statements to Congress concerning these investigations. We also include in 

this chapter a description of specific remedial measures that ATF and the 

Department have implemented to address many of the problems that surfaced 

following Operation Fast and Furious, and provide our recommendations for 

additional remedial measures. In addition, we set forth our findings 

concerning individual performance in connection with the activities described 

in this report. 
7 

Appendix A contains the Department’s response to our report. 

Appendices B through F contain correspondence between the Department and 

Congress that are described in Chapter Six.
8 

PAGE INTENTIALLY LEFT BLANK
9 

CHAPTER TWO

BACKGROUND INFORMATION

In this chapter we provide background information useful for describing 

and understanding the conduct of Operations Wide Receiver and Fast and 

Furious. We first describe relevant aspects of federal firearms regulations, 

including the Bureau of Alcohol, Tobacco, Firearms and Explosives’s (ATF) 

function as regulator, the role of the federal firearms licensee, and firearms 

record-keeping and reporting requirements under federal law. We also briefly 

describe the interplay between federal and state firearms regulations, focusing 

specifically on the state of Arizona, where Operations Wide Receiver and Fast 

and Furious were conducted. We also provide some information about firearms 

laws in Mexico. 

We next describe firearms trafficking enforcement. This section 

describes pertinent ATF investigative guidelines and highlights the role and 

capabilities of ATF’s National Tracing Center. We also summarize the federal 

criminal statutes commonly used in firearms trafficking investigations such as 

Operations Wide Receiver and Fast and Furious, and briefly describe ATF 

special agents’ authority to seize firearms as evidence of a crime, to initiate 

forfeiture proceedings, and through abandonment. 

Lastly, we summarize several Department and ATF memoranda that 

concern efforts to combat firearms trafficking to Mexico that are relevant to our 

assessment of Operations Wide Receiver and Fast and Furious. 

I. Federal Firearms Regulations 

A. ATF and the Federal Firearms Licensee 

The Gun Control Act of 1968 (18 U.S.C. § 921, et seq.) is the primary 

federal law that regulates the firearms industry and firearms owners.5

 

5 The other major federal law is the National Firearms Act of 1934, 26 U.S.C. § 5801, et 

seq. This law limits the availability and taxes the manufacture and distribution of machine 

guns, short-barreled shotguns, short-barreled rifles, sound suppressors (silencers), and other 

similar weapons that were prevalent during the Prohibition era. The Act also requires that 

these weapons be registered with the National Firearm Registration and Transfer Record, and 

that owners notify the ATF when the weapons are transported across state lines.

 ATF, 

which was established as a separate component within the Department in 

January 2003, has primary jurisdiction over the administration and 

enforcement of the Act. ATF accomplishes this through licensing and 

inspections of gun dealers, or Federal Firearms Licensees. A Federal Firearms 
10 

Licensee (FFL) is a person, partnership, or business entity that holds a license 

issued by ATF that allows it to “engage in the business” of dealing, 

manufacturing, importing, or repairing firearms. Under federal law, a person is 

“engaged in the business” when he devotes time, attention, and labor to any of 

these activities with the “principal objective of livelihood and profit through the 

repetitive purchase and resale of firearms[.]”6

ATF’s licensing process is intended to ensure that only qualified 

individuals receive a license to sell guns. According to materials provided to us 

by ATF, the application process includes the submission of a completed 

questionnaire containing information about the applicant, the type of license 

sought, and the business premises, among other items. Applicants must also 

submit fingerprint cards for criminal background checks and are advised that 

they should expect to be contacted by an ATF investigator during the 

application process. 

An applicant who is granted a license receives several agency 

publications from ATF, including ATF’s Federal Firearms Regulations Reference 

Guide, Safety and Security Information for Federal Firearms Licensees, and 

Federal Firearms Licensee Quick Reference and Best Practices Guide. ATF also 

provides information about various ATF and Department components relevant 

to FFL operations, and a summary of state firearms laws and ordinances to 

new licensees. 

ATF Industry Operations Investigators are authorized to review FFLs’ 

records and inventory, to conduct annual warrantless inspections of FFLs to 

ensure compliance with federal recordkeeping requirements, to obtain an 

inspection warrant if needed, and to obtain a “reasonable cause warrant” if 

there is evidence of certain violations. Violations can result in the revocation of 

an FFL’s license. Investigators also work with ATF special agents in cases 

where criminal activity is suspected. 

B. Recordkeeping Requirements and the Form 4473 

There are several federal recordkeeping requirements for FFLs relevant to 

our review. First, each FFL must maintain an Acquisition and Disposition 

Record, which is a book or computerized log that records the acquisition (date 

and source) and disposition (date and transferee) of all firearms transactions 

involving the FFL. This record is made available to ATF investigators 

conducting inspections. 

 

6 A person who buys or sells firearms in connection with a personal gun collection or 

as a hobby is not considered “engaged in the business” and therefore does not require a license 

from ATF. See 18 U.S.C. § 921(a)(21).
11 

Second, federal law requires that FFLs report to ATF whenever they 

transfer more than one handgun within a 5-business day period to the same, 

unlicensed individual. See 18 U.S.C. § 923(g)(3). These transfers must be 

reported on an ATF form that includes full identifying information about the 

purchaser, the firearms, the date of transfer, and the FFL. ATF uses these 

multiple sales reports to verify gun dealers’ records, to detect suspicious 

activity, and to generate investigative leads. On July 12, 2011, ATF 

implemented an identical reporting requirement for sales of certain types of 

rifles.7

Third, each FFL, together with the unlicensed purchaser of a firearm, 

must complete an ATF Form 4473 Firearms Transaction Record, commonly 

referred to as a Form 4473, for every firearm sale. The completed form must be 

maintained by the FFL and made available to ATF upon request. The primary 

purpose of the Form 4473 is to determine whether a buyer is prohibited from 

lawfully possessing or receiving a firearm. Under current federal law, there are 

nine categories of persons prohibited from possessing or receiving a firearm, 

including persons under indictment for or convicted of a felony, persons 

adjudicated mentally defective or committed to a mental institution, persons 

convicted of a misdemeanor crime of domestic violence, or persons who are 

illegally in the United States. See 18 U.S.C. § 922(g), (n). The Form 4473 

requires the buyer to check a “yes” or “no” box in response to a series of 

questions that enumerates the nine disqualifying categories.

 The reporting requirement applies to sales that occurred on or after 

August 14, 2011, and is limited to FFLs located in Arizona, California, New 

Mexico, and Texas. 

8

 

7 The reporting requirement, which was approved by the U.S. Office of Management 

and Budget, applies to rifles having the following characteristics: (1) semi-automatic, (2) a 

caliber greater than .22, and (3) the ability to accept a detachable magazine. According to ATF 

documents, this is the category of firearms most frequently trafficked to Mexico from the 

United States and includes the weapons primarily sought by Mexican cartels. The OIG’s 

analysis in its September 2010 Project Gunrunner report of ATF data on Mexican crime guns 

recovered from fiscal year (FY) 2004 through FY 2009 confirmed the increase in the use of long 

guns by Mexican drug cartels. During this time, the percentage of crime guns recovered in 

Mexico that were long guns steadily increased each year from 20 percent in FY 2004 to 48 

percent in FY 2009. By contrast, handguns represented a steadily decreasing portion of crime 

guns recovered in Mexico, dropping from 79 percent in FY 2004 to 50 percent in FY 2009. In 

FY 2009 long guns and handguns were recovered at almost the same rate.

8 In addition to completing the Form 4473, FFLs are required to conduct a background 

check of each potential purchaser through the National Instant Criminal Background Check 

System (NICS) to verify that the potential purchaser is not prohibited from receiving or 

possessing a firearm. NICS is a computerized national records system established by the 

Brady Handgun Violence Prevention Act of 1993. The FBI is responsible for administering 

NICS, and ATF is responsible for ensuring that FFLs comply with the Brady law and

investigating criminal violations of the law.
12 

The Form 4473 also requires the buyer to certify that he is the actual 

purchaser of the firearm. Question 11.a of the Form 4473 states: 

Are you the actual transferee/buyer of the firearm(s) listed on this 

form? Warning: You are not the actual buyer if you are acquiring 

the firearm(s) on behalf of another person. If you are not the 

actual buyer, the dealer cannot transfer the firearm(s) to you. 

The Form 4473 also states that an individual is the actual buyer if the 

purchase is a gift to a third party. 

As the Form 4473 indicates, it is unlawful for an individual to purchase a 

firearm for someone else (unless it is a gift), and an FFL may not sell a firearm 

to anyone the FFL knows is not the actual purchaser. This aspect of the Form 

4473 is important because the individuals investigated in Operation Fast and 

Furious, and to a lesser extent in Operation Wide Receiver, were not prohibited 

under federal law from acquiring or possessing firearms; rather, they were 

investigated by ATF based on evidence indicating they were purchasing the 

firearms for others. ATF refers to such transactions as “straw purchases” and 

to the buyers who falsely complete the Form 4473 as “straw purchasers.” ATF 

defines a straw purchase as “the acquisition of a firearm(s) from a federally 

licensed firearms dealer by an individual (the ‘straw’), done for the purpose of 

concealing the identity of the true intended receiver of the firearm(s).” 

C. State Regulations and Mexican law 

Federal firearms laws regulate interstate and foreign commerce in 

firearms and assist states in regulating firearms within their borders. However, 

states may choose to regulate firearms more strictly than federal law as long as 

those regulations do not affirmatively authorize what federal statutes prohibit.9 

For instance, federal law does not forbid prohibitions on the possession of 

firearms by felons and the mentally ill, laws forbidding the carrying of firearms 

in sensitive places such as schools and government buildings, or laws imposing 

conditions and qualifications on the commercial sale of arms.10

Like several states, Arizona law does not impose any licensing or permit 

requirements for purchasing firearms, does not limit the firearms an individual 

may purchase by quantity or time period, and does not require background 

 Examples of 

state regulations include requiring a waiting period or license for firearms 

purchases or limiting the number of firearms that an individual can purchase 

within a defined time period. 

 

9 See Torraco v. Port Auth. of N.Y. and N.J., 615 F.3d 129 (2d Cir. 2010). 

10 District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).
13 

checks for firearms purchased at gun shows. Several witnesses told us that it 

is not unusual for individuals to buy multiple firearms during a single visit to 

an FFL. Some agents told us that they were surprised by the volume of 

firearms purchasing that occurs in Arizona as compared to their experience in 

non-Southwest Border states. 

The Mexican Constitution states that individuals have the right to 

possess firearms in their homes for their security and legitimate defense. The 

right is governed by the Federal Law of Firearms and Explosives, the Mexican 

equivalent of the United States’ Gun Control Act. Mexico has a federal firearms 

registry for all firearms that are possessed or acquired by citizens. Mexican law 

prohibits the commercial sale or purchase of a firearm, and requires that all 

sales go through the government. Also, there are particular types of firearms 

that can only be possessed by members of the Mexican military, including .223 

caliber rifles and 7.62 mm rifles, commonly referred to as AK-47-style rifles. 

Mexican citizens are allowed to possess smaller caliber pistols and rifles, 

subject to restrictions on quantity. 

II. Firearms Trafficking Enforcement 

A. ATF Investigative Guidelines 

ATF defines firearms trafficking as the unlawful diversion of firearms “for 

the purpose of profit, power, or prestige, in furtherance of other criminal acts 

or terrorism.” A firearms diversion is the movement of a firearm from lawful 

commerce into the illegal marketplace through an illegal method or for an 

illegal purpose. ATF’s principal guidance for firearms trafficking investigations 

is provided in the Firearms Enforcement Program Order, ATF Order 3310.4B, 

and the Firearms Trafficking Investigation Guide, ATF Publication 3317.1. 

The Firearms Enforcement Program Order defines common firearms 

trafficking terms, establishes general investigative procedures and 

responsibilities for managers and agents, describes ATF’s regulatory and 

enforcement relationship with FFLs, and discusses several investigative 

techniques. The Firearms Trafficking Investigation Guide is described as a 

comprehensive reference that “serves as a practical instrument to assist 

criminal investigators in the preliminary identification of illegal firearms 

trafficking indicators and in the thorough investigation of illegal firearms 

trafficking violations.” The guide defines common firearms trafficking terms, 

identifies relevant investigative resources, describes firearms trafficking 

indicators, summarizes relevant legal information, provides investigative 

checklists for particular types of trafficking investigations, and suggests 

measures state and local law enforcement can take to address firearms 

trafficking. 
14 

One of the significant issues in our review of Operations Wide Receiver 

and Fast and Furious – whether guns were allowed to “walk” – was not 

specifically addressed by the Firearms Enforcement Program Order or the 

Firearms Trafficking Investigation Guide. We could not identify any ATF 

investigative guideline or policy that uses, defines, or otherwise refers to the 

phrases “gun walking” or “walking guns,” terms that have been used publicly 

to describe a tactic utilized by ATF agents in Operations Wide Receiver and 

Fast and Furious. 

We asked witnesses during the course of this review whether they were 

familiar with the phrase “walking guns” and, if so, how they defined it. A few 

witnesses told us that they had not heard the phrase before allegations about 

the conduct of Operation Fast and Furious appeared publicly following the 

shooting death of Customs and Border Protection Agent Brian Terry on 

December 14, 2010. Most witnesses told us they had heard the phrase and 

generally described it as occurring in one of two scenarios. In the first scenario 

– one that all agents we interviewed considered improper – an ATF agent 

(typically in an undercover capacity) buys a gun for another person, in effect 

assuming the role of a straw purchaser, but then allows the other person to 

keep or resell the gun, thereby allowing the gun to “walk.”11

We did not identify any ATF policy in effect at the time of Operations 

Wide Receiver and Fast and Furious that expressly prohibited either of the 

“gun walking” situations described to us by witnesses. To the contrary, several 

witnesses told us that they believed a specific section of the Firearms 

Enforcement Program Order permitted “walking.” The section is entitled, 

“Weapons Transfers,” and provides in relevant part: 

 In the second 

scenario, an ATF agent has probable cause to believe an individual’s receipt, 

possession, or transfer of a gun is unlawful, but does not interdict and seize 

the gun despite having the ability and opportunity to do so. 

During the course of illegal firearms trafficking investigations, 

special agents may become aware of, observe, or encounter 

situations where an individual(s) will take delivery of firearms, or 

transfer firearm(s) to others. In these instances, the special agent 

may exercise the following options: 

 

11 ATF undercover operations, including operations involving the use of firearms, are 

governed by ATF Order 3250.1B, Undercover Operations. The current guidelines were issued 

on November 17, 2011, and superseded the previous Informant Use and Undercover 

Operations guidelines. The current guidelines refer to firearms and other tangible items used 

in an undercover operation as props and include specific requirements pertaining to their 

acquisition, retention, and use.
15 

(1) In cases where probable cause exists to believe a violation of 

law has occurred and the special agent determines there is a need 

to intervene in the weapons transfer (e.g., the recipient of the 

firearms is a known felon; it is known the firearms will be used in a 

crime of violence), the special agent shall do so but should place 

concerns for public safety and the safety of the involved special 

agents as the primary determining factor in exercising this option. 

(2) In other cases, immediate intervention may not be needed or 

desirable, and the special agent may choose to allow the transfer of 

firearms 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. 

Chapter K, Section 148 (Order 3310.4B). 

Several witnesses told us they believed that Subsection 2 of Section 148 

gave agents discretion not to intervene during or after weapons deliveries or 

transfers – even where probable cause exists to believe the activities were 

unlawful – if the agents determined that allowing deliveries or transfers to take 

place would advance the interests of the investigation. Other witnesses 

disputed this interpretation and told the OIG that the language in Section 148 

permitting some discretion should be read to include a requirement that agents 

maintain surveillance of the guns delivered or transferred until the decision is 

made to interdict. As we discuss in Chapter Four, Section 148 was cited in 

support of the decision to allow weapons transfers to take place during 

Operation Fast and Furious.12

B. ATF’s National Tracing Center 

A firearms trace refers to tracking the history of a “crime gun” – a firearm 

that is illegally possessed, used in a crime, or suspected to have been used in a 

crime. The history includes identifying the source of the firearm (the 

manufacturer and/or importer), the chain of distribution (the wholesaler 

and/or retailer), and the first unlicensed purchaser of the firearm. ATF’s 

National Tracing Center is the only operation in the world that conducts 

firearms traces. Traces can link a suspect to a firearm in a criminal 

investigation, identify potential firearms traffickers, and detect domestic and 

international patterns in the sources and kinds of crime guns. 

 

12 On November 3, 2011, ATF issued new guidance for firearm transfers that 

supersedes Order 3310.4B. We summarize this guidance, as well as other recent policies 

implemented by ATF in response to Operation Fast and Furious, in Chapter Seven of this 

report.
16 

Trace requests can be made by any federal, state, or local law 

enforcement agency in the United States or abroad and are submitted by 

completing a specific ATF form that requires the requester to provide 

information about the circumstances of the recovery, the agency making the 

request, the firearm (such as serial number, manufacture, type, caliber, and 

model), and the possessor of the firearm. If the trace is successful, ATF 

provides the requester the identity of the first unlicensed buyer of the firearm, 

the FFL from which the firearm was purchased, and the date of purchase. 

Firearms trace requests can be submitted by mail or facsimile. Since 

January 2005, trace requests can also be submitted through eTrace, a secure, 

Internet-based system that allows users from accredited domestic and 

international law enforcement agencies to submit requests, monitor the 

progress of the trace, and receive results electronically. The National Tracing 

Center considers eTrace to be the most efficient method for law enforcement to 

submit trace requests, and to receive and analyze data.13

The National Tracing Center also maintains the Suspect Guns Database. 

This database contains identifying information submitted to the National 

Tracing Center by ATF agents and investigators about firearms that are 

suspected of being illegally trafficked but have not been recovered.14

If an agent has entered a gun in the Suspect Guns Database, the 

National Tracing Center will not release information about the gun unless the 

 The 

information includes the purchaser data associated with the firearm, the 

purchase date, the identity of the FFL, and the number of the ATF investigation 

to which the firearm is connected. If a suspect gun is subsequently recovered 

and traced, the National Tracing Center will notify the investigator who 

submitted the firearm as a suspect gun of its recovery and provide the 

investigator with the contact information for the individual who submitted the 

trace request. In this way, the investigator can gather additional information 

about the associated crime and the gun’s recovery. 

 

13 In December 2009, ATF began deploying a version of eTrace – known as Spanish 

eTrace – in Mexico. This version of eTrace is designed to receive trace requests and provide 

trace results in Spanish. In connection with the OIG’s review of ATF’s Project Gunrunner, ATF 

reported that it had deployed Spanish eTrace to all Spanish-language eTrace users in March 

2010, including Mexican federal law enforcement. However, the OIG learned in June 2010 that 

Mexican laboratories were not using Spanish eTrace. ATF began redeploying Spanish eTrace in 

Mexico in November 2010 and training Mexican personnel in all 31 states.

14 ATF’s Firearms Trafficking Investigation Guide provides the following example: 

multiple sales reports and FFL records indicate that an individual purchased 25 firearms, 15 of 

which have been recovered in crimes and traced; the remaining 10 firearms have not been 

recovered and are now suspected of being illegally trafficked. These 10 firearms are entered 

into the Suspect Guns Database.
17 

agent who submitted the suspect gun approves the release. When the National 

Tracing Center notifies an agent that a trace has been requested on a suspect 

gun, the agent is required to advise whether the case is active, and if so, 

whether the trace results should be provided to the requester. This feature is 

intended to prevent the release of information that might jeopardize an active 

investigation by, for example, alerting the FFL of a recovery. In instances 

where the agent instructs the National Tracing Center not to release the trace 

results, the requester receives a message that the trace could not be completed. 

This is the response regardless of whether the requester is an ATF or non-ATF 

employee. As discussed in Chapter Four, the case agents for Operation Fast 

and Furious routinely entered all guns purchased by subjects in the 

investigation into the Suspect Gun Database, which had the effect of blocking 

the National Tracing Center from reporting trace results for these guns to 

requesters such as other ATF agents or other law enforcement agencies during 

the course of the Fast and Furious investigation. 

C. Applicable Federal Criminal Statutes and Straw Purchasing 

There is no federal statute specifically prohibiting firearms trafficking or 

straw purchasing. Instead, these activities are investigated by agents and 

charged by prosecutors under a variety of criminal statutes depending on the 

circumstances of each particular case. ATF’s investigative guidelines and the 

Department’s Federal Firearms Manual identify the following statutes as 

commonly used in straw purchasing cases: 

• 18 U.S.C. § 922(a)(1)(A), Willfully engaged in firearms business 

without a license. This charge is used against an individual who 

is not a licensed dealer but who buys and sells guns in a business 

capacity. 

• 18 U.S.C. § 922(a)(6), Knowingly making a false statement or 

presenting false identification in connection with a firearm 

purchase. This charge is used against an individual who makes a 

false statement or presents false identification that is intended or 

likely to deceive the FFL with respect to a fact that is material to 

the lawfulness of the sale, such as information pertaining to the 

buyer’s identity, age, state of residency, or certification that the 

buyer is not a “prohibited person” under the Gun Control Act. 

• 18 U.S.C. § 922(g)(1), Knowing possession of a firearm by a 

convicted felon. In the straw purchasing context, this charge is 

used against an individual with a felony conviction for whom a 

straw purchaser buys a firearm. As a convicted felon, the 
18 

individual is a “prohibited person” under the Gun Control Act and 

therefore may not possess a firearm.15

• 18 U.S.C. § 924(a)(1)(A), Knowingly making a false statement. 

This charge is used against an individual who knowingly makes a 

false statement to an FFL or in the records the FFL is required to 

maintain. For example, this charge is brought against an 

individual who stated on the Form 4473 that he was the actual 

purchaser of the firearm, when in fact he was purchasing the 

firearm for someone else (and not as a gift). Unlike a false 

statement charged under 18 U.S.C. § 922(a)(6), a false statement 

charged under § 924(a)(1)(A) need not be “intended or likely to 

deceive the firearms dealer” nor “material to the lawfulness of the 

sale” – the only requirement is that the statement is false. 

According to witnesses we interviewed, this difference makes 

violations of § 924(a)(1)(A) often easier to prove than a violation of § 

922(a)(6). 

Operations Wide Receiver and Fast and Furious were investigations of 

straw purchasers involved in trafficking firearms to Mexico, and the above 

violations were among those ultimately charged against defendants in both 

cases. Although false statements violations have a maximum prison sentence 

of either 5 or 10 years, straw purchasers typically receive lesser sentences 

under the applicable federal sentencing guidelines because of their lack of 

criminal history.16

A false statement charge under §§ 922(a)(6) and 924(a)(1)(A) requires the 

government to prove that a defendant knew the statement was false, but does 

not require the government to prove that the defendant knew making the false 

statement violated the law. To put it more squarely in the context of a straw 

purchasing case, the government must show that at the time the defendant 

bought a firearm, he intended to purchase it for another individual (not as a 

gift) and therefore knew it was false to state that he was the actual purchaser. 

 

15 Straw purchasing also occurs when the straw purchaser buys a gun for an 

individual who is not prohibited under the Gun Control Act from possessing a firearm. In 

Operation Fast and Furious, the straw purchasers were buying guns for an individual who was 

not prohibited from possessing firearms.

16 On December 2, 2010, the five United States Attorneys in the Southwest Border 

states sent a letter to the United States Sentencing Commission requesting that in light of the 

national security implications of arms trafficking, amendments be made to the firearms 

trafficking-related guidelines “that would provide modest but meaningful increases in penalties 

for straw purchasing offenses.” The letter stated, “the sentences received by straw purchasers 

fail to reflect the seriousness of the crime or the critical role played by these defendants in the 

trafficking and illegal export of weapons. Simply put, straw purchasing and illegal arms 

exporting go hand in hand, and both must be addressed together.”
19 

ATF has identified circumstances that it considers indicative of straw 

purchasing and gun trafficking. These include the following: 

• multiple sales by a purchaser who appears on past gun traces, 

• sales of five or more firearms to a single buyer, 

• sales of multiple firearms at the same FFL on the same day, 

• trace requests for firearms purchased as part of a multiple sale, 

• trace requests with a “short time-to-crime” (the time that passes 

between the purchase of a gun and its recovery in connection with 

a crime), 

• sales paid for in cash, and 

• multiple sales of guns considered “weapons of choice” for drug 

trafficking organizations. 

ATF lists these and other indicators in the Firearms Trafficking Investigation 

Guide, and based on interviews we conducted during the course of this review, 

the indicators are well understood by ATF agents. 

ATF also educates FFLs about straw purchasing indicators. As part of 

the license application process, each FFL receives literature that includes 

information on that topic. In July 2000, ATF partnered with the National 

Shooting Sports Foundation to design an educational program to assist FFLs in 

the detection and possible deterrence of straw purchasing. The program, called 

“Don’t Lie for the Other Guy,” educates FFLs to better identify potential straw 

purchasers and publicizes the potential penalties for participating in illegal 

firearms purchases. The program includes educational seminars and kits for 

FFLs, and encourages retailers to work closely with their local ATF office to 

deter straw purchases.17

III. Firearms Seizure and Forfeiture 

 In addition, ATF distributed pamphlets to FFLs as 

part of Project Gunrunner that reminded FFLs about challenges ATF and the 

industry face from firearms trafficking, reiterated the possible signs of straw 

purchasing, and encouraged FFLs to report suspicious purchasing activity to 

ATF. 

ATF special agents are authorized by federal law to make seizures of 

property, including firearms. Property seized by agents generally falls into two 

 

17 The program’s focus is on preventing prohibited persons under the Gun Control Act 

from obtaining firearms. However, the straw purchasing indicators apply equally to straw 

purchases made for non-prohibited persons.
20 

categories: property seized as evidence of a crime and property seized for the 

purpose of initiating a forfeiture action. ATF also authorizes agents to take 

custody of property that is abandoned by an owner. 

A. Property Seized as Evidence 

According to ATF regulations, an agent may seize property solely for its 

use as evidence where there is probable cause to believe that the property will 

“aid in a particular apprehension or conviction.” However, if ATF also has a 

statutory basis to forfeit the firearm, ATF regulations require the agent to seize 

the property for forfeiture and simultaneously use it as evidence. In addition, 

property that originally is seized as evidence can subsequently be determined 

to be subject to forfeiture. If this occurs, the agent is required to initiate 

forfeiture proceedings. 

B. Property Seized for Forfeiture 

An agent is authorized to seize property for the purpose of initiating a 

forfeiture action where there is probable cause to believe the property was 

used, intended to be used or involved in a violation of federal law for which ATF 

has primary jurisdiction. The Gun Control Act is one such federal law. Under 

the Act, firearms and ammunition can be forfeited if there is probable cause to 

believe they are involved in, used in, or intended to be used in certain 

violations of the Act. 18 U.S.C. § 924(d). The requisite criminal intent in some 

of the statutes that can predicate forfeiture is “knowing” and in others is 

“willful.”18 The violations we described above that are commonly used in straw 

purchasing cases are among the violations that can predicate a forfeiture 

action. 18 U.S.C. § 924(d)(1).19

Property seized by an agent for forfeiture is forfeited only after the agency 

completes a legal proceeding that is intended to give individuals with a 

potential claim to the property an opportunity to contest the forfeiture. The 

three potential legal forfeiture proceedings are administrative, civil judicial, and 

criminal judicial. 

Administrative forfeiture does not require any action by a federal court. 

ATF initiates the process by sending a notice of forfeiture to any known 

 

18 A “knowing” violation of the law occurs when the defendant had knowledge of the 

facts that constitute the offense (e.g., in a false statements case, the defendant knew that the 

statement was false). A “willful” violation occurs when the individual was aware that the 

conduct was unlawful. See Bryan v. United States, 524 U.S. 184, 191-99 (1998).

19 Examples of other violations that can be used to initiate forfeiture proceedings 

include 21 U.S.C. §§ 801 et seq. (The Controlled Substance Act), 18 U.S.C. § 844 (Explosives), 

and 18 U.S.C. §§ 2342-2343 (Contraband Cigarettes).
21 

interested parties. The agent who seized the property is responsible for making 

reasonable and continuing efforts to properly and accurately identify potential 

claimants. ATF also publishes notice of the forfeiture action in a newspaper of 

general circulation. If nobody files a claim with ATF contesting the forfeiture, 

the property is forfeited to the agency and the process ends. However, if an 

individual files a claim with ATF, the proceeding moves to federal court where 

the government files a claim against the property. This civil forfeiture 

proceeding can be pursued independent of any criminal prosecution of the 

crime that led to the seizure. In the civil proceeding, the government must 

establish by a preponderance of the evidence that the seized property was used 

or was involved in a violation of federal law.20

Criminal judicial forfeiture is an action included as part of a prosecution. 

In this situation, the seized property is included in the indictment that is 

brought against a defendant. To prevail on a criminal forfeiture, the 

government must prove by a preponderance of evidence the nexus between the 

underlying crime and the seized property. Under the Gun Control Act, if the 

owner or possessor of a firearm is acquitted of charges brought against him, 

the government must return the seized firearms or ammunition. 

C. Abandonment 

ATF authorizes agents to take custody of property that has been 

voluntarily abandoned to the agency by the owner. Under this circumstance, 

the owner signs an ATF form that includes some personal information and a 

description of the property. The owner attests by signing the form that he 

“voluntarily abandon[s] all interest in and rights or claims to the [] property in 

order that appropriate disposition may be made [by ATF].” The owner also 

waives any right to receiving notice from ATF of its intent to forfeit the property 

and any right to challenge the forfeiture. 

IV. The Southwest Border and Relevant Department Memoranda and 

Initiatives 

The scale of firearms trafficking from the United States to Mexico is well 

established. According to various public reports and testimony, violence along 

the U.S.-Mexico border increased significantly after 2006 in response to the 

Mexican government’s efforts to combat Mexican drug trafficking organizations. 

A large number of the weapons used by these organizations originated in the 

United States, and the types of weapons sought were increasingly powerful and 

 

20 The process for administrative and civil forfeiture proceedings is governed by the 

Civil Asset Forfeiture Reform Act, 18 U.S.C. § 983.
22 

lethal. The situation continues to pose a national security challenge for Mexico 

and a significant organized crime challenge for the United States. 

We identified several Department and ATF memoranda that described 

efforts to combat firearms trafficking to Mexico that were drafted prior to and 

shortly after Operation Fast and Furious was initiated in November 2009. We 

briefly summarize the memoranda below. 

A. April 27, 2009, Guidelines for Consideration of OCDETF 

Designation for Firearms Trafficking Cases Related to Mexican 

Drug Cartels 

According to the Department’s Criminal Division website, the Organized 

Crime and Drug Enforcement Task Force (OCDETF) Program was established 

in 1982 to combat organized drug traffickers and is today “the centerpiece of 

the Attorney General’s drug strategy to reduce the availability of drugs by 

disrupting and dismantling major drug trafficking organizations and money 

laundering organizations and related criminal enterprises.” The program 

operates nationally and includes participants from the 94 U.S. Attorney’s 

Offices, the Department’s Criminal and Tax Division, and the following 

agencies: ATF, the Federal Bureau of Investigation, the Drug Enforcement 

Administration, the Internal Revenue Service, the U.S. Coast Guard, the U.S. 

Immigration and Customs Service, the United States Marshal’s Service, and 

state and local agencies. The OCDETF Program has guidelines that regional 

coordinating groups apply to investigations that are proposed for OCDETF 

designation. 

On April 27, 2009, the Director for the OCDETF Program issued a 

memorandum that cited the connection between firearms trafficking and the 

increasing levels of cartel-related violence, and emphasized the role the 

OCDETF Program has in the government’s efforts to address firearms 

trafficking to Mexican drug trafficking organizations. According to the 

memorandum, the program guidelines for OCDETF designation “provide wide 

latitude for the designation of cases targeting the trafficking of firearms by 

criminal organizations associated with the Mexican cartels.” The memorandum 

stated, “[i]nvestigations principally targeting firearms trafficking, rather than 

the underlying drug trafficking, are eligible for OCDETF designation if there is a 

sufficient nexus between the firearms and a major Mexican drug trafficking 

organization, provided the investigation otherwise meets OCDETF case 

standards.” 

B. June 17 and June 25, 2009, National Firearms Trafficking 

Enforcement Strategy and Enforcement Plan Memoranda 

The Acting Assistant Director for ATF’s Field Operations issued two 

memoranda in June 2009 that addressed firearms trafficking enforcement. 
23 

The memoranda were issued to increase ATF’s emphasis on firearms trafficking 

enforcement. 

The national implementation plan sought to improve ATF’s trafficking 

enforcement strategy “through increased uniformity and accountability” and by 

requiring that all field offices pursue firearms trafficking investigations. The 

plan required each SAC to implement several measures, including designating 

a Firearms Trafficking Coordinator to be responsible for, among other things, 

firearms trafficking assessments, liaison with other law enforcement agencies, 

and coordination with ATF Headquarters and other field offices. The plan also 

required the SAC to ensure that all special agents are sufficiently trained on 

the use of ATF’s case management system to ensure that information pertinent 

to firearms trafficking is recorded. In addition, the plan called for each SAC to 

seek the local U.S. Attorney’s Office’s support of the enforcement strategy, and 

to work with area law enforcement counterparts to enhance coordination 

relating to firearms trafficking matters. 

The implementation plan also “re-emphasized” several investigative 

techniques relevant to firearms trafficking, including investigations of corrupt 

FFLs and FFL inspections, and enforcement operations at guns shows. The 

plan also emphasized the aggressive pursuit of straw purchasers and stated 

that obtaining felony convictions against these individuals prevents them from 

making future lawful purchases and that straw purchaser prosecutions can 

lead to more complex investigations of the underlying conspiracies. 

C. January 7, 2010, Strategy for Combating the Mexican Cartels 

On January 7, 2010, the Deputy Attorney General issued the 

Department’s Strategy for Combating Mexican Cartels (Cartel Strategy). The 

Cartel Strategy was developed over several months by the Southwest Border 

Strategy Group, a newly created body that included representation from the 

Office of the Deputy Attorney General, the Department’s Criminal Division, the 

five Southwest Border states, and several federal agencies, including ATF. 

According to the January 7, 2010, memorandum, the Cartel Strategy was 

based on the belief that a large share of the criminal activity occurring along 

the Southwest Border was perpetrated by a relativity small number of criminal 

organizations, and that the most effective means of combating the problem was 

“the use of intelligence-based, prosecutor-led multi-agency task forces, that 

simultaneously attack all levels of, and all criminal activities of, the operations 

of the organizations.” 

The memorandum stated that the Cartel Strategy was not a “radical 

departure from efforts that are already underway in the Department,” but 

rather was an effort to define a single strategic plan that would be coordinated 

by the Southwest Border Strategy Group. Among the Cartel Strategy’s several 

key objectives was to reduce the flow of illegal weapons, ammunition, 
24 

explosives, and currency from the United States to Mexico. The memorandum 

stated that ATF intelligence showed that the presence of firearms and 

explosives trafficking into Mexico had a direct nexus to the cartels’ national 

domestic drug distribution network. The memorandum continued, “given the 

national scope of this issue, merely seizing firearms through interdiction will 

not stop firearms trafficking to Mexico. We must identify, investigate, and 

eliminate the sources of illegally trafficked firearms and the networks that 

transport them.” 

D. September 8, 2010, Project Gunrunner – a Cartel-Focused 

Strategy 

On September 8, 2010, ATF issued agency-wide a memorandum and 

document entitled, “Project Gunrunner – A Cartel Focused Strategy.” The 

strategy document stated that it was drafted to reflect the increased national 

emphasis on firearms trafficking enforcement related to the Southwest Border, 

as well as the importance of identifying and prioritizing trafficking 

investigations with a nexus to Mexican Drug Trafficking Organizations (DTOs) 

and cartels. 

The strategy document called for conducting investigations in “a more 

creative and comprehensive manner” and through greater use of the OCDETF 

program. The strategy placed greater emphasis on “multi-defendant 

conspiratorial cases that focus on persons who organize, direct, and finance 

cartel-related firearms and explosives trafficking operations.” The strategy 

document did not provide detailed guidance about how field offices should 

conduct such investigations, but revised how ATF Headquarters monitored and 

supported them. The strategy document also stated that ATF determined that 

three particular cartels are most responsible for acquiring firearms in the 

United States. Based on the geographic area these cartels control in Mexico, as 

well as tracing data, the Houston and Phoenix Field Divisions were given 

primary responsibility for investigating trafficking connected to these cartels. 

The strategy document identified several of the challenges associated 

with investigating straw purchasers, including their lack of criminal history 

and therefore the lack of prosecutorial interest in them, and the reality that 

straw purchasers are readily replaced by criminal organizations and typically 

are not subject to significant criminal penalties. The strategy document stated 

that ATF should continue to investigate straw purchasers to hold them 

accountable and make them ineligible to purchase or possess firearms in the 

future, but that agents also should investigate the larger conspiracy and exploit 

the straw purchasers for information and cooperation that will further the 

investigative goal of disrupting or dismantling the trafficking organization. 

The strategy document also recognized several practical considerations in 

firearms trafficking investigations that may require concluding the 
25 

investigations or changing investigative tactics before identification of persons 

directly affiliated with the drug trafficking organizations. The strategy 

document provided two examples: high volume trafficking investigations (a) 

where numerous diverted firearms purchased by one or two individuals are 

being used in violent crimes and recovered by law enforcement, or (b) in which 

ATF cannot reasonably determine over an extended period of time where or to 

whom the firearms are being trafficked. The strategy document instructed that 

in such situation, the SACs “must closely monitor and approve such 

investigations, assessing the risks associated with prolonged investigation with 

limited or delayed interdiction.” 

E. November 2010 OIG Review of ATF’s Project Gunrunner 

In November 2010, the OIG issued its report, “Review of ATF’s Project 

Gunrunner.” That review evaluated the effectiveness of ATF’s implementation 

of Project Gunrunner, the agency’s national initiative launched in April 2006 to 

reduce cross-border weapons trafficking.21

Our report made 15 recommendations to ATF to help improve its efforts 

to combat firearms trafficking from the United States to Mexico. Among these 

was a recommendation that ATF focus on developing more complex conspiracy 

cases against higher level gun traffickers and gun trafficking conspirators. The 

review found that a majority of the cases ATF referred for prosecution from FY 

2004 to FY 2009 involved one defendant and only 5 percent included more 

than six defendants. Federal prosecutors told the OIG during its review that 

larger, multi-defendant conspiracy cases would better disrupt the trafficking 

organizations, but ATF personnel told us that the approach in Southwest 

Border field offices was to investigate lower ranking members of trafficking 

organizations and refer them for prosecution. 

ATF concurred with the OIG’s recommendation and stated that it had 

and will continue to develop complex conspiracy cases. We did not recommend 

or describe in our report any specific strategies or tactics agents could use to 

develop such investigations.

 

21 The complete November 2010 report is on the OIG’s website at 

http://www.justice.gov/oig/reports/ATF/index.htm. A draft of the report was provided to ATF 

in September 2010.
26 

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27 

CHAPTER THREE

OPERATION WIDE RECEIVER

I. Introduction 

During the course of our review of Operation Fast and Furious, the OIG 

received information about several other ATF investigations that possibly used 

a strategy and tactics similar to those allegedly employed in Operation Fast and 

Furious, including the tactic of failing to seize firearms despite having a 

sufficient legal basis to do so. One such case, Operation Wide Receiver, was 

noteworthy because it informed our understanding of how these tactics were 

used by ATF more than three years before Operation Fast and Furious was 

initiated. Further, unlike in Operation Fast and Furious, where some ATF 

agents told us that they could not arrest straw purchasers because the U.S. 

Attorney’s Office for the District of Arizona had an unreasonable position on 

the evidence required in order to make an arrest, we found that this issue was 

not present in Operation Wide Receiver. Additionally, Operation Wide Receiver 

illustrated the failure of management in ATF’s Phoenix Field Division to alert 

ATF Headquarters to the use of these tactics, and the knowledge of the U.S. 

Attorney’s Office in their use. 

Operation Wide Receiver was particularly significant because it took 

place in part under the supervision of William Newell, the same Special Agent 

in Charge (SAC) who oversaw Operation Fast and Furious, and because 

attorneys and officials in the Department’s Criminal Division who reviewed 

Operation Wide Receiver for possible prosecution learned that firearms 

purchased by subjects during the investigation had “walked.” This knowledge 

of “gun walking” in Operation Wide Receiver by senior officials in the 

Department’s Criminal Division and by ATF was significant to us as we 

evaluated the ATF’s and the Department’s response to Congressional inquiries 

about ATF firearms trafficking investigations along the Southwest Border in the 

wake of the shooting death of Agent Terry. We therefore decided to review 

Operation Wide Receiver both to assess the conduct of the investigation and 

the Department’s communications with Congress in the aftermath of the death 

of Agent Terry.22

 

22 In addition, on November 7, 2011, we received a letter from the Chairman of the 

Senate Judiciary Committee, Senator Patrick Leahy, requesting that we review Operation Wide 

Receiver. On November 21, 2011, we informed Senator Leahy that Operation Wide Receiver 

would be included within the scope of our review.
28 

Operation Wide Receiver was conducted in two parts between March 

2006 and December 2007 by agents in ATF’s Tucson Office, which is part of 

ATF’s Phoenix Field Division. The investigation involved several straw 

purchasers, one of whom was a subject in both parts of the case. During the 

course of the investigation, the subjects purchased hundreds of firearms from 

a Federal Firearms Licensee (FFL) who was working as an ATF confidential 

informant and who recorded his in-person and telephonic communications 

with the subjects. Based on these recordings and other evidence – including 

court-ordered electronic surveillance – ATF agents knew that the subjects were 

purchasing firearms for other persons, converting firearms to illegal weapons, 

and transporting firearms to Mexico. However, during the course of Operation 

Wide Receiver, agents did not arrest any subjects and seized less than a 

quarter of the more than 400 firearms purchased. 

Although investigative activity ceased in Operation Wide Receiver by 

December 2007, the case sat idle with the U.S. Attorney’s Office without any 

indictments until September 2009, when the Department’s Criminal Division 

assigned a trial attorney to prosecute the case. The trial attorney concluded 

upon reviewing the case file that ATF had not interdicted the majority of the 

firearms purchased by the Operation Wide Receiver subjects. She included 

this information in e-mails to her supervisors and in two prosecution 

memoranda. In April 2010, Jason Weinstein, a Deputy Assistant Attorney 

General (DAAG) in the Criminal Division, reviewed the prosecution 

memorandum for Operation Wide Receiver I and concluded that ATF had 

allowed guns to “walk.”23

II. Methodology of the OIG’s Review 

 Weinstein briefed Lanny Breuer, the Assistant 

Attorney General (AAG) of the Criminal Division, about the case and then held 

a meeting with senior ATF personnel to discuss potential public relations 

challenges with the prosecution. The subjects were finally indicted in May and 

October 2010, after a prosecutor from the Criminal Division took over 

responsibility for the case. 

To conduct the Operation Wide Receiver review, we reviewed reports of 

investigation and other documents from the ATF’s investigative file, as well as 

case notes, memoranda, and affidavits from files maintained by the U.S. 

Attorney’s Office for Operation Wide Receiver and Operation Iron River, an 

Organized Crime Drug Enforcement Task Force (OCDETF) investigation 

conducted around the same time. We also reviewed each of the five 

applications and court orders to conduct electronic surveillance, as well as 

 

23 Weinstein held previous positions with DOJ, including as an Assistant United States 

Attorney in New York City and Baltimore. He worked for the DOJ OIG from 1997 to 1999.
29 

consensual recordings made by the cooperating FFL. In addition, we reviewed 

thousands of e-mail communications of individuals directly involved in the 

conduct and management of the case and e-mail communications of 

Department officials in order to determine what, if any, knowledge these 

officials had about Operation Wide Receiver while the case was being 

conducted. 

We also reviewed a 594-page journal maintained by the cooperating FFL, 

who made contemporaneous notes about his interactions with the subjects in 

Operation Wide Receiver and several other investigations, as well as with ATF 

agents and supervisors. We include information in this chapter from his 

journal where it is relevant and corroborated by other sources. Additionally, 

because agency-wide technical issues prevented ATF from preserving e-mails 

between November 2007 and August 2008, that source of contemporaneous 

documents was unavailable to us and so we include information from the FFL’s 

journal entries during this period where it is consistent with the general 

posture of the case. 

We interviewed over 40 witnesses as part of the Operation Wide Receiver 

review. These included the ATF agents and supervisors responsible for the 

investigation and their chain of command within ATF’s Phoenix Field Division. 

We also interviewed several prosecutors at the U.S. Attorney’s Office who had 

roles in the case, and the Department trial attorney who finally indicted the 

case in May and October 2010. In addition, we interviewed the Department’s 

Criminal Division officials who in April 2010 had discussions about the tactics 

employed in Operation Wide Receiver. 

Our interviews included several witnesses no longer employed with the 

federal government, such as former U.S. Attorney Paul Charlton and the 

prosecutor primarily responsible for the case during 2006 and 2007. We also 

interviewed former Attorney General Michael Mukasey and members of his staff 

about what, if any, knowledge they had about Operation Wide Receiver or the 

tactics used in the investigation. 

However, we were unable to interview Charles “Chuck” Higman, a 

Resident Agent in Charge (RAC) in the Tucson Office who had direct 

management responsibility for Operation Wide Receiver and who made several 

key decisions regarding the conduct of the investigation.24

 

24 ATF Tucson is a resident office of the Phoenix Field Division. During Operation Wide 

Receiver, the Tucson office had two enforcement groups, each led by a RAC who reported to an 

Assistant Special Agent in Charge (ASAC) in Phoenix and to the SAC. Higman became a RAC 

in November 2005 and led the Tucson II group, which was designated as a Violent Crime 

Impact Team (VCIT) and before 2006 primarily worked with local police to reduce firearmsrelated violent crime in targeted neighborhoods. Another RAC led the Tucson I group, which 

 Higman retired 

(Cont’d.)
30 

from ATF in February 2009, and he did not respond to our repeated attempts 

to contact him. 

III. Organization of this Chapter 

This Chapter is divided into four sections. In the first section, we 

describe Operation Wide Receiver I, the part of the investigation that was 

conducted from March to November 2006. This section describes the 

inception, strategy, and development of the case, and specific examples of the 

subjects’ purchasing activity. This section also describes the involvement of 

the U.S. Attorney’s Office and ATF’s Phoenix Field Division in the investigation 

and why subjects were not prosecuted during this phase of the case. 

The next section covers Operation Wide Receiver II, the part of the 

investigation that was conducted from February to December 2007. We 

describe the suspected criminal activity that caused agents to resume the 

investigation and the efforts ATF made to develop the case beyond the straw 

purchaser level. These efforts included the use of court-authorized electronic 

surveillance and attempts to coordinate the investigation with the Government 

of Mexico. We describe the results of these efforts and how the investigation 

came to a close, again, without any prosecutions. 

The third section of this Chapter describes the eventual prosecution of 

subjects in Operation Wide Receiver. We begin by describing how the case was 

handled by the U.S. Attorney’s Office and why it failed to indict any subjects. 

We then describe the circumstances of the decision by the Department’s 

Criminal Division to assume responsibility for prosecuting the case, including 

its judgment by September 2009 that ATF agents “walked” firearms during the 

investigation. We also summarize the indictments in May and October 2010 

and the results of the prosecution. 

In the fourth section of this Chapter, we provide the OIG’s analysis of the 

conduct of Operation Wide Receiver. 

 

primarily handled firearms trafficking cases. During Operation Wide Receiver, the ASAC with 

responsibility for the Tucson office left for a detail in June 2006 and was reassigned to ATF 

Headquarters during his absence. The subsequent ASAC retired in early 2007 following 

numerous conflicts with Newell, and after that a series of short-term Acting ASACs oversaw 

Tucson until the assignment of a permanent ASAC in June 2008. Reflecting this turnover, the 

Tucson agents we interviewed could not recall who the ASAC was during Operation Wide 

Receiver.
31 

IV. Operation Wide Receiver I (2006) 

A. Inception and Early Investigation of the Case 

In late February 2006, the owner of a Tucson-based FFL contacted an 

agent in ATF’s Tucson Office with information that a customer had purchased 

six AR-15 lower receivers at a gun show the previous weekend and had asked 

about purchasing 20 additional AR-15 lower receivers that the FFL had on 

order.25

On March 2, 2006, Special Agent Brandon Garcia, then a new agent in 

ATF’s Tucson Office, interviewed the FFL and learned that Gonzalez planned to 

pick up the 20 AR-15 lower receivers when the FFL received them and had 

asked the FFL about buying as many as 50 AR-15 lower receivers “each time.” 

Garcia told us that the FFL had provided leads to ATF in the past, and that his 

initial impression was that the FFL was a “Good Samaritan informant” with a 

clean record who “wanted to do the right thing.” Based on the information 

provided by the FFL, ATF officially opened an investigation the same day. 

 The FFL told the agent that he suspected the customer – Gregory 

Gonzalez – was a straw purchaser. The FFL told us that several factors made 

him suspicious of Gonzalez, including Gonzalez’s age (18 years old ) and 

interest in buying all 20 lower receivers that were on order, and that Gonzalez 

bought the guns with “wads of cash” from his pocket. The FFL also said that 

he saw Gonzalez on the second day of the gun show, and that Gonzalez had a 

bag containing an additional seven or eight lower receivers purchased from 

someone else. 

The FFL received the 20 AR-15 lower receivers on March 7, 2006. That 

same day, the Assistant U.S. Attorney (AUSA) assigned to the case, Jennifer 

Maldonado, authorized the ATF to request that the FFL make consensual 

recordings of his conversations with Gonzalez and others.26

 

25 AR-15 rifles include a shoulder stock, a receiver, and a barrel. The receiver is 

formed by two components: an upper receiver or “upper,” to which the barrel is connected, 

and a lower receiver, which receives the ammunition clip and holds the trigger. Atl. Research 

Mktg. Sys. v. Troy, 616 F. Supp. 2d 157, 160 (D. Mass. 2009). The lower receiver houses the 

operating parts and identifies the serial number and thus is a “firearm” within the meaning of 

18 U.S.C. § 921(a)(3)(B). See U.S. v. Blankenship, 552 F.3d 703, 706-07 (8th Cir. 2009). 

Individuals purchasing lower receivers from an FFL therefore must execute a Form 4473 and 

pass a background check.

 The FFL agreed to 

ATF’s request and on March 15, 2006, recorded a conversation during which 

26 No search warrant or other court approval is required for consensual electronic 

monitoring, but a law enforcement agency must obtain advice from an AUSA that the 

monitoring is legal and appropriate. Additionally, although not applicable here, consensual 

monitoring of face-to-face conversations in certain sensitive circumstances requires written 

approval from the Director or an Associate Director of the Criminal Division’s Office of 

Enforcement Operations (OEO). See U.S. Attorney’s Manual §§ 9-7.000, 9-7.302.
32 

Gonzalez told the FFL that he would purchase the firearms at a gun show in 

Mesa, Arizona, on March 18, 2006. 

According to ATF records, agents intended to conduct surveillance of 

Gonzalez’s purchase at the gun show using an undercover agent stationed in 

the FFL’s booth and then maintain surveillance of the vehicles agents believed 

were transporting the firearms. If the vehicles began heading toward the 

border, ATF planned to notify the Port of Entry (POE) and have Customs and 

Border Protection (CBP) pull the vehicle aside for a secondary inspection. ATF 

planned to arrest Gonzalez and obtain a search warrant for his known 

residences if CBP found the lower receivers at the border. Garcia told us that 

at this time he was unclear about the direction of the case. He said that based 

on discussions with some of the senior agents in the office, he thought that 

Gonzalez would buy the receivers and drive to the border, and ATF would stop 

him there.27

On March 18, 2006, Gonzalez, accompanied by a man later identified as 

Ismael Betancourt, arrived at the gun show to buy the 20 lower receivers from 

the FFL.28

 

27 One 20-year veteran of ATF’s Tucson office told us that before Operation Wide 

Receiver, all of ATF’s trafficking cases were very similar in their simplicity: ATF would get a tip 

from an FFL about a buyer who wanted a large number of firearms and information about 

when the transaction was scheduled to take place, and would set up surveillance and arrest 

the buyer when he headed southbound or at the border. Sometimes the initial buyer would 

cooperate with ATF, and agents would arrest the actual buyer when he showed up to take 

possession of the guns. If the guns went to a stash house, agents would speak with subjects at 

the stash house or conduct a search of the stash house. This agent told us that ATF 

interdicted guns as a matter of course and had been “content to make the little cases,” but that 

Wide Receiver represented a “different direction” from ATF’s typical practice.

 Gonzalez filled out the Form 4473s and paid $5,300 in cash for the 

firearms. While waiting for the NICS background check, Gonzalez asked the 

FFL about ordering 50 more AR-15 lower receivers and the FFL told him that a 

purchase that large would require a deposit. Gonzalez looked at Betancourt, 

who nodded his head “yes,” and agreed to make a down payment. According to 

an ATF report of investigation, Gonzalez said that he would contact the FFL at 

the gun show the next morning to order the receivers “if the money was 

available.” An undercover ATF agent helped load the 20 receivers Gonzalez had 

already purchased into Betancourt’s car. Betancourt then drove off in his car, 

and Gonzalez drove away in a white truck. Agents followed Betancourt and 

Gonzalez to a restaurant. Agents did not observe weapons being transferred 

between the vehicles in the restaurant parking lot, so they continued 

surveillance of the car when Gonzalez and Betancourt drove in opposite 

directions after leaving the restaurant. However, agents later lost visual 

28 Betancourt was not positively identified until May 24, 2006.
33 

contact with the car because Betancourt began “driving erratically” and 

“dropped” the surveillance. 

The next morning, Gonzalez failed to meet the FFL at the gun show to 

make the down payment, and ATF believed that the surveillance operation had 

been compromised. On March 20, 2006, Garcia sent an e-mail to RAC 

Higman, his supervisor, stating that AUSA Maldonado had advised Garcia that 

“we are good for the 922A6 [false statements charge] for Gonzalez.”29

On March 24, 2006, Gonzalez contacted the FFL and told him that 

he wanted to purchase $10,000 worth of receivers, which the FFL said would 

be about 37 receivers. On March 28, 2006, in a phone call consensually 

monitored and recorded by ATF, Gonzalez told the FFL that he was on his way 

to Tucson to make a down payment on the receivers. At ATF’s direction, the 

FFL arranged to meet Gonzalez at a fast-food restaurant and wore a recording 

device for the meeting. When Gonzalez arrived, he provided the FFL an 

envelope containing $2,500 and told him that he needed to keep the total 

amount of the purchase under $10,000 so that the Internal Revenue Service 

(IRS) would not be notified.

 

Maldonado told us she did not recall being asked to determine whether or 

when subjects in Operation Wide Receiver were eligible to be charged with a 

violation, but that she “must have said that if [Garcia] said that to [Higman].” 

Garcia told us that he did not recall any discussions with Maldonado leading 

up to this e-mail and did not think there was sufficient evidence at that time to 

prosecute Gonzalez on straw purchaser charges because Gonzalez was driving 

his work truck that day and could have returned to work while Betancourt took 

the firearms to Gonzalez’s house. Thus, according to Garcia, it was not clear 

that Gonzalez actually “transferred” the firearms to Betancourt. Garcia said 

that he and Higman discussed conducting surveillance to observe a transfer, 

then interdicting and seizing the firearms and making arrests at the border. 

30

 

29 Garcia was a trainee when he was assigned to Operation Wide Receiver. Garcia told 

us that Higman closely supervised the case and had Garcia “on a tight leash for quite a while.” 

Indeed, agents told us that nothing happened in Operation Wide Receiver without Higman’s 

approval and that, for example, Higman determined when to end surveillances on particular 

subjects or stash houses. As noted previously, Higman did not respond to our repeated 

attempts to contact him for an interview.

 The FFL told Gonzalez that the IRS would not be 

notified. Gonzalez also told the FFL he wanted to purchase 50 firearms rather 

30 Businesses receiving cash payments over $10,000 in a single transaction or two or 

more related transactions with the same buyer must report the payments to the IRS and the 

Financial Crimes Enforcement Network (FinCEN) on IRS/FinCEN Form 8300. See 26 U.S.C. 

§ 6050I(a); 31 U.S.C. § 5331; see also Internal Revenue Manual § 9.5.5.3.6. “Structuring” cash 

transactions to fall under the $10,000 threshold and thereby cause a business to evade these 

reporting requirements is prohibited and is a federal felony offense. See 26 U.S.C. § 6050I(f)(1); 

33 U.S.C. § 5324(b).
34 

than only 37 and wanted to order an additional 50. In addition, Gonzalez told 

the FFL that he planned to take the firearms to a shop near Phoenix where 

they would be converted to fully automatic weapons. The FFL warned Gonzalez 

that converting the weapons was illegal, but Gonzalez said he just dropped the 

guns off and stayed out of it and “was clean.” 

Gonzalez originally intended to complete the purchase at a gun show on 

April 1, 2006, but told the FFL in a recorded telephone call that he had to 

change this to April 2 because his bank could not complete the money transfer 

in time and he had to travel to San Diego to pick up the money for the 

purchase. Similar to Gonzalez’s March 18 purchase, ATF agents planned to 

conduct surveillance of the April 2 purchase. The plan also included 

coordinating with agents in ATF’s San Diego Office if Gonzalez traveled there to 

pick up the money and placing a tracking device on his vehicle to help locate 

the machine gun conversion shop previously mentioned. 

We received conflicting information about whether agents intended to 

take any enforcement action. According to Garcia, agents intended to execute 

search and arrest warrants if they located the machine shop. However, 

contemporaneous e-mails indicate that the surveillance was intended to locate 

the shop and observe Gonzalez deliver the firearms to it, but not to seize the 

firearms or take other enforcement action. For example, on March 30, 2006, 

RAC Higman wrote the following in an e-mail to a Supervisory Special Agent in 

the Phoenix Field Division, which was supporting surveillance of the suspected 

machine shop: 

The bandits have put a $ deposit toward buying 50 this Sat., and 

intend on 50 more in the next week or two. We have verified 26 to 

date; the USAO is on board. We are looking to let these 50 walk 

while identifying the location/subject who is doing the conversions 

with an eye to doing Search/Arrest warrant the next go ‘round. 

Similarly, a Phoenix Group Supervisor stated in an e-mail on March 30, 

2006, to agents assisting the surveillance that, “Our mission is to locate the 

illegal gun smith. There is no projected enforcement activity or surveillance 

beyond locating the alleged conversion factory.” In a reply to this e-mail, 

Higman told Phoenix agents, “We have two AUSA[s] assigned to this matter, 

and the USAO @ Tucson is prepared to issue Search and Arrest Warrants. We 

already have enough for the 371 [conspiracy] and 922 a6 [false statements] 

charges, but we want the Title II manufacturing and distribution pieces also - 

we want it all.”31

 

31 This refers to Title II of the Gun Control Act of 1968, which amended the National 

Firearms Act (NFA). The NFA regulates certain categories of weapons, including machine guns, 

(Cont’d.)
35 

In the end, no surveillance was necessary on April 2 because the 

purchase did not occur. Gonzalez called the FFL and told him that he was 

having trouble with his bank and did not have the money. After several 

unsuccessful attempts to complete the sale, the FFL called Gonzalez on April 

11 and told him he had two days to get the money, or the FFL would sell the 

receivers to a dealer in Tucson. As discussed below, this purchase was 

eventually made to an associate of Gonzalez, Jonathan Horowitz. 

Although the FFL had been cooperating with the ATF on the investigation 

for several weeks, he was not officially opened as a confidential informant (CI) 

until March 30, 2006. On that day, the FFL was photographed and 

fingerprinted at ATF’s Tucson Office and signed an agreement that specified he 

would act at ATF’s direction, would not participate in unlawful activities unless 

necessary to the investigation and authorized in advance, and would not 

undertake publication or dissemination of any information or material from the 

investigation without authorization from ATF. The agreement also provided 

that ATF would pay the FFL for any expenses he incurred, but it did not 

guarantee compensation or a reward for his services. 

The ATF informant policy in effect at the time required the SAC of the 

field division to approve the use of informants who provided information on an 

ongoing basis. Lester Martz was the SAC of the Phoenix Field Division in 

March 2006. The informant agreement, however, was signed and witnessed by 

Tucson agents, and we have been unable to determine whether Martz or other 

supervisors approved the use of the FFL as an informant.32

Newell, who became SAC of the Phoenix Field Division in June 2006, told 

us that he disagreed with the use of an FFL as an informant because there is a 

conflict of interest where ATF both regulates an FFL and pays him for 

information. Newell said that he was “less than pleased” and expressed his 

concerns to the Acting ASAC when he found out that Tucson agents were using 

the FFL as an informant, but said he did not believe they could change the 

approach and still make the case because the FFL was also the main witness. 

 

parts designed and intended for use in converting weapons into machine guns, silencers, 

destructive devices, and short-barreled rifles and shotguns. See 26 U.S.C. § 5845. These 

weapons must be registered in the National Firearms and Transfer Record, and may only be 

registered by authorized manufacturers, makers, and importers. See 26 U.S.C. §§ 5801, 5802, 

5861. Possession, receipt, manufacturing, transport, or delivery of unregistered NFA weapons 

is illegal. See 26 U.S.C. §§ 5861, 5872.

32 Martz retired on May 31, 2006, and William Newell reported to Phoenix as Martz’s 

successor as SAC on June 19, 2006.
36 

B. Horowitz and Betancourt Take Over Straw Purchases in April 

2006 

On April, 12, 2006, the day after the FFL told Gonzalez that he had two 

days to complete the purchase of the 50 AR-15 lower receivers, an individual 

named Jonathan Horowitz contacted the FFL and told him that Gonzalez was 

in trouble with “the boss” for missing a deadline, and that Horowitz would be in 

charge of purchasing the firearms. The FFL and Horowitz agreed to meet at the 

FFL’s house on April 13, 2006, to complete the sale. In a phone call to the FFL 

the next morning, Gonzalez identified Horowitz as one of the people who 

provided him with money to purchase firearms and complained that “they” 

were trying to “cut [Gonzalez] out of the deal.” 

ATF agents again made plans to conduct surveillance. An undercover 

agent was placed in the FFL’s house and other agents established surveillance 

outside. According to ATF reports, the goal of the surveillance was to “facilitate 

identification of[,] and controlled delivery of firearms to[,] suspected firearms 

traffickers.” The plan did not include seizing the firearms. Instead, agents 

planned to install a tracking device on the vehicle transporting the firearms in 

order to locate the machine gun conversion shop. 

On April 13, 2006, Horowitz and Betancourt arrived at the FFL’s house 

to complete the sale. Horowitz completed the Form 4473s, underwent a NICS 

background check, and then paid $10,700 in cash for the 50 AR-15 lower 

receivers. He and Betancourt loaded the firearms into Betancourt’s car, and 

agents attached a tracking device to the vehicle when the two went back into 

the FFL’s house.33

According to ATF records, Horowitz and Betancourt made an unplanned 

visit to the FFL at a gun show on April 22, 2006, and provided him with a 

$5,000 down payment for an additional 50 AR-15 lower receivers. Horowitz 

also asked the FFL about acquiring grenade launchers that would fit under AR15-type barrels. After several conversations over the next month, Horowitz and 

the FFL agreed to meet at a gun show in Phoenix, Arizona, on May 21, 2006, to 

complete the sale of the 50 AR-15 lower receivers. 

 ATF agents and officers from the Tucson Police Department 

(TPD) maintained surveillance on Betancourt’s vehicle until approximately 

10:00 p.m. that evening, and agents resumed surveillance the next day as 

Betancourt traveled to various locations. Agents did not locate the machine 

gun conversion shop and did not take any enforcement action. 

 

33 Agents installed a “bird dog,” a wireless GPS tracking device that emits periodic 

signals indicating a subject’s location but does not log and maintain data about where the 

vehicle goes.
37 

ATF agents conducted surveillance of the purchase on May 21, 2006. 

Betancourt gave the FFL an envelope containing $8,200 in cash. The FFL 

helped load the firearms into the back seat and trunk of Betancourt’s car, and 

Horowitz and Betancourt drove away. ATF agents terminated surveillance after 

Horowitz took the firearms to his house. 

During the recorded conversation that took place at the May 21 

purchase, Betancourt and Horowitz told the FFL that their “boss” in Tijuana 

wanted them to convey his thanks for their business relationship and his 

apologies for any trouble that the FFL may have encountered while dealing with 

Gonzalez. Despite hearing this statement, Garcia told us he believed that the 

agents did not have the authority to seize the firearms or make an arrest on 

that day because Horowitz purchased the firearms and took them to his own 

house, so agents could not prove that a violation occurred. Garcia told the OIG 

that the recorded statements Horowitz and Betancourt made about buying the 

firearms for their “boss” in Tijuana did not have, in his opinion, any legal 

significance, but did lead agents to suspect a possible connection to the 

Arellano Felix Organization, a Tijuana-based cartel. We found no evidence that 

Garcia consulted with the U.S. Attorney’s Office in reaching his legal 

conclusions at that time. 

Mark Latham, a more experienced Tucson ATF agent who worked on 

surveillances and assisted with paperwork in Operation Wide Receiver, held a 

different view. He told us the recorded statements about taking firearms to 

Tijuana would have been sufficient for probable cause to arrest the subjects 

and to seize the weapons. Latham said that Tucson agents believed from the 

beginning of the investigation that there were possible cartel implications and 

viewed the case as an opportunity to take down the Arellano Felix 

Organization. Latham told us that Operation Wide Receiver represented a 

“change in direction” in which Higman “supervised and directed” agents in 

implementing the weapons transfer policy in ATF Order 3310.4B, which we 

described in Chapter Two. According to Latham, that policy enabled agents to 

“see where the guns go, the people, the places, addresses, vehicles” rather than 

doing site arrests and immediate “knock and talks” or obtaining immediate 

arrest and search warrants.34

 

34 A “knock and talk” occurs where an agent has reasonable suspicion to believe an 

individual is a straw purchaser engaged in firearms trafficking and approaches the individual 

to ask about the firearms that were purchased.

 Latham said agents intended to develop 

information that would allow them to see the network and connect individuals 

to the cartel, take the steps necessary to work up to Title III wiretaps, and then 

start interdicting firearms. 
38 

In fact, around this same time, ATF obtained other evidence potentially 

linking Horowitz and Betancourt to Mexico and indicating that they received 

the money used to pay for the firearms from sources there. For example, on 

May 10, 2006, agents tracked Betancourt’s car to Tijuana, Mexico and phone 

records for Horowitz and Gonzalez revealed numerous phone calls and texts to 

Mexico. On May 25, 2006, agents conducted a search of Betancourt’s trash 

and discovered a receipt for an $8,000 withdrawal from a U.S bank dated April 

10, 2006, three days before Horowitz purchased the first 50 AR-15 lower 

receivers from the FFL.35

C. Involvement of the U.S. Attorney’s Office and ATF Division 

Counsel and Discussion of “Walking” Guns in June and July 

2006 

 After this withdrawal, the account had no available 

credit and a zero account balance. Bank records obtained by ATF indicated a 

pattern of transactions involving significant funds, potentially confirming 

earlier statements that the subjects received money from a source in San Diego 

to purchase firearms for the “boss” in Tijuana. 

Maldonado, who handled firearms cases as part of the Project Safe 

Neighborhoods Unit of the Tucson Office, was the first prosecutor assigned to 

Operation Wide Receiver. She was responsible for the case until she left the 

office in November 2007. 

Maldonado told the OIG she understood that Operation Wide Receiver 

was “not just a straw purchaser case,” that Gonzalez and Horowitz had 

engaged in “obvious” straw purchases, and that the investigation intended to 

get to the “larger fish.” She also told us that Tucson agents were not able to 

realize this goal and she understood that agents were not interdicting firearms 

because surveillance repeatedly failed. Maldonado compared the investigation 

to a drug case in which she understood that law enforcement officers can elect 

not to seize small quantities of drugs so that they can build a larger case and 

identify upstream conspirators. 

According to Maldonado, her involvement in Operation Wide Receiver 

primarily was limited to obtaining subpoenas for ATF. Indeed, her involvement 

in Operation Wide Receiver appears to have been extremely limited: her case 

notes and case-related e-mails were sporadic and sparse, and Garcia told us he 

had little interaction with her. Consistent with this, Maldonado told us that 

during a proactive investigation like Operation Wide Receiver her role was not 

so significant that it would have required the involvement of a supervisor, and 

 

35 Tucson agents later learned that the money used to purchase firearms was flown 

into Phoenix on a monthly basis by a relative of Betancourt who lived in San Diego or Tijuana, 

Mexico.
39 

she did not include Operation Wide Receiver in a list of cases prepared for her 

supervisor, Raquel Arellano, in early January 2007.36

Because Maldonado had no experience with electronic surveillance, an 

AUSA from the OCDETF Unit of the Tucson Office, Dave Petermann, was asked 

sometime in 2006 to assist her with eventual pen registers and Title III 

applications, as well as with other court orders.

 Maldonado also told us 

that she did not view it as her role to tell ATF how to run the investigation. 

However, former U.S. Attorney Paul Charlton noted that being a prosecutor 

“involved telling agents no sometimes.” 

37

During the May 21, 2006, purchase described earlier, Betancourt and 

Horowitz told the FFL that their “boss” was interested in obtaining from him 

10.5 or 11-inch “short” uppers for the AR-15 lower receivers, which they had 

been purchasing through the Internet. Agents sought to determine whether 

ATF could allow the FFL to sell these “short” uppers, or whether this would 

 Petermann had been an 

attorney in the Project Safe Neighborhoods Unit (the Unit to which AUSA 

Maldonado was assigned) before moving to the OCDETF Unit and had 

prosecuted a firearms trafficking case the previous year based on falsified Form 

4473s and the defendant’s confession. Although we found no record 

memorializing Petermann’s assignment to Operation Wide Receiver, he told us 

that he was involved in the case periodically until his departure from the office 

in July 2007. Petermann told us that Maldonado handled the day-to-day work 

on Operation Wide Receiver but that he met weekly with Higman regarding a 

separate OCDETF case, Operation Iron River, and discussed Operation Wide 

Receiver during those meetings. Petermann also told us that his OCDETF 

supervisor, Anne Mosher, at times voiced concerns about him spending time on 

a non-OCDETF matter (Operation Wide Receiver was not an OCDETF case), 

but we received no indication that she had knowledge of or otherwise was 

involved in Operation Wide Receiver. 

 

36 Wide Receiver was one of 93 cases that Maldonado was handling as of January 

2007. Witnesses from the Tucson U.S. Attorney’s Office told us that caseloads were high: 

attorneys handling immigration cases could have as many as 300 to 400 cases, and drug 

attorneys generally had between 100 and 150 cases. Attorneys handling firearms cases had 

slightly fewer cases, usually between 75 and 100. Lynette Kimmins, the Tucson Criminal Chief 

in 2006 and 2007, told us that the office handled 4,000 to 5,000 felony cases per year, 

including cases charged as felonies that resulted in misdemeanor pleas.

37 Calling data is obtained through the use of pen registers and trap and trace devices. 

Pen registers record outgoing information about telephone calls, while trap and trace devices 

record incoming information, such as the originating phone number. See 18 U.S.C. § 3127(3)-

(4). These allow real-time electronic monitoring of a telephone user’s calls (excluding content) 

for a limited time period, usually 60 days. See 18 U.S.C. § 3123(c). To obtain an order for a 

pen register and trap and trace device, a law enforcement agency must certify to a court of 

competent jurisdiction that the information likely to be obtained is relevant to an ongoing 

criminal investigation. See 18 U.S.C. §§ 3123(a), 3122(b)(2), 3127(2) (2012).
40 

result in the sale of a prohibited weapon. Combining an upper receiver under 

16 inches in length with an AR-15 lower receiver produces a short-barreled 

rifle, a firearm that is regulated under the NFA. Even if the parts are not 

assembled, someone who buys an AR-15 lower receiver and a “short” upper 

has possession of an NFA firearm if he has actual or constructive possession of 

both parts, and the pieces can be readily restored to operate.38

On May 31, 2006, in preparation for a meeting with the U.S. Attorney’s 

Office about this issue, Latham contacted ATF’s Division Counsel in the 

Phoenix Field Division. Latham stated in an e-mail: 

We are now looking at [having the FFL at ATF’s direction] sell[] 

the straw purchaser 10.5 inch uppers along with the AR-15 lowers 

. . . . [W]e will have to let some of these 10.5 inch uppers and 

lowers walk, so in essence we will be putting NFA weapons on the 

street . . . . We are looking at this as a long term investigation 

against the Arellano Felix Organization since the guns are going to 

[Tijuana] and the investigation will possibly be going to a T-III. 

The Division Counsel replied that the sale of the unassembled uppers and the 

AR-15 lower receivers meet the criteria for possession of an NFA weapon. The 

Division Counsel continued: 

Whether you are authorized to allow an NFA weapon back on the 

streets is a policy decision, not a legal one. I believe that it is 

against ATF policy to allow NFA weapons back on the street, but 

perhaps you can get special permission from HQ and the SAC 

because this case involves the Arellano Felix Organization, and will 

also need to show the need for the T-III. 

The Division Counsel told the OIG that he did not think that it would be 

“unethical in the sense of . . . morality” to allow NFA weapons to “walk,” but 

that it would have been contrary to ATF policy and would have required 

approval from both the SAC and ATF Headquarters. 

On June 13, 2006, Higman, Garcia, and Latham met with AUSAs 

Maldonado and Petermann to discuss the NFA issue. Petermann told the OIG 

that Higman said ATF’s legal counsel thought that allowing NFA weapons to 

walk would be “morally reprehensible or objectionable,” and that this raised 

“red flags” for him and Maldonado. Handwritten notes taken by Maldonado at 

this meeting state, 

 

38 See U.S. v. Kent, 175 F.3d 870, 873-75 (11th Cir. 1999); see also U.S. v. LaGue, 472 

F.2d 151, 152 (9th Cir. 1973) (constructive possession sufficient to establish possession of 

unregistered guns in violation of the National Firearms Act). 
41 

Do pen registers to see who [the straw purchasers] are talking to 

then: 2 routes possible 

(1) they want to cut out the source of supply for uppers - could put 

in an undercover to give them uppers. Could help wall off C.I. 

Problem: entrapment (easy to defeat - they want it (10 1/2 inch 

uppers), they know it’s illegal.) (But we’ve then provided them with 

a full NFA weapon.) 

** WOULD THIS OFFICE SUPPORT THAT, & LETTING THEM 

WALK? 50/mo. 

(2) T-3 - one of the 3 on the phone to i.d. where the uppers 

[purchased through the Internet] are coming from & where they’re 

putting them together. That’s the violation – NFA. 

Maldonado told the OIG that Higman specifically requested at this 

meeting that she send the question about allowing NFA weapons to “walk” up 

her chain of command. The following day, Maldonado sent an e-mail to the 

then-Criminal Chief for the U.S. Attorney’s Office, Lynette Kimmins, requesting 

a meeting to discuss “office-policy-type questions” raised by Higman. This 

meeting apparently did not take place until June 29, 2006. 

Kimmins said that she did not specifically recall the substance of the 

meeting, but she said that she remembered Petermann and Maldonado telling 

her what ATF wanted to do and that there was the potential for “guns going 

South.” Maldonado told us that she and Petermann presented Higman’s 

question to Kimmins, and that Kimmins said the decision should be made by 

the U.S. Attorney and directed Maldonado to draft a memorandum asking his 

position on introducing a source of upper receivers that would be used to make 

illegal firearms and then “letting them walk.” Petermann told the OIG that they 

also discussed the seizure of 17 AR-15 receivers mailed by Betancourt on June 

14, 2006. We describe this incident in the next section.

Two weeks later, on July 13, 2006, Maldonado forwarded to Kimmins a 

memorandum she drafted to then-U.S. Attorney Charlton that summarized the 

June 13 meeting with ATF. The memorandum described Operation Wide 

Receiver as an investigation into an organization with possible cartel ties in 

which several individuals were “purchasing large quantities of lower receivers, 

in bulk,” combining these lower receivers with “short” uppers purchased from a 

separate source, and potentially distributing illegal firearms into Tijuana, 

Mexico. The memorandum stated that the purchasers of the lower receivers 

were “clearly not the actual owners of the weapons” and that Tucson agents 

wanted to introduce an informant to provide the “short” uppers to “lead to the 

discovery of more information as to the ultimate delivery location of these 

firearms and/or the actual purchaser. The memorandum also stated that 

Higman asked about “the possibility of allowing an indeterminate number of 
42 

illegal weapons... 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,” noting that Higman “pointed out that these exact same 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.” The 

memorandum also noted that ATF’s legal counsel had “moral objections” and 

opposed the proposed method of furthering the investigation. 

Kimmins forwarded the memorandum to Charlton the next day and 

Charlton replied that he was meeting with ATF SAC Newell on the following 

Tuesday and would discuss the issue with him then. We did not locate any 

contemporaneous record of conversations between Charlton and Newell about 

the memorandum or the decision made by the U.S Attorney’s Office. However, 

according to an entry in the FFL’s journal, an e-mail sent by the FFL to Garcia 

later in the investigation stated, “I know that the brass didn’t want me to 

provide the short top ends AND lowers to the guys in Phoenix.”39

Charlton told the OIG that he did not recall Operation Wide Receiver. 

Indeed, we found no evidence that Charlton received any information about 

Operation Wide Receiver other than this memorandum. Neither Kimmins nor 

Maldonado recalled receiving an answer from Charlton in response to this 

memorandum, and we have no record of a decision or any subsequent 

communications about it. Maldonado told us that she surmised that Charlton 

must not have approved the request because Tucson agents did not introduce 

an informant to sell uppers. 

 The FFL told 

us he did not sell “short” upper receivers to Horowitz and Betancourt as part of 

Operation Wide Receiver, and we found no evidence that the plan proposed in 

the memorandum came to fruition otherwise. 

 We provided Charlton a copy of Maldonado’s memorandum and, after 

reviewing it, he told us that he would not have approved an operation in which 

ATF allowed an individual acting at its direction to sell weapons to suspected 

straw purchasers, and then allowed those guns to go to Mexico. Charlton told 

us, however, that he did not recall the circumstances surrounding the 

Maldonado memorandum. Charlton also told us that he did not have an 

independent recollection of receiving or reading the memorandum or meeting 

 

39 As noted, the FFL kept a journal about his interactions with straw purchasers and 

ATF agents and supervisors during Wide Receiver and several other cases. The FFL told us 

that he tried to make notes immediately after events took place, and that he never waited more 

than two or three days to do so. While several agents told us that the FFL “embellished” or 

“sensationaliz[ed]” some events in his journal, they acknowledged that other information was 

accurate. As noted above, we include information from his journal where it is relevant and 

corroborated by other sources or, for the period between November 2007 and August 2008, 

where it is consistent with the general posture of the case.
43 

with Newell to discuss the investigation. Charlton said that he spoke with 

Maldonado in 2011, after the allegations about Operation Wide Receiver were 

reported in the press, and that she assured him the request in the 

memorandum was not approved. Charlton told us that he had also spoken to 

Petermann, who assured him that “as a general principle he never let or 

approved letting guns walk.” 

Charlton also told us that he recalled a conversation in which Newell told 

him about a plan to work with Mexican law enforcement to allow weapons to 

travel under ATF surveillance from Tucson to the border, where they would be 

intercepted by Mexican law enforcement. Charlton said that Newell was 

excited about this plan and thought that he could implement it because of his 

training and experience in Colombia, where Newell had served as the attaché. 

Charlton said that Newell’s plan seemed reasonable with a couple of caveats – 

namely, if you were certain of the surveillance taking place on the U.S. side and 

were working with vetted law enforcement in Mexico. Charlton told us he did 

not recall whether this plan was carried out before he left the U.S. Attorney’s 

Office in January 2007. 

Newell also told the OIG that he had no knowledge of the memorandum 

until the press began reporting about it and did not remember meeting with 

Charlton about this issue. Newell told us that Higman did not inform him that 

Higman had asked for an opinion from the U.S. Attorney’s Office about the 

tactics outlined in the memorandum. Newell said that he received a briefing 

paper about Operation Wide Receiver shortly after he became the SAC of the 

Phoenix Field Division in mid-June 2006 and later held a meeting with Higman 

to discuss the case around September 2006.40

Newell also told the OIG that he understood that Tucson agents used 

standard investigative techniques, including surveillance, to determine what 

had happened to the firearms and identify the people who were directing and 

 According to Newell, there was 

no discussion in either the briefing paper or the September 2006 meeting 

about ATF facilitating the sale of illegal firearms. Newell said that Higman told 

him during the September 2006 meeting that he (Higman) had been in contact 

with ATF’s Mexico City Office (MCO) to arrange to work with Mexican law 

enforcement to maintain surveillance of firearms into Mexico, identify the 

ultimate recipients of the firearms, and establish that the firearms had in fact 

been trafficked across the border. 

 

40 The briefing paper described Wide Receiver as an international traffic in arms (ITAR) 

investigation in which 3 subjects had purchased 126 firearms from an FFL during 4 separate 

transactions. It stated that one of the subjects had told the FFL that the purchased firearms 

were transported to his “boss” in Tijuana, Mexico, and that Tucson agents had tracked a target 

vehicle to Tijuana, highlighting the possible connection between this activity and the Arellano 

Felix Organization.
44 

financing the straw purchasers. Newell placed the responsibility for agents 

failing to interdict firearms during Operation Wide Receiver on the U.S. 

Attorney’s Office, telling the OIG that Tucson agents repeatedly were told that 

there was not probable cause to interdict and seize firearms or to make arrests, 

and that agents could not take enforcement action without the express 

approval of the U.S. Attorney’s Office. We found no evidence supporting 

Newell’s claim. As discussed above, Maldonado told Garcia that there was 

“enough” evidence for a false statements charge against Gonzalez as early as 

March 20, 2006, and we found nothing suggesting that Tucson agents ever 

sought authorization from the U.S. Attorney’s Office to make arrests or 

interdict firearms in Operation Wide Receiver but were denied. 

D. Refusal by San Diego ATF Office to Assist Tucson ATF Office in 

Delivery of 17 AR-15 Lower Receivers in June 2006 

At around the same time ATF agents were engaging the U.S. Attorney’s 

Office about allowing NFA guns to walk, agents were also continuing their 

efforts to identify additional individuals and locations associated with the 

activities of Betancourt and Horowitz. On June 14, 2006, Betancourt 

attempted to ship 17 lower receivers from a UPS store in Phoenix, Arizona, to 

San Diego, California. The owner of the UPS store, a former federal law 

enforcement officer, thought the package looked suspicious and opened it. He 

found that it contained firearms, but still shipped the package because he did 

not know whether it was unlawful for the sender to mail the items. He 

subsequently contacted ATF’s Phoenix Office. 

After learning about this shipment, Higman contacted Shawn Hoben, the 

RAC of ATF’s San Diego Office, and asked him to use an undercover agent to 

deliver the package to the intended recipient. Higman stated in an e-mail to 

Hoben, “[W]e believe at this point there is more value in the surveillance, 

identification of locations, persons, vehicles and asset[s] rather than making 

sight arrests . . . . [W]e’ll have probable cause to arrest and indict [the 

intended recipient] at a later date as this case matures.” Hoben told us he 

refused to allow the delivery because of concerns about losing control of the 

firearms and the resulting risk to public safety. ATF San Diego instead 

intercepted the package and ordered it returned to the Phoenix UPS store. ATF 

Tucson subsequently obtained a search warrant to open the package and 

seized the firearms. A few weeks later, Horowitz called the FFL to tell him 

about the seizure, and in mid-July, contacted the FFL to ask about the prices 

of certain firearms but told him that they were waiting on things to cool down 

before making more purchases. 

An August 2006 briefing paper apparently drafted by Athanasio “Tom” 

Vlahoulis, an experienced agent in the Tucson Office, stated that the 

interception of the delivery to San Diego disrupted the investigation. It further 

stated that it was likely that the firearms previously purchased by Gonzalez, 
45 

Horowitz, and Betancourt had been illegally trafficked to Mexico. The briefing 

paper also stated that “[t]here is currently sufficient documentation to conclude 

a historical criminal case on individuals involved in the illegal purchase and 

transfer of firearms identified as of this date.” Despite this belief, ATF agents 

did not make any arrests or discuss with the U.S. Attorney’s Office the 

possibility of prosecuting any subjects. 

Indeed, ATF Tucson still seemed to be attempting to make a bigger case. 

In early October 2006, Higman, in a memorandum signed by Newell, requested 

$20,000 in funding for pen registers and a Title III wiretap. In October and 

November 2006, Horowitz and two new associates made several purchases 

from the FFL, totaling 14 firearms. According to an ATF operational plan for 

surveillance of an October 7 purchase: 

Betancourt has not been heard from and has no money in his 

bank accounts. Horowitz advised the FFL recently that he is going 

to cut out the middle man and make a lot of money for himself. It 

is suspected that Horowitz will now be moving the firearms to 

Tijuana himself. We are not prepared to make any arrests at this 

time because we are still attempting to coordinate our efforts with 

[law enforcement] in Mexico. 

In late November 2006, Vlahoulis contacted the MCO about meeting with 

Mexican law enforcement to “work out some investigative strategy to target the 

recipients, and also target the organizational entities that are orchestrating this 

operation and connect the firearms to crimes in Mexico.” Vlahoulis provided 

the MCO background information about Horowitz and Betancourt, as well as 

Mexican phone numbers listed in their cell phone records, and MCO personnel 

provided Tucson agents with information about a vehicle with a license plate 

from Sonora, Mexico, that was identified after the driver made contact with 

Betancourt in April 2006. However, the FFL did not make any additional 

firearms sales to Horowitz or Betancourt after November 2006, and we did not 

identify further coordination between ATF Tucson and Mexican law 

enforcement until April 2007, during the second part of Operation Wide 

Receiver. 

V. Operation Wide Receiver II (2007) 

A. Resumption of the Case with a New Group of Buyers and Arrest 

of Gonzalez in February 2007 

On February 5, 2007, Gonzalez, the initial straw purchaser in Operation 

Wide Receiver I, contacted the FFL and said that he had a friend interested in 

purchasing AK-47s. Although there had been little investigative activity for 

almost 2 months, the FFL was still serving as a confidential informant at this 
46 

time and he notified ATF agents about this contact and recorded his 

conversations with Gonzalez. 

On February 7, 2007, Gonzalez arrived at the FFL’s house with three 

other men and introduced one of them, Carlos Celaya, as the “buyer.” 

Gonzalez filled out the Form 4473s to purchase four AK-47 rifles, and Celaya 

handed the FFL $2,200 in cash in payment. During the purchase, Gonzalez 

and Celaya told the FFL that someone would drive from Mexico to Tucson to 

pick up the guns and take them back to Mexico, and that guns sometimes were 

placed in a hidden compartment of the vehicle for transport. Gonzalez also told 

the FFL that the lower receivers that he and Jonathan Horowitz had purchased 

in 2006 were taken to Tijuana and converted into fully automatic rifles. 

Three ATF agents monitored the February 7 purchase and observed 

Celaya and two men load the four AK-47s into a white Ford Thunderbird and 

leave, while Gonzalez remained in the house with the FFL. Agents followed the 

Thunderbird as it drove through an industrial section of Tucson but stopped 

when the driver made a U-turn. Agents later saw the car enter and exit the 

trailer park where Gonzalez lived and then arrive at Celaya’s house. Agents 

discontinued surveillance at that point. Garcia told us that even though 

Gonzalez openly made a straw purchase in front of the FFL, ATF did not make 

arrests or seize the weapons because “we needed for these guys to come . . . 

back to [the FFL] and buy the guns from him where we could record it . . . and 

monitor it and try to catch them trafficking[.]” 

On four separate occasions over the next two weeks, Gonzalez and 

Celaya bought 10 additional firearms from the FFL, primarily AK-47 and AR-15 

semi-automatic pistols and rifles. In recorded meetings with the FFL, neither 

man made any attempt to hide that the firearms were for buyers in Mexico. 

For example, on February 11, 2007, Gonzalez bought an AR-15 semi-automatic 

pistol from the FFL. Because Gonzalez had previously passed the NICS 

background check, the FFL did not call in his information until later that day. 

When he ran the background check, however, he realized that Gonzalez was 

too young to purchase a handgun from a federally licensed dealer.41

 

41 Under the Gun Control Act of 1968, handgun sales are limited to individuals 21 

years of age and older. See 18 U.S.C. § 922(b)(1); 27 C.F.R. § 478.99(b). Although some states, 

including Arizona, have lower age requirements for ownership of handguns, federally licensed 

dealers must observe the higher age requirement. See ATF Frequently Asked Questions, 

Conduct of Business – Licensees, at http://www.atf.gov/firearms/faq/licensees-conduct-ofbusiness.html#age-requirements (last visited May 15, 2012); see also ARIZ. REV. STAT. ANN.

§ 13-3109(A).

 The FFL 

called Gonzalez and explained the situation, and Gonzalez said he would 

return the next day with someone who could legally complete the sale. The 

next day, Celaya completed the paperwork for Gonzalez’s AR-15 pistol and 
47 

purchased two other firearms. Gonzalez told the FFL at this sale that all of the 

firearms they had purchased were “going South.” On February 22, 2007, 

Celaya told the FFL that he was purchasing an AK-47 semi-automatic pistol to 

leave with family in Caborca, Mexico, and that he sold firearms to make extra 

money on the side. 

After this purchase, Tucson agents decided to arrest Gonzalez and try to 

“flip” him, believing that he was likely to know “more of the cartel circle” 

because he had introduced Celaya and had made statements suggesting that 

he was “in the know” about what happened to the firearms. Agents confronted 

Gonzalez on February 27, 2007, when the Pima County Sheriff’s Office 

conducted a traffic stop of Gonzalez’s vehicle at ATF’s request, detained him, 

and took him to the ATF office for questioning. In an interview with ATF 

agents, Gonzalez identified the source of the money used to purchase lower 

receivers in 2006, told agents that Celaya’s cousin had provided the money for 

the AK-47 and AR-15 pistols and rifles purchased in February 2007, and said 

that Celaya and his cousin had found a supplier for grenade launchers that 

can be attached to AR-15 rifles.42

Garcia and another Tucson agent, Bernardo Arellano, signed up 

Gonzalez as a confidential informant with the intention of embedding him in 

the firearms trafficking operation so he could obtain information that would 

help ATF conduct more effective surveillance. However, Celaya did not call 

Gonzalez again. Garcia speculated that Celaya realized that he could pass the 

NICS background check and purchase the guns directly from the FFL without 

having to pay Gonzalez $100 per gun, and cut Gonzalez out of future deals and 

did not call him again. ATF agents then turned their efforts to trying to arrest 

and “flip” Celaya on charges that carried potentially more jail time than those 

for a straw purchaser offense, but that effort was also unsuccessful. Agents 

began efforts to conduct a reverse sting operation in which an undercover 

agent would sell an inoperative “prop” grenade launcher supplied by ATF to 

Celaya and arrest him immediately for the NFA violation, a charge that could 

result in significant jail time and thereby induce him to cooperate. However, 

Celaya did not pursue the grenade launchers, and this operation did not take 

place. ATF made no effort to arrest and “flip” Celaya on the straw purchaser 

charges alone. We found no record that Maldonado or anyone else in the U.S. 

Attorney’s Office was consulted at this time. 

 

42 Celaya later told the FFL that his cousin was José Celaya. To avoid confusion, we 

refer to José Celaya by his full name, while references to “Celaya” without a first name are to 

Carlos Celaya.
48 

B. Celaya’s Purchasing Activity Continues Unabated as Focus 

Shifts to a New Subject in April 2007 

According to ATF reports, in March 2007, Celaya and two other buyers 

purchased a total of 33 firearms from the FFL, including AK-47, AR-15, and 

.38 Super pistols.43

On April 3, 2007, Celaya called the FFL and told him that another 

individual was interested in purchasing firearms “to take back to Mexico,” and 

they made arrangements to meet at the FFL’s house that evening. According to 

the FFL’s journal, Garcia told him in a meeting that day, “We’re getting a lot of 

heat so this probably will be his [Celaya’s] last purchase. We just can’t keep 

letting these guns go to Mexico with impunity.” Garcia told the OIG that he 

would not be surprised if he made comments to the FFL in early April 2007 

about the need to minimize the number of guns going to Mexico because media 

reports around that time began criticizing the flow of firearms from the United 

States to Mexico. 

 ATF conducted no surveillance of these purchases, despite 

having advance notice of them. When asked about the lack of surveillance, 

Garcia told us that these sales should not have happened at all, and that he 

should have told the FFL earlier in the investigation not to sell firearms if 

agents could not get out on surveillance. Garcia said that during this time 

agents had short notice that the subjects were on their way to the FFL’s house 

and could not get out on surveillance every time, and that after this series of 

purchases Higman “blew a gasket” and told Garcia to instruct the FFL not to 

make sales unless agents were available to conduct surveillance. Garcia told 

us that around this time the “investigation was taking a toll on everybody” and 

that “Wide Receiver was like a bad word in the office because everybody knew it 

meant working late or whatever.” Garcia also stated that agents discussed the 

need “to start doing something different” because they could not prove the 

subjects were taking firearms to Mexico based only on the subjects’ statements. 

We found no evidence, however, that ATF agents raised this issue with the U.S. 

Attorney’s Office at that time. 

That evening, Celaya arrived at the FFL’s residence with a man later 

identified as Israel Egurrola-Leon and a woman, Siria Valencia.44

 

43 We identified in other documentation an additional five firearms, for a total of 38 

firearms, purchased in March 2007. We were unable to determine the basis for this 

discrepancy.

 EgurrolaLeon selected five firearms for Celaya to purchase. Celaya filled out the Form 

4473s and passed the background check, and Egurrola-Leon produced $5,000 

44 Egurrola-Leon was not identified until a traffic stop in November 2007. ATF reports

and other documents refer to him as Jose Ramon Rivera-Balbastro, Israel Rivera, or Israel 

Burrola. 
49 

in a heat-sealed plastic bag to pay for the firearms, giving $4,230 to the FFL. 

Egurrola-Leon then paid Celaya $500 and Valencia $100, apparently as a fee. 

ATF and TPD surveilled this purchase and observed the subjects place firearms 

in a Ford Expedition driven by Egurrola-Leon, then conducted air and ground 

surveillance of that vehicle until it parked at a house in Tucson. Surveillance 

was terminated at 9:50 p.m. at Higman’s direction. 

The focus of the investigation changed as a result of the appearance of 

Egurrola-Leon. According to the FFL, Higman told him that the plan had been 

to arrest Celaya that night, but that the appearance of Egurrola-Leon made 

Higman think that the case could turn into something more. Garcia told us 

that although they had no information about potential cartel ties at this time, 

Egurrola-Leon seemed to have “clout” and Higman decided to focus ATF’s 

efforts on him to determine his role in the trafficking conspiracy. 

C. Attempts to Coordinate with Mexican Law Enforcement 

between April and June 2007 

Over the next few days in April 2007, Celaya called the FFL several times 

and told him that Egurrola-Leon wanted to buy 20 .38 Super handguns and 20 

AR-15 rifles. The FFL and Celaya scheduled this purchase for the following 

week, and Tucson agents began efforts to coordinate surveillance of the 

purchase with Mexican law enforcement through the ATF Mexico City Office 

(MCO). 

At that time, the MCO was staffed by four people: the country Attaché, 

Eugene Marquez; Assistant Attaché Ramon Bazan; and two Mexican nationals 

employed by ATF to support the office, and 

Because the office was small and had responsibility for Mexico, Central 

America, and the Caribbean, Marquez and Bazan divided the duties between 

themselves. Marquez managed the budget, handled meetings with the U.S. 

Embassy and ATF’s Mexican law enforcement counterparts, and facilitated the 

training of Mexican officials in firearms identification and tracing and K-9 

explosives detection. Bazan was responsible for operational issues, such as 

coordinating with ATF field offices on traces and investigative leads. 

 provided administrative support for the office. , although 

nominally designated as an “investigative assistant,” had no law enforcement 

training and only minimal English language capability. He was hired by ATF to 

assist with driving MCO staff, help with firearms traces and paperwork, and act 

as a liaison with the Mexican government. 

On April 6, 2007, Tucson agent Vlahoulis contacted Bazan to coordinate 

the “delivery of 20 assault rifles” to Mexico. Vlahoulis recounted his 

conversation with Bazan in an e-mail to Higman, stating, 
50 

Ramon [Bazan] advised that [the proposed cross-border delivery of 

assault rifles] would not be a problem and that it had been done 

one other time very successfully. I advised him that we did not 

want a photo op seizure at the border but that we wanted the 

shipment taken all the way to its destination and exploited on all 

levels (personnel, telephone and financial) for intelligence and 

reportable criminal activity. I specifically advised that this matter 

is only the tip of what we would like to do in the future 

 

 Ramon advised that he was onboard and would be in 

touch in a couple of hours. 

On April 10, 2007, Vlahoulis stated in an e-mail to Higman and Garcia that 

Bazan “responded via phone this A.M. and . . . stated that the MCO would 

coordinate the involvement of Mexican Federal law enforcement and security 

agencies investigating in Mexico the recipients of the firearms purchased in 

Tucson.” 

Bazan, however, was out of the office that week and instructed , 

the Mexican national employee at the MCO described above, to arrange 

coordination with Mexican law enforcement. That same day, sent an 

e-mail to Tucson agents stating that he had contacted , an 

attorney in the Mexican Attorney General’s Office (PGR), and that had 

requested information to help identify the traffickers. The next day, 

told Tucson agents that had arranged for Agencia Federal de 

Investigación (AFI) agents to be “on standby 24 hours along the Mexican border 

from Tijuana to Agua Prieta, Sonora.”45

Despite this e-mail, it is unclear whether made contact with 

 at all. Contemporaneous notes maintained by Bazan stated that on or 

around April 10, 2007, he asked to coordinate the operation with 

 office, but when Bazan called the next day, had not 

“done ANYTHING . . . . He just makes things up and then uses that (what he 

made up as a problem) to not do his job.” It is also unclear whether the 

proposed operation was feasible. Bazan told us that he had spoken to 

and two Mexican Customs officials at some point and was told that 

 

45 The Mexican Attorney General’s Office, known as the Procuraduria General de La 

Republica (PGR), is responsible for federal criminal prosecutions in Mexico. The PGR has five 

specialized units, including the Specialized Unit for the Investigation of Organized Crime

(SIEDO), which handles trafficking and organized crime investigations and prosecutions. 

was the head of a unit within SIEDO, 

 . AFI was an investigative agency within PGR 

with investigative functions similar to the FBI, the DEA, and the U.S. Marshals Service, but it 

was replaced by the Policía Federal Ministerial (PFM) in mid-2009.
51 

maintaining surveillance for long periods through areas of Mexico with cartel 

activity was impossible. 

Higman informed his supervisors in the ATF Phoenix Field Division about 

Tucson’s efforts to coordinate operations with Mexican officials. He briefed 

Acting ASAC Matthew Horace on April 6, 2007, and he sent a proposed 

operational plan to a different Acting ASAC, Adam Price, for approval on April 

10, 2007. The operational plan for the April 11 purchase specified that ATF 

agents would conduct surveillance of suspects to the border, “where Mexican 

enforcement authorities will follow the firearms to their final destination in 

Mexico . . . . Once the firearms cross into Mexico, the Mexican authorities, 

along with ATF attaché to Mexico, Ramon Bazan, will take [on scene command] 

of the surveillance and attempt to identify further parties involved, addresses, 

telephone numbers, and the FTO’s modes of operation.” In an e-mail sent to 

Price the day of the planned operation, Higman emphasized, “[D]ue to the 

sensitivity and potential international aspect of the planned op for today . . . . I 

will not proceed on this Op without the expressed acknowledgment and 

concurrence of your office.” 

Price told us that he approved the operational plan after discussing it 

with Newell. He said that although ASACs had the authority to approve 

operational plans, he was a short-term Acting ASAC at the time and would not 

have approved this operation without involving the SAC. He said he recalled 

discussing it with Newell, who he said “knew every element and . . . everything 

about this op[eration].” Newell told us that he did not recall being involved in 

or briefed about this particular operation, but said that he had discussions 

with Higman in late 2006 about the possibility of working with Mexico to 

develop information about the ultimate recipients of the guns purchased by the 

Operation Wide Receiver I subjects in 2006. Newell also told the OIG that 

Bazan had told him (Newell) at some point that he (Bazan) and Marquez had 

spoken to personnel from the U.S. Embassy in Mexico City about coordinating 

with Mexican authorities in Operation Wide Receiver. Marquez, however, told 

us that he did not have discussions about Operation Wide Receiver with the 

U.S. Ambassador or Embassy staff.

On April 11, 2007, Celaya, Egurrola-Leon, and an unidentified man 

arrived at the FFL’s house to purchase the 20 .38 Super pistols that the FFL 

had ordered for Egurrola-Leon. Egurrola-Leon paid for 10 of the .38 Super 

pistols with cash he had brought in a “wet wipes” box but discovered that he 

needed more money to complete the transaction. During the transaction, 

which was recorded and transcribed, the FFL stated: 

I have been doing this a long time . . . . And so far I’m not in 

prison. So, I’m doing something right. But the best way for us to 

stay out of trouble is for these guns to go as quick as possible to 

Mexico . . . . Once they are in Mexico, it’s no longer a problem for 
52 

me. It’s only if they get, you know if they stay here a week or two 

weeks or something and then somebody finds them. Then it comes 

back to me because of the serial numbers on the gun. 

Celaya, translating for Egurrola-Leon, then told the FFL that the guns would 

leave the next day and would be transported in trucks that had secret 

compartments. 

Egurrola-Leon left with the ten pistols he had paid for, placed the 

firearms in his minivan and drove away. Agents observed him meet with a 

man driving a Honda Ridgeline, and then return to the FFL’s residence with a 

heat-sealed plastic bag of cash marked “$15,000.” Egurrola-Leon also selected 

six other firearms to purchase, telling the FFL that two of them were for his 

personal use. Celaya filled out the Form 4473s for all of the firearms, and 

Egurrola-Leon paid for them. Celaya also bought two firearms for his personal 

use. Egurrola-Leon loaded his firearms into a gray minivan that Tucson agents 

and TPD officers followed but later lost in a subdivision. They continued 

surveillance in the subdivision but were unable to locate the minivan and 

discontinued surveillance at noon the next day. Despite the unsuccessful 

surveillance, Tucson agents provided information about the vehicles associated 

with Egurrola-Leon to Bazan, who told us he gave it to . 

In late April 2007, Egurrola-Leon ordered and made a down payment on 

30 more .38 Supers. On May 2, 2007, Celaya told the FFL that Egurrola-Leon 

had contacted him and said he also wanted to purchase 20 more AK-47s. 

Celaya arranged for Egurrola-Leon to meet him at the FFL’s house on May 7, 

2007, to pick up at least 35 firearms. However, according to an ATF report of 

investigation, the purchase by Celaya for Egurrola-Leon did not occur because 

Egurrola-Leon was “participat[ing] in a narcotics transaction at his residence 

with some individuals from Mexico” and could not make it to the FFL’s house. 

Celaya purchased nine firearms for his cousin in Caborca, Mexico. Garcia told 

us that ATF agents monitored the anticipated purchase for Egurrola-Leon but 

did not follow Celaya because “we knew all we could know from Carlos . . . . 

And we . . . had already pretty much worn out our welcome in [his] 

neighborhood.” The FFL recorded Celaya’s statements and provided them to 

Garcia the next day. On May 9 and 10, 2007, Celaya told the FFL that he was 

purchasing firearms for a cousin who was associated with narcotics trafficking 

in Caborca, Mexico, and who worked closely with the Paez-Soto organization, 

and indicated that Egurrola-Leon also was connected to the Paez-Soto 

organization.46

 

46 The Paez-Soto organization was the target of Operation Iron River, the OCDETF case 

that AUSA Petermann was handling. Witnesses described the organization as a “crime family” 

led by Ignacio “Nacho” Paez-Soto that was associated with the Sinaloa Cartel and allegedly was 

(Cont’d.)
53 

Tucson agents made additional efforts in April and May 2007 to develop 

a relationship with Mexican law enforcement through the MCO. Garcia and 

Vlahoulis made plans to travel to Mexico to meet with Mexican counterparts 

and held a conference call with of the PGR on May 11, 2007. The 

OIG did not identify any documents memorializing the substance of this call, 

and Garcia told us that he did not recall who was or what was 

discussed. After this call, Vlahoulis provided information about the firearms 

purchased by Celaya and Egurrola-Leon to Bazan and to forward to 

, stating, “[W]e hope that we can reschedule [a trip to Hermosillo to meet 

with ] in the next couple of weeks and that the PGR will by that time 

have information on some of these players.” 

Higman described the outlines of a cooperative arrangement between 

ATF and Mexican law enforcement regarding firearms trafficking to Mexico in a 

memorandum that requested additional funding for Operation Wide Receiver. 

SAC Newell signed the memorandum and sent it to ATF Headquarters on May 

21, 2007. The funding request stated: 

The Tucson II Field Office and Mexico Country Office have a 

cooperative agreement with Mexican Federal law enforcement 

authorities to allow the firearms to be transported from the United 

States into Mexico in anticipation that more prominent individuals 

will be identified as co-conspirators. 

The Tucson II Field Office, TPD [Special Investigation Division 

(SID)], and the Mexican authorities are providing all available 

resources for “around the clock” surveillance in an attempt to track 

the firearms from Tucson, Arizona, to the International border, 

where surveillance will then be turned over to the ATF Mexico 

Country [O]ffice and Mexican Federal law enforcement authorities 

and tracked to further Mexico locations. 

To date, the Tucson II Field Office and TPD SID have been unable 

to surveil the firearms to the International border. From contact 

with those offices, the Mexican Federal law enforcement authorities 

understand that surveillance is difficult, and that several firearms 

will likely make it to Mexico prior to a U.S. law enforcement 

successful surveillance of the firearms to the international border. 

Newell told the OIG that he had discussions with Carson Carroll, the ATF 

Deputy Assistant Director (West), about coordination with Mexico during 

Operation Wide Receiver and sent information up the chain to ATF 

 

involved in importing marijuana through the southern Arizona corridor and illegally obtaining 

and exporting firearms to Mexico. According to press reports, Ignacio Paez-Soto was arrested 

by the Mexican Federal Police in September 2009.
54 

Headquarters through him. When presented with a copy of the memorandum 

during his interview with the OIG, Carroll acknowledged that he had approved 

this request for funding. However, Carroll said that reviewing the Operation 

Wide Receiver memorandum was “like reading hundreds of this exact same 

thing” and that it “blends with the numerous others I’ve read of guys going to 

FFLs, paying money, and picking up weapons.” He also told us that he did not 

recall any discussions with Newell about the case or about any agreement with 

Mexican law enforcement to allow weapons to go into Mexico.47

Bazan told the OIG that the statements in the memorandum about 

“around the clock surveillance” seemed to be “stretching,” but that the 

references to a “cooperative agreement” with Mexican law enforcement and the 

understanding that guns likely would cross the border before a successful 

surveillance was conducted were accurate. Bazan said that he had 

conversations with long before Operation Wide Receiver about the 

possibility of weapons being lost during surveillance and crossing the border, 

and that this risk had to be considered in the context of the large number of 

firearms illegally smuggled into Mexico every year and the difficulty in proving 

export violations. Newell told us that the reference in the memorandum to a 

“cooperative agreement” was based on Garcia’s efforts to coordinate 

surveillance with Mexico through the MCO, not to any sort of formal agreement 

between ATF and Mexican law enforcement. 

In late May 2007, ATF made another attempt to conduct a coordinated 

surveillance operation with Mexican law enforcement. As with the earlier 

attempt in April 2007, ATF planned to follow the suspects to the anticipated 

border crossing, where Mexican authorities would take over surveillance and 

follow the firearms to their final destination in Mexico. On May 22, Celaya 

purchased the 30 .38 Supers previously ordered by Egurrola-Leon, plus 18 

additional firearms that Celaya told the FFL were for another man, Rodrigo 

Rodriguez-Contreras, to transport to Caborca, Mexico.48

 

47 Carroll told us that agreements with officials outside the United States would have 

needed to be “pushed up the chain” to ATF’s International Affairs Office, as well as to the 

Assistant Directors of Enforcement Programs and Services and Field Operations. We found no 

evidence that this occurred. 

 Celaya filled out the 

Form 4473s for all 48 firearms. The next day, Celaya and Rodriguez-Contreras 

purchased another seven firearms from the FFL. Celaya completed the Form 

48 On June 3, 2007, Rodriguez-Contreras was arrested on an alien-in-possession 

charge. TPD officers responded to a domestic dispute involving Rodriguez-Contreras, and he 

told them that he was in the country illegally and kept a gun under the driver’s seat of his car 

for protection. TPD officers searched his car and found a .38 Super pistol that had been 

purchased from the FFL by Ricardo Mendez on March 20, 2007. On January 22, 2008, 

Rodriguez-Contreras was sentenced to 12 months and 1 day in prison and 36 months of 

supervised release.
55 

4473s and Contreras provided the cash payment to the FFL. From May 22 to 

25, ATF conducted continuous surveillance of Celaya, Valencia, and EgurrolaLeon, including air surveillance by TPD, but ultimately lost the vehicle that 

agents believed was transporting the firearms. ATF nevertheless contacted 

Mexican law enforcement and provided information about the vehicle. 

In the weeks after this failed surveillance, ATF continued efforts to 

identify targets in Mexico by sending Mexican phone numbers called by Celaya 

to Bazan and to Dennis Fasciani, an Intelligence Research Specialist assigned 

to ATF Headquarters. In an e-mail to Fasciani, Garcia emphasized the need to 

develop information on potential Mexican targets: “I[f] we do not get some 

substantial info in the near term, we may be forced to arrest the individuals in 

the U.S alone and shut down the case due to letting too many guns walk....any 

info will be helpful as we will provide the Mexicans that we are working with 

the general info and let them run with it.” 

E-mail communications we reviewed from June 2007 indicated that 

agents in Tucson began to question whether the MCO was passing information 

to Mexican law enforcement, and, even if it was, whether Mexican law 

enforcement officials were doing anything with the information. For example, 

 forwarded information to contacts in the PGR about Mexican phone 

numbers and vehicles used by ATF subjects, but there is no evidence that ATF 

received any information from PGR in response. Garcia told us that he 

received more information about potential Mexican targets from a DEA 

intelligence analyst in Mexico, who identified Celaya’s uncle in Caborca, 

Mexico, and provided information on his vehicles, than he did from Mexican 

law enforcement officials. 

D. Move Toward the Use of Electronic Surveillance in June 2007 

After the failed surveillance in late May 2007, ATF agents in Tucson 

considered other ways to track firearms to Mexico. One proposal was 

to procure a tracking device small enough to conceal in a handgun. According 

to the FFL, Garcia called him on May 31 and said, “I just had a meeting with 

Chuck [Higman]. These guns are getting out of hand and we’re going to have to 

do something about it. We’re not having luck with our surveillance so we’re 

trying to figure out an alternative. It looks like we’ll have some sort of tracking 

device from Raytheon but it won’t be ready until next week so we’ll have to do 

[the next sale to Celaya] the following week . . . .”49

 

49 Contemporaneous e-mails reflect efforts by Tucson agents in late May and early 

June 2007 to obtain a tracking device that could be concealed in the firearms without detection 

or need for recovery, including a device manufactured by Raytheon.

 However, ATF was unable 

to obtain a tracking device and this proposal was not pursued further. 
56 

After ATF Tucson’s request for additional operational funds was approved 

in May 2007, ATF began to pursue court-authorized electronic surveillance. As 

part of this effort, in June 2007 agents obtained from the federal court the first 

of 10 orders authorizing the collection of calling data for the cell phones used 

by Celaya, Egurrola-Leon, and their associates. ATF planned to use the calling 

data to help establish the need to conduct electronic surveillance of the 

subjects’ telephone conversations. Also in June 2007, ATF began to obtain 

court authorization for the release of cell site data and real-time GPS mobile 

tracking information for various cell phones used by Celaya, Egurrola-Leon, 

and their associates. 

After speaking to AUSA Petermann about initiating an application for 

electronic surveillance, Higman wrote an e-mail on June 26, 2007, to the ATF 

Southwest Region OCDETF Coordinator that stated, “We have reached that 

stage where I am no longer comfortable allowing additional firearms to ‘walk,’ 

without a more defined purpose. ... [W]e have reviewed the available Pen data 

and that material merely confirms already developed info without any 

substantial additional leads. . . . [T]he sooner we get to the Title III intercepts, 

the better.” Two days after this e-mail, Higman stated in a recorded 

conversation with the FFL: 

[W]e have probably ten people identified, including money people 

that haven’t even met you yet that are indictable right now. 

None of those people are going to go to trial. They’re all gonna 

plead . . . . [I]t’s inescapable with the amount of evidence we have 

on them doing the straw purchases and trafficking firearms into 

Mexico.50

Around this same time, Higman began to explore the possibility of 

“migrating” Operation Wide Receiver into Operation Iron River, an OCDETF 

drug case targeting the Paez-Soto organization, based on evidence that the 

subjects in Operation Wide Receiver were “directly connected” to the OCDETF 

case. Contemporaneous e-mails indicate that Higman hoped to use OCDETF 

funds to pay for electronic surveillance of Celaya. Higman learned, however, 

that ATF could not use OCDETF funds once it had received major case 

funding. As a result, Operation Wide Receiver remained separate from 

Operation Iron River. 

 

50 After reviewing a draft of the report, Garcia provided comments to the OIG stating

that Higman made this comment to the FFL to “put the FFLs mind at ease,” as the FFL was 

“getting cold feet” and was concerned about testifying if the case went to trial.
57 

E. Seizure of 32 Firearms and Recovery of Firearms in Mexico in 

July 2007 

While ATF was making plans to conduct court-authorized electronic 

surveillance, Operation Wide Receiver subjects continued to purchase firearms. 

On June 26, 2007, Celaya introduced two new buyers to the FFL, Rigoberto 

Estrella-Sesma and , during a visit to purchase more 

firearms. filled out the Form 4473s for 16 firearms, and Estrella-Sesma 

paid for them. Celaya told the FFL that Estrella-Sesma planned to “traffic” the 

firearms to Mexico. During this visit, which the FFL recorded, Celaya also 

purchased six AK-47s that he said he planned to sell in Caborca, Mexico. 

After completing the transaction, and Estrella-Sesma loaded the 

firearms that had bought into a blue minivan, and Celaya loaded his six 

firearms into his pickup truck. ATF agents followed Celaya’s vehicle to his 

house and discontinued surveillance at 9:00 p.m. The next day, Celaya 

contacted the FFL and told him that Estrella-Sesma had $50,000 and wanted 

to buy more guns. The FFL and Celaya planned to meet on June 28, but the 

purchase was delayed when Celaya told the FFL that Estrella-Sesma had 

received a call from his “boss” and was told the money was to be used for 

something else. 

ATF agents learned that Estrella-Sesma was a convicted felon and an 

illegal alien, and was therefore prohibited by law from possessing a firearm. 

ATF decided to conduct a traffic stop after his next purchase. On July 12, 

2007, Estrella-Sesma purchased 32 firearms from the FFL and paid with a 

plastic bag containing more than $30,000 cash. completed the Form 

4473. Estrella-Sesma placed the firearms in three large duffle bags, which he 

then loaded into the minivan in which he arrived with . At ATF’s 

direction, TPD officers stopped the vehicle after it left the FFL’s residence. 

Estrella-Sesma, who was driving, fled from the officers and was not 

apprehended, 

 ATF seized the 32 firearms. 

Three days later, on July 15, 2007, Mexican authorities recovered an 

AK-47 pistol and an AK-47 rifle purchased by Celaya on March 30 and June 

26, 2007, respectively, during a raid in Caborca, Mexico. Tucson agents 

learned of this recovery on July 24, 2007. According to Garcia, despite 

numerous statements by subjects previously acknowledging that the firearms 

purchased were being transported to Mexico, this recovery gave ATF its first 

confirmation that the guns were actually being transported to Mexico. He also 

said that the seizure of Estrella-Sesma’s guns on July 12 “bought some time” 

for ATF by giving the FFL an excuse to “lay low” and stop selling guns to the 

subjects until the electronic surveillance was in place. In late July and early 

August 2007, at Garcia’s instruction, the FFL deferred Celaya’s requests to 

purchase firearms and told him to wait until it was safe to purchase more 
58 

firearms. The FFL did not make another sale to an Operation Wide Receiver 

subject until nearly two months later. 

F. Approval of the First Title III Application in August 2007 

Federal law authorizes the government to conduct electronic surveillance 

of oral communications for law enforcement purposes. See 18 U.S.C. §§ 2510-

2522. To obtain approval, the government must submit an application to a 

federal court showing that there is probable cause to believe “that an individual 

is committing, has committed, or is about to commit” a specified criminal 

violation and that there is probable cause to believe that a particular 

communication “facility,” such as a cellular telephone, is being used by 

subjects in furtherance of the specified criminal violations. See 18 U.S.C. § 

2518(3). The application also must demonstrate that “normal investigative 

procedures have been tried and failed or reasonably appear to be unlikely to 

succeed if tried or be too dangerous.” 18 U.S.C. § 2518(3)(c). Orders for 

electronic surveillance are issued for a period not to exceed 30 days, but can be 

extended with court permission, and surveillance must terminate when the 

authorized objectives are attained. 18 U.S.C. § 2518(1)(d)(5). 

Wiretap applications are supported by an affidavit from an agent or other 

“investigative or law enforcement officer” that sets forth the facts that establish 

the probable cause and other criteria required by the statute. See 18 U.S.C. § 

2518(1). The affidavit is typically drafted by the agent and reviewed by the 

prosecutor assigned to the case. The prosecutor also is responsible for drafting 

the application that sets forth the basis for the court’s jurisdiction to authorize 

the electronic surveillance.51

In late June 2007, Garcia began drafting an affidavit in support of an 

application to conduct electronic surveillance of two cell phones used by 

Celaya. The draft affidavit was submitted to the U.S. Attorney’s Office on June 

29, 2007.52

 

51 ATF’s Title III applications must go through two separate channels for approval 

before submission to a district court judge in the relevant jurisdiction to obtain an order 

authorizing interception. The U.S. Attorney’s Office sends the affidavit to Office of Enforcement 

Operations (OEO) for review and approval by the Assistant Attorney General or a DAAG in the 

Criminal Division, and the SAC of the ATF field division conducting the investigation sends a 

Title III intercept request memo to ATF Headquarters for review by the Office of Chief Counsel 

and the Office of Field Operations. The Title III application and approval process are discussed 

in detail in Chapters Four and Five. 

 Garcia told the OIG that shortly after he completed his first draft 

52 As of March 2007, ATF Tucson had received only $5,000 in dedicated funding for

Operation Wide Receiver, which was inadequate to conduct electronic surveillance. Although 

the Tucson office received an additional $26,500 in funding in late May 2007, most of this 

money was used to obtain calling data. Because the Tucson Office had never before conducted 

electronic surveillance, agents had to obtain equipment for and staff a designated room for the 

(Cont’d.)
59 

of the affidavit, Petermann left the Tucson U.S Attorney’s Office, and 

responsibility for the Title III application was assigned to AUSA Tom Ferraro. 

Garcia said that he revised the affidavit “10 to 15 times” and discussed it 

frequently with Ferraro, and that “nobody knew what to do [with the affidavit] 

because it was guns . . . . They only knew how to do wires for dope.” Of note, 

Garcia apparently discussed the application for electronic surveillance with the 

FFL, telling him about Ferraro’s numerous revisions to the affidavit and later 

having him help generate “dirty calls” between the subjects.53

Contemporaneous e-mails show that Ferraro was closely involved in 

revising the initial affidavit, and he signed the final affidavit that was submitted 

to the court. Ferraro, however, told us that he did not recall being involved in 

the case at that time and was not sure he was ever assigned to Operation Wide 

Receiver. Although Ferraro acknowledged that he worked on the electronic 

surveillance applications, which were filed under the name of Operation Wide 

Receiver, he told us that in his view he was working on Operation Iron River, 

the OCDETF drug case previously handled by Petermann. 

After reviewing a draft of the report, Ferraro submitted comments to the 

OIG reiterating that he was assigned only to Operation Iron River, which he 

described as a case distinct from Operation Wide Receiver and that employed 

different tactics, during the time period in which ATF conducted electronic 

surveillance. He indicated that he undertook to work on the wiretap affidavit in 

light of the connection between certain targets of the two Operations. As noted 

earlier, however, Operations Wide Receiver and Iron River remained separate 

within ATF because funding restrictions prevented combining them. The U.S. 

Attorney’s Office also maintained separate case files for Operations Wide 

Receiver and Iron River, both of which we reviewed. The case file for Operation 

Wide Receiver included all five of the applications for electronic surveillance 

handled by Ferraro, and contemporaneous e-mails and documents indicating 

that Ferraro knew ATF Tucson conducted the investigative activity set forth in 

this report under the Wide Receiver case name and believed at the time that 

the decision to keep the cases separate was an “administrative fiction” and a 

“funding mechanism to pay for the wiretap.” 

 

activity at an estimated cost of $121,000. Higman explored various ways to fund electronic 

surveillance, eventually paying for it with the Tucson office’s monthly “agent cashier” budget 

and at times delaying the payment of other expenses.

53 For example, shortly before ATF Tucson began conducting electronic surveillance, 

Garcia received a copy of a recorded conversation between the FFL and Celaya and sent an 

e-mail to the FFL that stated, “[W]e went over not discussing this stuff [with Celaya] until the 

wire went up...now he is planning on a purchase Tuesday or Wednesday and he has already 

began making the calls that I did not want him to make until I could record them... I know it’s 

hard to put him off but don’t go into detail setting up a time for a purchase or the guns that 

you have...that should have been the conversation on Tuesday.” 
60 

We have been unable to establish whether any supervisor in the Tucson 

U.S. Attorney’s Office reviewed or approved the applications for electronic 

surveillance. Ferraro’s supervisor in the OCDETF Unit in 2007, former 

Supervisory AUSA Bradley Giles, told us that generally he did not review 

wiretap affidavits because the attorneys in the OCDETF Unit, including 

Ferraro, were experienced and well-qualified to handle Title III applications, 

and he did not want to “bog down” the process with his review because phones 

were dropped rapidly in most of their investigations. Office of Enforcement 

Operations (OEO) policy also did not require supervisory approval of affidavits 

at the time. After reviewing the Operation Wide Receiver case file and wiretap 

affidavits in preparation for his OIG interview, Giles told us he recalled hearing 

the case name, as well as having discussed what Ferraro had termed an 

“administrative fiction” regarding ATF’s use of separate funding for Operations 

Wide Receiver and Iron River, but not the facts of the case or the content of the 

affidavits. We have no evidence suggesting otherwise. We found no documents 

or e-mails reflecting supervisory review or approval of any of the affidavits and 

are unable to reach a conclusion about whether it in fact occurred. 

After the 75-page draft affidavit was completed, the application package 

was submitted for review to the ATF Phoenix Field Division and to OEO on 

August 10, 2007. On August 21, 2007, a lawyer from OEO reviewed the 

affidavit and recommended reorganization of and edits to certain sections of it, 

but stated, “The necessity section looks fine.”54

The affidavit disclosed that the 

 

 

 

 

 

For example, one paragraph stated that 

 

 OEO approved a revised 

affidavit on August 23, 2007. 

 

54 The requirement that other investigative procedures have been tried and failed, or 

reasonably appear to be unlikely to succeed or to be too dangerous, is referred to as the 

“necessity” requirement. This requirement ensures that law enforcement agencies use 

traditional investigative techniques before pursuing court-authorized electronic surveillance 

but does not require that they exhaust every conceivable technique. Compare U.S. v. Gonzalez, 

412 F.3d 1102, 1112-13 (9th Cir. 2005) (necessity not established where DEA used pen 

registers and trap and trace devices for five days and conducted limited physical surveillance), 

with U.S. v. Garcia-Villalba, 585 F.3d 1223, 1228 (9th Cir. 2009) (necessity established where 

DEA used pen registers and trap and trace devices for 60 days and analyzed two months’ worth 

of toll records). It is particularly relevant here because the necessity section of the initial Wide 

Receiver affidavit described repeated physical surveillance by ATF agents of the same subjects 

purchasing large quantities of firearms.
61 

 

Other paragraphs stated that 

 

 

 To establish 

the necessity of the electronic surveillance, the affidavit detailed 

 

 The affidavit 

also stated, 

 

 

 

 

 

 

 

 

 

On August 23, 2007, Newell submitted to Carroll a memorandum 

seeking authorization to submit an application for electronic surveillance for 

review by the Office of Chief Counsel and approval by a Deputy Assistant 

Director, attaching the affidavit in support of the application for electronic 

surveillance. The memorandum described Operation Wide Receiver as an 

investigation in which the subjects had “unlawfully purchased, transferred or 

coordinated the purchase of approximately 300 lower receivers, rifles, and 

pistols,” identified the FFL as a confidential informant, and stated that Celaya 

told the FFL that he received money from and purchased firearms for 

individuals in Caborca, Mexico. Newell told us that he read the memorandum 

but not the accompanying affidavit. Carroll told us he had no recollection of 

Operation Wide Receiver generally or any discussions with Newell about the 

details of the investigation. An attorney in the Office of Chief Counsel reviewed 

the materials, provided editing suggestions for the affidavit, and sent it for 

approval that afternoon. The request was approved the same day. 

On August 24, 2007, Barry Sabin, then a DAAG in the Criminal Division, 

authorized the application, and an approval memorandum was faxed to 

Ferraro. Shortly thereafter, Ferraro filed the application and a federal district 

court judge signed the order authorizing interception that afternoon. ATF 

began intercepting pertinent calls the next day. This was the first of five orders 

the government obtained in Operation Wide Receiver to conduct electronic 

surveillance. 
62 

G. Straw Purchases During Electronic Surveillance 

Two purchases were made by Operation Wide Receiver subjects during 

the time ATF conducted the court-authorized surveillance. On September 12, 

2007, Celaya arranged to purchase more firearms from the FFL. Agents again 

planned to follow the firearms to the border and hand off surveillance to the 

Mexican authorities, who would follow the firearms to their final destination in 

Mexico. The operational plan for this surveillance was provided to the Phoenix 

Field Division. 

On the evening of September 12, Celaya and Siria Valencia arrived at the 

FFL’s house in Celaya’s pickup truck and purchased a total of 21 firearms: 10 

for José Celaya and11 for Egurrola-Leon. Although Valencia told the FFL that 

the firearms would go to Mexico the following day, subsequent investigative 

activity indicated that 

 

Higman, Ferraro, and Garcia met before the September 14 surveillance to 

discuss the direction of the investigation. Contemporaneous e-mails indicate 

that Higman and Ferraro decided over Garcia’s objections to “extend[] this wire 

and go[] up on two other phones” to try to “roll the investigation into people 

[who] are primarily dopers” rather than to arrest Celaya. An entry from the 

FFL’s journal the next day quotes Garcia as stating, “To be honest, I don’t agree 

with it, but we’re going to try to tie Israel and Siria into this deal . . . . I just 

want to arrest Carlos. We’ve got way more than we need to convict him, and 

I’m not sure what else we need.” Asked about the FFL’s recollection of this, 

Garcia told the OIG that he wanted to arrest Celaya after the first 30 days of 

electronic surveillance ended, but that Higman and Ferraro decided to extend 

the investigation to get more information on Valencia and Egurrola-Leon. 

Ferraro told the OIG that, as an OCDETF lawyer, his orientation was to 

get to the drugs, and that if he was going to stay on Operation Wide Receiver he 

was going to use electronic surveillance to investigate a drug case. He said 

that targeting firearms to get to drug trafficking organizations was a technique 

based on the theory that drug traffickers build “layers of insulation” between 

themselves and their drugs but eliminate those layers when dealing with 

money or firearms. According to this theory, targeting illegal firearms 

purchases would allow law enforcement to penetrate an organization at a 

higher level than could be achieved by targeting low-level drug trafficking, even 

though the penalties for firearms violations are less onerous than those for 

drug violations. In his submission following his review of the draft report, 

Ferraro acknowledged that there was sufficient evidence to arrest the 

defendants on gun charges before initiating the wiretap and that the reason for 

the wiretaps was “to identify others involved in the criminal activity who 

otherwise would not be identified.” He further noted that that his strategy 

“included acquiring sufficient evidence to tie the gun traffickers’ conduct into 
63 

the drug conspiracy in order for them to face stiffer sentences,” and that 

Higman agreed with him. 

On September 14, 2007, ATF agents observed a pickup truck driven by 

Lacarra-Badilla parked in Celaya’s garage for approximately 4 hours. Agents 

believed that 

 Agents, however, could not maintain 

surveillance of Celaya’s garage because the location made it difficult to avoid 

detection and instead did periodic drive-by surveillance in an attempt to 

observe activity in the garage, the door to which was open. Agents did not see 

Celaya and Lacarra-Badilla load firearms into the pickup truck. 

Agents initially followed Lacarra-Badilla when he left Celaya’s house, but 

discontinued surveillance when Lacarra-Badilla began driving south toward 

Nogales, Arizona. Other surveillance units remained at Celaya’s house and 

watched him pack his car and leave with his wife and child. The investigation 

indicated that , but ATF did 

not maintain surveillance of the vehicle. 

According to an affidavit Garcia drafted 3 days later to extend the 

wiretap, 

 

 

 

 

 

 55

We have been unable to establish whether ATF knowingly allowed 

Lacarra-Badilla to take firearms into Mexico. Ferraro told us that ATF 

“followed [the load of guns] to . . . Green Valley . . . and then they let it go,” but 

he said that Garcia told him that ATF was “working with Mex Feds and that 

there would be a follow-up investigation in Mexico.” Garcia initially told the 

 

55 Shortly after the surveillance, Ferraro and Garcia drafted and submitted an affidavit 

to OEO seeking a wiretap extension. OEO approved the affidavit on September 25, 2007, and 

John C. Keeney, a former DAAG in the Criminal Division authorized the application the same 

day. Shortly thereafter, Ferraro filed the application with the district court, and a federal 

district court judge signed the order authorizing the extension. After this extension, there were 

three additional applications for electronic surveillance: a spinoff (i.e., an application targeting 

a phone identified through electronic surveillance directed at another phone) authorized by 

DAAG Sigal Mandelker on October 11, 2007; an extension of this spinoff authorized by Keeney 

on November 8, 2007; and a second spinoff authorized by Sabin on November 19, 2007.
64 

OIG that he did not recall the September 14 surveillance of Lacarra-Badilla 

but, after reviewing the affidavit and summaries of intercepted calls, disputed 

Ferraro’s characterization of this surveillance and stated that he thought they 

had stopped following Lacarra-Badilla because they could not confirm that he 

had the firearms in his truck. This, however, does not explain the failure to 

continue surveillance to the border either to gain intelligence about where 

Lacarra-Badilla crossed the border or to hand over surveillance to Mexican 

authorities. Garcia told us he did not recall whether ATF was working with 

Mexico at this time, and we found no evidence that ATF alerted border officials 

or Mexican authorities about the vehicles driven by Celaya and Lacarra-Badilla 

on September 14, 2007.

 

 Celaya called the FFL several times in late September and 

early October 2007 and, at ATF’s direction, the FFL told Celaya to contact him 

when he was in possession of the money. ATF received information indicating 

that 

 

 

 

 

On October 4, 2007, Celaya purchased 36 firearms from the FFL for 

$35,300 in cash. During the transaction, which the FFL recorded, Celaya told 

the FFL that some of the firearms would be transported to Mexico that night 

and the remainder the next day. ATF agents and TPD officers observed the 

purchase but then discontinued surveillance after Celaya made contact with 

Lacarra-Badilla. 

Agents reinitiated surveillance of Lacarra-Badilla the next day and 

followed his vehicle to the Nogales, Arizona, POE. At ATF’s request, agents 

with Customs and Border Protection (CBP) stopped Lacarra-Badilla’s vehicle, 

conducted a secondary inspection, and found15 firearms hidden in the frame 

of the vehicle and underneath the rear seat cushion. The CBP agents, instead 

of ATF, seized and forfeited the firearms in order to avoid disclosing the ATF 

investigation. In addition, CBP arrested Lacarra-Badilla and charged him with 

alien-in-possession violations.56

 

56 Under 18 U.S.C. § 922(g), certain categories of persons, including aliens admitted on 

non-resident visas, are prohibited from shipping, possessing, or receiving any firearms that 

have been transported in interstate commerce. The U.S. Attorney’s Office elected not to charge 

Lacarra-Badilla with a more serious offense to avoid disclosing information in discovery that 

could compromise the ATF investigation.

 Several months later, Higman told his 

supervisor in Phoenix that ATF requested that CBP seize the guns because, “At 

this point in the case we were confident that we could not coordinate [with] the 
65 

Mexican authorities, and didn’t want any more guns [to] ‘walk’ after a couple of 

previous failed attempts to coordinate with the Mexicans.” 

As noted, agents seized the 15 firearms from Lacarra-Badilla, and 

investigative activity indicated that 

 However, ATF had not maintained surveillance of Celaya. Garcia 

told us they did not attempt to follow Celaya because they assumed that 

Lacarra-Badilla had all of the firearms and were trying to make the border stop 

look as random as possible. However, approximately 30 minutes before the 

stop of Lacarra-Badilla at the Nogales POE, ATF received information indicating 

that 

 

 

 

 

 

 

 

 Notably, several weeks prior to the October 5 interdiction of firearms 

involving Lacarra-Badilla, ATF had obtained a warrant to obtain real-time GPS 

mobile tracking information for the cell phone used by Celaya. When asked 

about the tracker and the information suggesting that Celaya was transporting 

firearms to Mexico, Garcia told us that they were more focused on LacarraBadilla and on maintaining electronic surveillance at that time, and that they 

did not have a strong enough indication that Celaya was transporting firearms 

“to base the whole case on a traffic stop and a search for guns.” 

The FFL said that Garcia and Higman told him ATF planned to wait to 

arrest Celaya so that they could keep “getting good intel from his phones.” 

However, according to a recorded conversation between the FFL and Garcia on 

October 4, 2007, Garcia instructed the FFL to tell Celaya that the border 

seizure made it too risky to sell more firearms and that they should conclude 

their business. Similarly, at ATF’s direction, the FFL stated in an e-mail to 

Egurrola-Leon’s girlfriend that he planned on “lying low and waiting until this 

blows over before I sell more guns.” This allowed the FFL to stop selling 

firearms to the subjects without causing them to drop their phones and flee to 

Mexico. The FFL made no additional firearms sales to the Operation Wide 

Receiver subjects after October 4, 2007. 

Following the arrest of Lacarra-Badilla, ATF agents briefly directed their 

efforts at developing evidence to link Egurrola-Leon to Ferraro’s OCDETF drug 

trafficking case, Operation Iron River. Between October 12, 2007, and 

December 10, 2007, ATF worked with ICE to conduct additional investigation 

of Valencia and Egurrola-Leon. In early December 2007, Garcia instructed the 

FFL to send an e-mail to Egurrola-Leon that stated the last gun show wiped 
66 

out his inventory and that the FFL would e-mail Egurrola-Leon when he had 

more firearms available. Garcia noted in the case management log, “[f]irearms 

are not expected to be sold to Israel [Egurrola-Leon] in the future.” ICE 

subsequently began a separate investigation into Egurrola-Leon and his 

involvement in illegal narcotics.” Egurrola-Leon was murdered in Mexico in 

February 2010. 

H. Summary of Firearms Purchases and Seizures 

Of the 474 firearms purchased during Operation Wide Receiver, ATF 

Tucson did not interdict 410 of them. Some of the firearms that were not 

interdicted were later recovered in the United States and Mexico. For example, 

42 firearms purchased during Operation Wide Receiver were recovered in 

Mexico between January 2007 and August 2011.57

We found that the vast majority of the firearms that were not interdicted 

were purchased in transactions demonstrating clear evidence of illegality. This 

number included 36 firearms that the subjects purchased and took to Mexico 

while Tucson agents were conducting electronic surveillance, and 59 firearms 

that were sold to the subjects by the FFL in 8 transactions between February 

12 and May 28, 2007, with minimal or no surveillance by ATF. 

 In April 2008, a firearm 

purchased by Gonzalez was one of 60 firearms found at the scene of a gun 

battle between competing factions of the Arellano-Felix Organization in 

Tijuana, Mexico, in which 18 people were killed. Another firearm purchased by 

Gonzalez was recovered around the same time in Tijuana, Mexico, at the scene 

of an attempted attack on a Mexican police commander as he attended his 

children’s birthday party. 

Tucson agents did interdict and seize firearms purchased during 

Operation Wide Receiver in limited instances. In addition to the 17 lower 

receivers intercepted in the June 2006 UPS shipment to San Diego, seizures 

included 32 firearms during the traffic stop of Estrella-Sesma and on 

July 12, 2007, and 15 firearms during the border stop of Lacarra-Badilla on 

October 5, 2007, after the focus of the investigation had shifted to developing 

evidence of drug activity. 

 

57 Data obtained from ATF’s National Tracing Center indicates that the first recovery in 

Mexico of firearms purchased during Wide Receiver was in January 2007. However, Tucson 

agents did not learn that any firearms had been recovered in Mexico until July 24, 2007, and 

these were firearms purchased by Celaya on March 30 and June 26, 2007. This discrepancy 

likely results from a delay between when the firearms were recovered and when they were 

traced.
67 

Firearms Purchases and Seizures

Phase Purchased Seized Total Cost

Wide Receiver I 186 17 $41,355.00

Wide Receiver II 288 47 $224,032.75

Total 474 64 $265,387.75

VI. Prosecution of the Case 

A. Handling of the Case by the U.S. Attorney’s Office 

Between March 2006 and August 2009, Operation Wide Receiver passed 

through the hands of three prosecutors in the U.S. Attorney’s Office, with a 

fourth prosecutor involved in discussions about the case and in helping obtain 

court orders. Maldonado was assigned the matter from its outset until she left 

the office in November 2007, even though Ferraro handled the applications 

for electronic surveillance and was closely involved in decisions about case 

strategy beginning in September 2007. Ferraro took over the matter from 

Maldonado following her departure, and oversaw the end of the investigation, 

but did not indict the case before he left the U.S. Attorney’s Office in late 2008 

to become a U.S. Magistrate Judge.58

Despite the turnover in prosecutors, there was discussion within the U.S. 

Attorney’s Office in 2008 about indicting the case. On January 31, 2008, 

Garcia met with Ferraro and discussed plans to indict the case in the next few 

months. Garcia delivered a case report to Ferraro on March 6, 2008, that 

recommended prosecuting 21 subjects in the United States and Mexico on 

charges including false statements under 18 U.S.C. § 922(a)(6), arms export 

without a license under 22 U.S.C. § 2278, and conspiracy under 18 U.S.C. 

§ 371.

 Upon Ferraro’s departure, Operation 

Wide Receiver was transferred to another prosecutor, Serra Tsethlikai, who 

made little progress on the case. 

59

 

58 In his comments to the OIG following his review of the draft report, Ferraro said he 

had been asked to “babysit” the investigation following AUSA Maldonado’s departure until her 

position in the Project Safe Neighborhoods Unit could be filled.

 Garcia and Ferraro discussed the case several times in April and May, 

59 ATF recommended prosecuting the primary subjects involved in Wide Receiver I and 

II; other individuals who made straw purchases during Wide Receiver II, including Rodrigo 

(Cont’d.)
68 

and Garcia began trying to obtain the certifications from ICE and the U.S. 

Department of State that was needed to prove that the subjects were not 

licensed to export firearms. Ferraro told the OIG that he intentionally delayed 

the indictment six months to protect the identity of a second confidential 

informant who was working with ATF and ICE in Operation Iron River. 

In late September 2008, Garcia and another agent contacted and 

interviewed , one of the straw purchasers in Operation Wide Receiver 

I. 

 

 

 

 Around the same time, however, Ferraro told Garcia that he 

would be appointed as a U.S. Magistrate Judge in the months to come and 

would not be indicting the case. 

Ferraro told the OIG that he developed concerns about prosecuting the 

case when he began looking into filing firearms export charges. According to 

Ferraro, he told Garcia that he wanted to use a Mutual Legal Assistance Treaty 

(MLAT) to file a formal request for information about the investigation 

conducted by Mexican law enforcement, but that he understood after talking to 

Garcia that the only evidence that would have existed would have been reports 

and information related to weapons seized at crime scenes in Mexico. Ferraro 

told the OIG that based on this discussion with Garcia, he formed the 

impression that Tucson agents did not have a relationship with Mexican law 

enforcement and only had planned to send a list of serial numbers to the ATF 

attaché in Mexico City and run those numbers when firearms were recovered in 

Mexico. 

Ferraro said that after learning this information from Garcia, he talked to 

Bob Miskell, then the Criminal Chief in Tucson, and told Miskell that he did 

not want to indict the case. Miskell confirmed that Ferraro was “unhappy” 

with the case and thought it would be problematic to prosecute because 

firearms had gone to Mexico, but that Ferraro never said that he wanted to 

decline prosecution. 

Following Ferraro’s departure from the U.S. Attorney’s Office, Operation 

Wide Receiver was reassigned to AUSA Serra Tsethlikai in November 2008. 

Tsethlikai voiced her concern about the case, stating in an e-mail in 

mid-December 2008, “I reviewed Tom’s prosecutor’s memo. I don’t like the 

case. I think it is wrong for us to allow 100s of guns to go into Mexico to drug 

 

Rodriguez-Contreras and Rigoberto Estrella-Sesma; and alleged co-conspirators in Mexico and 

Arizona.
69 

people knowing that is where they are going.” Tsethlikai also met with her 

supervisors, including then-Tucson Criminal Chief Bob Miskell, and with 

Tucson ATF agents to express these concerns. Despite her concerns, Tsethlikai 

agreed to proceed with the case and move toward indictment. However, she did 

not make significant progress on the case before accepting a detail to another 

office in August 2009.60

In sum, while we found that some of the AUSAs had concerns about the 

tactics used by ATF during the investigation, we found no evidence to indicate 

that the U.S. Attorney’s Office had made a decision to refuse to indict the Wide 

Receiver case because of either the handling of the investigation by ATF or the 

investigative techniques employed. 

B. Assignment of a Criminal Division Prosecutor 

In April 2009, Attorney General Eric Holder and Department of 

Homeland Security (DHS) Secretary Janet Napolitano met with Mexican 

officials in Cuernavaca, Mexico, to discuss efforts to curb firearms trafficking 

from the United States to Mexico. During these discussions, Attorney General 

Holder promised to convene a working group to review and recommend ways to 

improve efforts to curb firearms trafficking, focusing on investigation and 

interdiction, training, prosecution, and intelligence-sharing. The 

recommendations issued by this working group included establishing a 

coordinated firearms trafficking prosecution strategy and making firearms 

prosecutions a regional priority along the Southwest border. 

As part of this effort, the Criminal Division began pursuing efforts to 

assign prosecutors from its Gang Unit to firearms cases in Southwest border 

districts. Kevin Carwile, then the Chief of the Gang Unit, and his Deputy Chief, 

James Trusty, told the OIG that they offered to have Laura Gwinn, an 

experienced prosecutor, help Southwest border U.S. Attorney Offices with 

firearms cases. On July 8, 2009, Trusty sent an e-mail to Gretchen Shappert, 

the Anti-Gang National Coordinator at the Executive Office for United States 

Attorneys, asking for her “assistance in coordinating some conversation with 

USA’s (or Strike Force chiefs) along the SWB, particularly Arizona, New Mexico, 

and Southern California” to arrange for Gwinn to “prosecute (as either lead or 

 

60 After reviewing a draft of the report, Tsethlikai submitted comments stating that she 

wanted to emphasize that the investigation had stalled when she inherited the case; that when 

Betancourt re-emerged while she was assigned to the case, she advised Tucson agents that she 

was prepared to arrest him if he contacted the FFL to purchase firearms, move forward with an 

immediate complaint, and indict the rest of the case within 30 days; that she voiced her 

concerns about the tactics used in Operation Wide Receiver to her supervisors; and that during 

the time that Operation Wide Receiver was assigned to her she had a heavy caseload including 

multiple jury trials.
70 

as co-counsel) gun trafficking offenses, and she could help the USAO’s and 

DOJ develop a coordinated, consistent approach to these types of cases.” 

On July 28, 2009, George Gillett, who became an ASAC in Phoenix in 

June 2008, asked ATF’s Tucson Office to compile a list of lingering 

prosecutions, which he planned to forward to the U.S. Attorney’s Office for 

follow up. On August 3, 2009, Tucson agent James Small sent an e-mail to 

Gillett identifying Operation Wide Receiver as the only lingering prosecution, 

stating, “AUSA [Tsethlikai] was also pushing back w/ moral dilemma w/ the 

G[overnment] allowing the targets to traffic 300+ firearms to Mexico. I advised 

AUSA that the case was investigated within ATF Trafficking Guidelines and in 

furtherance of attempting to identify and secure evidence on targets inside 

Mexico receiving the firearms for the drug cartels.” Gillett then forwarded 

Small’s e-mail to Miskell, stating, “[T]hanks for assisting with some of our 

lingering prosecutions. ... Can you please take a look at the below e-mail and 

let me know if we can get this moving.” 

On August 12, 2009, Carwile and Trusty learned from Shappert that an 

Arizona case involving “300-500 guns” needed a prosecutor, and they asked 

Gwinn to handle it. On September 2, 2009, Trusty sent an e-mail to Gwinn 

stating, “Kevin [Carwile] and I had a long chat with Lanny today about [Gang 

Unit] cases, investigations, etc. He is VERY interested in the Arizona gun 

trafficking case, and he is traveling out there around 9/21. Consequently, he 

asked us for a ‘briefing’ on that case before the 21st rolls around.” Gwinn 

apparently did not prepare a written briefing for Trusty, instead e-mailing him 

copies of several orders authorizing electronic surveillance and the November 

2007 affidavit supporting the fifth wiretap application. 

In late September 2009, Gwinn spent a week in Tucson reviewing 

Operation Wide Receiver for possible prosecution. Gwinn told the OIG that 

while in Tucson she learned that ATF “let[] 300 or 400 guns get across the 

border.” She sent an e-mail to Trusty about this, and he replied, “If guns 

getting across is the only problem (and the AUSAs are too busy) we’re in good 

shape. Drug cases learn that hundreds of kilos have gone across into the US, 

so I don’t think missing some seizures is anything fatal.” Trusty told the OIG 

he did not mean to excuse the fact that guns went to Mexico, but that he and 

Gwinn looked at Operation Wide Receiver to see if it could be indicted and 

decided that it could. 

In late September 2009, Newell asked Gillett to prepare a summary of 

Operation Wide Receiver to provide to Carwile. After receiving the summary, 

Newell sent an e-mail to Gillett on September 26, 2009, stating, “Before I give 

this to Kevin [Carwile] today I want Dennis Burke to be aware of what we’ve 

done to try to get this case prosecuted,” and asking Gillett to summarize the 

meetings between ATF Tucson and the U.S. Attorney’s Office regarding 

prosecution of Operation Wide Receiver. Gillett replied: 
71 

One of Kevin’s attorney’s [sic] spent most of this past week in 

Tucson reviewing our case. This was at the request of the USAO in 

Tucson that wanted an objective, fresh set of eyes to review the 

case . . . . Kevin’s comments were that his attorney felt the case, 

while not perfect, was prosecutable and straight forward. Unless 

I’m missing something, if Dennis Burke doesn’t already know 

about this, it’s because Tucson didn't keep him in the loop. 

Newell replied, “That’s what I am afraid of. I’ll give him a heads-up anyway as 

a courtesy. I’m trying to establish a straight-forward [sic] relationship with this 

guy.” 

The Gang Unit accepted the case for prosecution in late September 2009. 

Between September and December 2009, Gwinn traveled to Tucson every other 

week to prepare the case for indictment. Gwinn initially planned to indict in 

December 2009 but had to postpone indictment because of delays in obtaining 

information from the Mexican government about the firearms recovered in 

Mexico. Gwinn then planned to indict the case after finishing a capital murder 

trial in early 2010. 

C. Reactions to Operation Wide Receiver by the Criminal Division 

Front Office 

Gwinn decided to indict Operation Wide Receiver as two conspiracies and 

drafted separate prosecution memoranda for Operation Wide Receiver I and II 

in late 2009 and early 2010. Both prosecution memos detailed the number of 

firearms purchased and the evidence against each defendant, including 

information from real-time recordings made of the transactions between the 

FFL and the subjects, and both noted, “[T]here are many things about this case 

that could be embarrassing to ATF,” including the fact that that guns “were 

sold and not accounted for” and likely “are in Mexico killing people.” 

In mid-March 2010, Carwile prepared talking points for Jason Weinstein, 

a DAAG in the Criminal Division, on two firearms trafficking cases in which the 

Gang Unit was involved, Operation Wide Receiver and a case that was 

incorrectly identified as Operation Fast and Furious.61

 

61 The talking points incorrectly described Operation Fast and Furious as “an extensive 

firearms trafficking investigation involving ATF’s Phoenix, Houston and Dallas field offices,” 

and noted the recovery of approximately 550 firearms in 2008 during two seizures in Mexican 

border towns (which was before Operation Fast and Furious began). When asked about these 

talking points by the OIG, Weinstein noted that this description was inaccurate and said that 

the talking points were actually describing an unrelated project in which a Gang Unit 

prosecutor attempted to help ATF turn tracing data from the seized firearms into evidence that 

could be used to build an historical case. Moreover, as discussed in Chapter Five, while 

prosecutors from the Gang Unit offered to assist on Operation Fast and Furious, the U.S. 

Attorney’s Office declined the offer.

 Carwile described 
72 

Operation Wide Receiver in these talking points as an “extensive firearms 

trafficking case involving ATF, Gang Unit and USAO Tucson. With the help of a 

cooperating FFL, the operation has monitored the sales of over 450 weapons 

since 2006, particularly lower receivers of AR-15 rifles.” He then sent the 

talking points to Weinstein. After receiving the talking points, Weinstein sent 

an e-mail to Carwile, stating, “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?” 

Carwile answered (incorrectly), “My recollection is that they learned afterward. 

The pros memo will be ready soon.” 

Trusty sent the prosecution memorandum for Operation Wide Receiver I 

to Carwile and Weinstein on March 31, 2010. On April 12, 2010, Weinstein 

sent an e-mail to Carwile and Trusty with his reaction to the prosecution 

memo: 

Been thinking more about “Wide Receiver I.” 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 operations I've been involved in 

planning - and there will be press about that. In addition, this 

diary that casts aspersions on one of the agents is a challenge for 

the case but also something that is likely to embarrass ATF 

publicly. For those reasons, I think we need to make sure we go 

over these issues with our front office and with Billy Hoover before 

we charge the case. Of course we should still go forward, but we 

owe it to ATF HQ to preview these issues before anything gets 

filed.62

Weinstein told the OIG that the description of Operation Wide Receiver in 

the talking points and the prosecution memorandum of ATF having 

“monitored” the sale of firearms by the FFL and recorded transactions in real 

time raised a “red flag” that ATF had allowed guns to “walk.” Weinstein said 

that this description suggested that ATF had developed evidence that the 

purchases were illegal, giving agents the legal authority to interdict the 

firearms the moment the transactions were completed. Weinstein told us that 

his experience as a violent crime prosecutor gave him a “sensitive radar” for not 

allowing guns to get into the hands of the wrong people. He said that, as a 

result, he had a broader definition of “walking” than many people, defining it to 

 

62 Information in the FFL’s journal suggested that an ATF agent and a supervisor may 

have accepted gifts from him. This is the subject of an ongoing investigation by ATF’s Office of 

Professional Responsibility. In addition, the journal purported to recount a conversation 

between two Tucson agents in which they made disparaging comments about another agent.
73 

include not only situations where agents had the legal authority and ability to 

interdict and chose not to, but also a “recklessness” component – that is, if ATF 

agents were trying to follow and interdict firearms but their tactics were 

repeatedly unsuccessful, and they did not adapt those tactics, that also was 

“walking.”

Weinstein and Trusty met with Lanny Breuer, the AAG for the Criminal 

Division, on April 19, 2010, to brief him about Operation Wide Receiver. 

According to Trusty, he thought that Operation Wide Receiver potentially was a 

“black eye” for ATF, and he and Weinstein wanted to brief Breuer so that he 

would be prepared for eventual press questions. Breuer told the OIG that he 

learned from Weinstein that ATF had allowed firearms to go into Mexico in 

Operation Wide Receiver even though there had been legal authority to 

interdict them, and he said that he and Weinstein found this upsetting given 

the time they had devoted to dealing with Mexican cartel issues. Breuer also 

said that he told Weinstein to talk to ATF leadership to make sure that they 

understood that the Criminal Division planned to move forward with the case, 

but that the investigation had used “obviously flawed” techniques. Weinstein 

also told us that Breuer told him to bring the matter to the attention of ATF 

leadership. 

After this meeting, Trusty sent an e-mail to Carwile stating, “[Lanny] 

wants us to meet with Ken [Melson] and Billy [Hoover] at some point so they 

know the bad stuff that could come out.” Weinstein and Trusty then made 

plans to discuss Operation Wide Receiver with William Hoover, then the Acting 

Deputy Director, and William McMahon, Deputy Assistant Director of Field 

Operations (West). In an e-mail to Hoover dated April 20 regarding the 

upcoming meeting, Weinstein stated, “[t]he reason we wanted to meet with you 

before charging is that the case has 2 aspects that could create media 

challenges and we wanted to talk through them first.” In an e-mail dated April 

28, Weinstein also invited two representatives from the Office of Public Affairs 

(OPA) to the meeting “to discuss an impending indictment in a gun trafficking 

case that has some rather significant (and I hope unique) press challenges.” 

On April 28, 2010, Weinstein, Trusty, and the two OPA representatives 

met with Hoover and McMahon. According to Weinstein and Trusty, they 

briefed Hoover and McMahon on the transactions in Operation Wide Receiver I, 

including the fact that there was legal authority to interdict the firearms and 

that the agents consistently failed to do so, and they used the term “walking” to 

describe the tactics used in the investigation. Notes taken by an OPA 

representative at the meeting stated, “vast majority walk converted to violent 

crime.” Weinstein told us that they also discussed a gift that the FFL provided 

to an agent working on the case that the agent did not report to management 

and the issues posed by the journal maintained by the FFL. The remainder of 

the time was spent discussing ways to avoid negative press. Weinstein told the 

OIG that the focus on managing the “messaging” for the case was not just to 
74 

avoid embarrassment for ATF, but also to address concerns that negative press 

could affect the viability of the prosecution. 

When questioned by the OIG, Trusty stated that the meeting was not 

exclusively about the press scrutiny that ATF would get, but that he would not 

characterize the discussion at the meeting as “admonishing” ATF or “wagging a 

finger and saying . . . you must not do this again.” Trusty told us he viewed 

Operation Wide Receiver as a “rarity.” Weinstein similarly described Operation 

Wide Receiver as an “extreme aberration” and a “one-off” that had happened 

years before under a “previous regime.” Weinstein told the OIG that he had no 

reason to think that Operation Wide Receiver took place with the blessing of 

ATF Headquarters. He said that he “walked away [from the meeting] . . . with a 

very strong sense from Mr. Hoover that he had the same reaction that I did, 

that the tactics were not acceptable and that I had no reason to think, based 

on his reaction, that these were the kind of things that would be tolerated 

under his watch.” As a result, he said, they did not discuss whether guns had 

been allowed to walk in other cases, and Weinstein did not have any follow-up 

with Hoover or McMahon on this issue.63

Hoover initially told the OIG that he did not recall discussing guns 

“walking” during the meeting and that they only discussed other issues 

involving Operation Wide Receiver – namely, that ATF had used an FFL as a 

confidential informant, which he considered a conflict of interest, and that an 

agent and a supervisor had accepted gifts from the FFL. Hoover later changed 

his testimony, telling the OIG that a briefing paper he received about Operation 

Wide Receiver on April 28, 2010, alerted him that agents were not stopping 

firearms at every chance, and that he may have discussed this at the meeting 

with Weinstein and Trusty. McMahon, however, told us he did not recall 

discussion of guns “walking” at this meeting. McMahon told us that he 

remembered discussing a possible internal investigation into a gift the agent 

accepted from the FFL, the timing of indictments in Operation Wide Receiver, 

and embarrassment about how long it had taken to get the case prosecuted, 

but said that “gun walking never came up.” 

After the meeting, Weinstein sent an e-mail to Breuer informing him that 

the group had met to “talk about this gun trafficking case with the issues 

about the guns being allowed to walk for investigative purposes.” Weinstein 

also wrote that the group thought the best approach was to indict Operation 

Wide Receiver I and II under seal and then unseal them as part of Project 

Deliverance “where focus will be on aggregate seizures and not on particulars 

 

63 As described in Chapter Five, Weinstein and McMahon discussed Fast and Furious 

at or after this meeting.
75 

of any one indictment”.64

Breuer told the OIG that his understanding was that Weinstein left the 

meeting with the view that Operation Wide Receiver was an aberrant situation 

that had occurred many years earlier, and that the leadership of ATF did not 

condone it. He said that based on this understanding, he did not tell anyone 

else within the Department about the tactics used in Operation Wide Receiver 

and believed at the time that he had appropriately resolved the issue by raising 

it with ATF leadership. 

 Two days later, on April 30, Breuer responded by 

asking Weinstein whether there was “[a]nything I should know about thos 

[sic]”? Weinstein replied, “As you’ll recall from Jim’s briefing, ATF let a bunch 

of guns walk in effort to get upstream conspirators but only got straws, and 

didn’t recover any guns. Some were recovered in [Mexico] after being used in 

crimes. Billy, Jim, Laura, Alisa and I all think the best way to announce the 

case without highlighting the negative part of the story and risking 

embarrassing ATF is as part of Deliverance.” 

The impact of Weinstein’s knowledge of the tactics used in Operation 

Wide Receiver on his understanding of Operation Fast and Furious is 

discussed in Chapter Five. As discussed in Chapter Six, although Breuer and 

Weinstein knew that guns were allowed to walk in Operation Wide Receiver, 

they failed to raise it with others in helping to formulate the Department’s 

response to a letter sent to Kenneth Melson, ATF’s former Acting Director, by 

Senator Charles Grassley on January 27, 2011, raising concerns about “an 

ATF operation called ‘Project Gunrunner.’”

D. Indictments and Sentencing 

Operation Wide Receiver I was indicted under seal in May 2010. 

Gonzalez, Betancourt, and Horowitz were charged with conspiracy to violate 18 

U.S.C. § 554, 18 U.S.C. §§ 922(a)(5) and 924(a)(1)(A), and 22 U.S.C. 

§ 2778(b)(2) and (c), and violations of 18 U.S.C. §§ 922(e) and 924(a)(1)(A) and 

(D) Horowitz pleaded guilty to an information on May 11, 2010. The 

indictments for Betancourt and Gonzalez were unsealed on November 9, 2010, 

while Horowitz’s case was unsealed on April 19, 2011. Betancourt and 

Gonzalez entered guilty pleas on July 13 and October 20, 2011, respectively. 

Their sentences ranged from 366 days to 30 months in prison.

 

64 Project Deliverance was an interagency, cross-border investigation focused on the 

transportation networks used by Mexican cartels to distribute narcotics and smuggle weapons 

and cash across the U.S.-Mexico border. During the 22-month operation, law enforcement 

officials made 2,266 arrests and seized 501 firearms, in addition to large seizures of drugs and 

U.S. currency.
76 

Gwinn had planned to indict Operation Wide Receiver II under seal at the 

same time. According to an e-mail Gwinn sent to Trusty, however, she learned 

that Celaya was potentially linked to a Tucson stash house involved in 

Operation Fast and Furious, a Phoenix firearms trafficking investigation 

targeting “an organization moving guns in the thousands.” Emory Hurley, an 

AUSA in the Phoenix U.S. Attorney’s Office, told her that he was concerned that 

indicting Celaya would cause their targets to drop phones, and he asked Gwinn 

to delay indicting until late July 2010. After discussion with Hoover, Trusty 

replied by e-mail and stated that he had agreed that Operation Wide Receiver II 

would “ride shotgun” with Operation Fast and Furious. Hurley’s concerns 

about disrupting the Phoenix investigation also led Gwinn to delay unsealing 

the Operation Wide Receiver I indictments. 

Gwinn subsequently planned to indict Operation Wide Receiver II under 

seal in late October 2010, a week before Hurley’s target date for indictments in 

Operation Fast and Furious. In early October 2010, however, Hurley sent an email to Gwinn stating that he had deferred his target date but that she was 

“clear to deal with Wide Receiver without adversely affecting Operation Fast 

and Furious.” Gwinn subsequently included this information in a weekly 

update, stating that she planned to indict Operation Wide Receiver II on 

October 27, 2010, and that it would remain under seal until Operation Fast 

and Furious was ready for takedown. 

After reading this update, Weinstein sent an e-mail to Trusty on October 

17 asking, “Do you think we should try to have Lanny participate in press 

when Fast and Furious and Laura’s Tucson case are unsealed? It’s a tricky 

case given the number of guns that have walked, but it is a significant set of 

prosecutions . . . .” Trusty replied, “I think so, but the timing will be tricky, 

too. Looks like we’ll be able to unseal the Tucson case sooner than the Fast 

and Furious . . . . It’s not clear how much we’re involved in the main [Fast and 

Furious] case . . . . It’s not going to be any big surprise that a bunch of U.S. 

guns are being used in [Mexico], so I’m not sure how much grief we get for 

‘guns walking.’ It may be more like, ‘Finally they’re going after people who sent 

guns down there.’” 

When questioned about these e-mails, Weinstein and Trusty told the OIG 

that the “tricky case” was Operation Wide Receiver, not Operation Fast and 

Furious.65

 

65 AAG Breuer, who was not a recipient of the October 2010 e-mails, told the OIG that 

he did not recall them.

 Weinstein said that the concern underlying the statements in these 

e-mails was that participating in a press release about Operation Wide Receiver 

would highlight that “the investigation was terrible” and harm the case. As a 

result, they decided not to issue a press release when Operation Wide Receiver 
77 

was later unsealed. Weinstein explained the basis for the decision in a 

November 13, 2010, e-mail to Mythili Raman, the Chief of Staff and Principal 

Deputy Assistant Attorney General for the Criminal Division: “Lot of guns 

allowed to go south and [the unsealed indictments] came out on the same day 

as [the] IG Report on Gunrunner so Laura, Jim and I agreed the case would be 

weaved into [an] anti-ATF story.” As discussed in Chapter Five, both Weinstein 

and Trusty said that they did not have knowledge at this time that Operation 

Fast and Furious involved similar tactics. 

Operation Wide Receiver II was indicted under seal on October 27, 2010. 

Seven defendants were charged with conspiracy to violate 18 U.S.C. § 554, 

18 U.S.C. § 924(a)(1)(A), and 22 U.S.C. § 2778(b)(2) and (c), and violations of 18 

U.S.C. § 924(a)(1)(A). Violations of 18 U.S.C. §§ 922(d)(5)(A), 922(g)(5)(A), and 

924(a)(2) were included for several of the defendants. The indictments were 

unsealed on November 9, 2010. Celaya, Gonzalez, and Valencia pleaded guilty 

in October 2011, and their sentences ranged from 21 to 33 months. Two 

defendants, Rodriguez-Contreras and Estrella-Sesma, remain fugitives. 

Ricardo Mendez (who purchased firearms from the FFL in March 2007, as 

discussed above) was dismissed in November 2011 based on the testimony of a 

co-defendant who testified that Mendez was not involved in the conspiracy. 

The last defendant, Emmanuel Castro (who also purchased firearms from the 

FFL in March 2007), has not yet gone to trial. 

After Operation Wide Receiver was indicted, the relationship between 

Tucson agents, Gwinn, and the FFL began to break down. In April 2010, the 

FFL received notice that the high number of crime-related traces on firearms 

the FFL sold during Operation Wide Receiver had resulted in increased 

scrutiny by ATF’s Industry Operations Division. ATF Tucson subsequently 

conducted a compliance inspection and cited the FFL for several recordkeeping 

violations unrelated to Operation Wide Receiver. When the FFL was selected 

for a “warning conference” to address these recordkeeping issues in October 

2010, the FFL sent an e-mail to Tucson agents, asking, “Here’s my question to 

you and your supervisors... Really? With Operation Wide Receiver still 

unresolved do you want to give the person who will be your star witness a 

warning conference?” In April and May 2011, the FFL informed Tucson agents 

and Gwinn that he would no longer cooperate with the government during trial 

preparations for Operation Wide Receiver, asserting that Gwinn had instructed 

Tucson agents not to give him a monetary reward for his work in a different 

case. 

In September 2011, the FFL sent an e-mail to Gwinn stating that he had 

spoken to Ferraro and learned that Ferraro chose not to prosecute the case 

because “ATF lied to him and said that the guns were being 
78 

followed/interdicted by the Mexican authorities on the other side of the 

border.”66 Ferraro acknowledged having told the FFL that ATF had “lied” to 

him about Mexican authorities conducting surveillance of or interdicting the 

firearms that were going south during Operation Wide Receiver, but told us 

that he assumed that agents had begun with good motives but “didn’t tell 

everybody” when coordination with Mexico did not come to fruition. Ferraro 

later told us that he never got the impression that Garcia had really lied to 

him.67

VII. OIG ANALYSIS 

A. ATF’s Phoenix Field Division and Tucson II Group 

1. The Primary Goal of Operation Wide Receiver Was to 

Allow Straw Purchases to Continue in Order to Identify 

and Prosecute the Firearms Trafficking Organization 

ATF’s Tucson II group, directed and led by RAC Chuck Higman, 

conducted Operation Wide Receiver with the primary goal of identifying “money 

men” and high-ranking cartel members involved in trafficking firearms. 

 

66 See also Government’s Response in Opposition to Defendant’s Renewed Motion to 

Dismiss, U.S. v. Mendez, Case No. CR-10-03019-TUC-DCB/CRP (filed Oct. 21, 2011), at 11 

(response to defendant’s motion to dismiss based on this e-mail states that Ferraro 

encountered the FFL at a gun show and criticized ATF’s failure to interdict guns, telling the 

FFL that he had not prosecuted the case because ATF lied to him, but later told Gwinn that he 

was “overly harsh” in using the word “lie” in his conversation with the FFL).

67 In his comments submitted to the OIG following review of the draft report, Ferraro 

stated that “ATF had represented to numerous people they had a working relationship with 

vetted Mexican law enforcement officials” and that “SA Garcia and Mr. Higman both assured 

[him] this was true, so if they were unable to interdict the firearms before they got to the 

border, the Mexican officials would move in to continue the investigation.” Ferraro made 

similar statements to us in his OIG interview. When presented with Ferraro’s testimony, 

Garcia told us that he did not make any representations to Ferraro about the involvement of 

the Mexican government and did not think that Higman would have made such statements. 

Moreover, even if Higman told Ferraro that Mexican officials were involved in the case, it is 

unclear whether this would have been a misrepresentation. As described above, the 

operational plan for surveillance of the September 12, 2007, firearms purchase by Celaya 

stated that Tucson agents planned to follow the firearms to the border and hand off 

surveillance to Mexican authorities, who would follow the firearms to their final destination in 

Mexico, and that agents would arrest the subjects using marked police units to perform a 

traffic stop if Mexican authorities declined or failed to participate. While we have no other 

information regarding efforts to coordinate the September 2007 operation with Mexican 

officials, an entry in the FFL’s journal several weeks later quoted an ATF agent as stating, 

 

 

 
79 

Tucson agents and management viewed the case as a long-term investigation 

targeting two Mexican cartels, first the Arellano Felix Organization in Tijuana 

during Operation Wide Receiver I, and then a “crime family” associated with the 

Sinaloa cartel during Operation Wide Receiver II. As described above, Tucson 

agents told us that the goal of the investigation early on was to conduct 

surveillance to identify where straw purchased firearms were going and target a 

cartel rather than to arrest individual straw purchasers. 

In furtherance of this goal, ATF Tucson declined to arrest the main 

subjects or to interdict and seize weapons during the investigation despite 

ample evidence that the purchases were illegal. Evidence of illegality included 

the use of heat-sealed bundles of cash to purchase large quantities of firearms, 

open acknowledgement by the subjects that they were purchasing firearms for 

others, and statements made to the FFL that the firearms would be converted 

to fully automatic weapons or transported to Mexico. ATF allowed the 

purchases to continue and conducted surveillance of the buyers and load 

vehicles to develop information about the trafficking networks. Even when 

Tucson agents unsuccessfully attempted to coordinate the investigation with 

Mexican law enforcement, the goal was to maintain surveillance into Mexico 

and follow the firearms to the ultimate recipient to identify stash houses, 

trafficking routes, and other participants in the conspiracies, not to interdict 

the firearms. Tucson agents justified these decisions on the basis that making 

arrests and interdicting and seizing the firearms would simply result in the 

shift of straw purchases to other buyers and FFLs, leaving ATF unable to 

monitor the purchases and develop evidence of the conspiracy. 

Higman directly supervised Operation Wide Receiver. As noted, Higman 

did not respond to our requests for an interview and thus we were unable to 

obtain directly from him his perspective on the investigation. 

Contemporaneous e-mails and other evidence, however, make it clear that 

Higman was not only aware of and endorsed the investigative tactics used in 

Operation Wide Receiver, including the failure to interdict firearms, but was 

directly responsible for the use of these tactics. As described above, one agent 

told us that Higman “supervised and directed” agents in implementing the 

weapons transfer policy in ATF Order 3310.4B, permitting agents to decline to 

interdict firearms in furtherance of a broader investigation. Moreover, Higman 

knew that agents could have made arrests earlier in the investigation, telling 

the FFL in late June 2007 that the subjects were “indictable right now.” 

The SAC of ATF’s Phoenix Division during most of the investigative phase 

of Operation Wide Receiver was William Newell. Newell also oversaw Operation 

Fast and Furious, as we describe in Chapter 4. While we have few 

contemporaneous e-mails between Higman and Newell, other documents and 
80 

witness statements show that Newell clearly knew about and agreed with the 

strategy and tactics used in Operation Wide Receiver, other than the use of the 

FFL as a paid confidential informant.68

As described above, Newell reviewed and signed funding requests for 

Operation Wide Receiver indicating that the subjects had purchased numerous 

firearms, and that agents had attempted to coordinate with Mexican law 

enforcement with the understanding that “several firearms will likely make it to 

Mexico prior to a U.S. law enforcement successful surveillance of the firearms 

to the international border.” While these funding requests did not use the term 

“walking,” they stated that agents had seized only 17 lower receivers even 

though subjects had purchased large quantities of firearms over many months. 

The supplemental funding request also described the firearms as having been 

“unlawfully purchased,” noting that Celaya told the FFL in “monitored 

contacts” that Celaya received money to purchase firearms from individuals in 

Caborca, Mexico. Newell also read the memorandum addressed to the Deputy 

Assistant Director (West) and submitted it to the ATF Office of Chief Counsel 

seeking approval to conduct electronic surveillance, which similarly indicated 

that subjects had “unlawfully purchased, transferred or coordinated the 

purchase of approximately 300 lower receivers, rifles, and pistols” and had 

made statements that the firearms were transported to Mexico. 

We found that these memoranda put Newell on notice of facts indicating 

that Tucson agents had the legal authority to interdict and seize firearms but 

did not do so. Newell told us that he understood that the goal of Operation 

Wide Receiver was to take down a firearms trafficking organization. Newell also 

told us he thought the Tucson agents’ strategy of targeting the command, 

control and financing of the firearms trafficking organization was a “good 

strategy . . . to make the greatest impact on a group like this.” Yet when asked 

about the tactics used during Operation Wide Receiver, Newell did not admit 

having contemporaneous knowledge of “walking.” He told us that he defined 

“walking” to occur only when agents placed ATF property, such as firearms 

purchased by ATF, in the hands of a suspect, allowed that suspect to leave, 

and took no steps to arrest or recover the firearms. He said that he considered 

situations in which agents did not seize firearms when they had probable cause 

 

68 Despite this stated objection to the FFL’s status as a confidential informant, after he 

learned of the FFL’s status, Newell at no time took action to end the relationship even though 

he knew that all of the firearm sales by the FFL during the course of the investigation were 

under the authority and control of ATF. Given the control ATF exercised over the FFL as a 

confidential informant, if Newell had any concerns about the investigative plan, he could have 

told agents to cease authorizing the FFL to make sales to straw purchasers. Newell took no 

such action.
81 

to do so to be “failure to interdict” rather than “walking” because the firearms 

were not provided by ATF.69

Newell acknowledged, however, that failing to seize firearms that were 

sold by a cooperating FFL at ATF’s direction may have been “walking” if agents 

had probable cause. However, he emphasized that both “walking” and “failure 

to interdict” contemplate that agents had probable cause to seize the firearms, 

and he maintained that in Operation Wide Receiver the U.S. Attorney’s Office 

repeatedly told Tucson agents that there was not probable cause to interdict 

and seize firearms or to make arrests. 

We found no evidence to support Newell’s claim. Indeed, Tucson agents 

told us that they had no difficulty getting firearms cases prosecuted by the 

Tucson U.S. Attorney’s Office, and numerous witnesses stated that the Tucson 

Office did not follow the so-called corpus delicti policy requiring physical 

recovery of firearms to prosecute straw purchaser cases.70

In sum, the evidence demonstrated that the decision to not interdict 

firearms despite having probable cause to do so was a decision made by the 

ATF Phoenix Field Division, and was intended to advance ATF’s broader goal of 

 Further, as 

described above, Maldonado advised Garcia in March 2006, only weeks after 

the beginning of the investigation, that there was enough evidence to support a 

false statements charge against Gonzalez under 18 U.S.C. § 922(a)(6). Beyond 

this, we found that Maldonado had a limited role in the investigation and 

infrequent contact with Garcia. Additionally, the ATF agents went forward and 

arrested and “flipped” Gonzalez in February 2007. 

 

69 In his comments submitted to the OIG following review of the draft report, Newell 

disputed our finding that he was on notice of the tactics being used in Operation Wide 

Receiver. Newell stated in his comments that he told the OIG during his interview that RAC 

Higman never informed him that Tucson agents were not making arrests and seizures even 

when they had the legal authority to do so. Newell also stated that the first funding request 

memorandum in Operation Wide Receiver that he reviewed stated that agents were pursuing 

traditional law enforcement techniques in the investigation and discussed coordination with 

the ATF Mexico Country Office, and did not state that agents were foregoing arrests or seizures 

or that the informant being used in the case was an FFL. Newell stated that the August 23, 

2007, memorandum was the first to indicate the informant was an FFL and detail several 

instances of straw purchasing activity witnessed by the informant. Newell stated that after 

learning this information he immediately took steps to express his displeasure about using an 

FFL as an informant and to gather additional information about the FFL’s role in the 

investigation. We did not find Newell’s argument regarding his level of knowledge of Operation 

Wide Receiver persuasive. As the SAC, Newell had a responsibility to be more familiar with the 

investigation, and we believe that the funding request memoranda conveyed more information 

about the case than Newell acknowledges.

70 We discuss the corpus delicti policy in the Phoenix U.S. Attorney’s Office and its 

relationship to Operation Fast and Furious in Chapter Four.
82 

identifying additional participants in the conspiracy. It was not the result of 

any evidentiary shortcomings identified by the U.S. Attorney’s Office.

2. Inadequate Attention to Public Safety Considerations 

In each phase of the investigation, Tucson agents, directed by Higman, 

prioritized developing information about the scope of the firearms trafficking 

conspiracy over taking steps to minimize the risk to public safety. For 

example, in June 2006, Higman urged the San Diego RAC to allow the 

surveilled delivery of 17 AR-15 lower receivers intercepted in a UPS shipment 

so that agents could develop intelligence about the trafficking network, even 

though Tucson agents had been told that the lower receivers were being 

combined with “short” uppers to produce illegal short-barreled rifles. When the 

San Diego RAC cited public safety and refused to allow the use of these tactics, 

Tucson agents expressed more concern about the resulting disruption to the 

investigation than the potential danger of not interdicting the firearms. 

Similarly, during Operation Wide Receiver II, Tucson agents allowed 

Celaya to continue purchasing firearms despite his statements that he was 

using money provided by relatives in Mexico to buy the firearms. In some 

instances, the agents conducted minimal surveillance of Celaya because the 

focus of the investigation had shifted to Egurrola-Leon, who the agents thought 

would yield more information about possible cartel connections. Tucson 

agents also did not interdict all of the firearms that were purchased after the 

agents received specific information that the weapons were being purchased for 

individuals in Mexico, once again deciding to prioritize the integrity of their 

investigation over taking steps to minimize the risk to public safety. Although 

Higman stated in a June 2007 e-mail that he was “no longer comfortable 

allowing additional firearms to ‘walk,’ without a more defined purpose,” we 

have no evidence that this apparent concern motivated him to reconsider the 

decision not to interdict firearms. Indeed, after this e-mail expressing concern, 

Tucson agents continued to use the same tactics and interdicted only 15 of the 

57 firearms purchased during electronic surveillance. 

In sum, we found that ATF agents failed to adequately assess the risk to 

the public safety posed by allowing the straw purchasing activity to continue 

unabated. 

3. Flaws in the Conduct of the Investigation 

As discussed above, from the very beginning Tucson agents viewed 

Operation Wide Receiver as a different type of firearms trafficking case, 

describing it as a “different direction” from previous investigations. 

Nonetheless, at the direction of Higman, agents also employed many of the 

same investigative tactics they used in standard firearms investigations in the 

hope that these would be successful. Agents conducted multiple surveillances 
83 

of the suspected traffickers in an attempt to identify suspect vehicles, stash 

houses, and individuals. However, agents were unsuccessful in their attempts 

to follow suspect vehicles to the border until late in the investigation because 

subjects used known counter-surveillance tactics and other practices that 

made it difficult to conduct effective surveillance.71

ATF Tucson also lacked the resources to effectively investigate a case of 

the scope and nature envisioned for Operation Wide Receiver. There were 

seven agents in the Tucson II group during the investigation, resulting at times 

in an inability to conduct or maintain surveillance. One agent told us that they 

sometimes conducted surveillances with only three agents because other 

agents were not available to assist. Moreover, only one of the agents we 

interviewed had proficiency in Spanish, and that agent often served as the 

interpreter for unit operations. The lack of Spanish-speaking personnel limited 

the Tucson agents’ ability to understand monitored and recorded contacts with 

the subjects. 

 Despite a repeated lack of 

success, and the continued uninterrupted flow of firearms to Mexico, agents 

failed to adapt their tactics or to devise ways to interdict and seize firearms 

without exposing the broader investigation, such as using local law 

enforcement to stop suspect vehicles and seize the firearms. 

Tucson agents told us they believed that conducting electronic 

surveillance was critical to allow them to determine when and where the 

subjects would be taking firearms. However, the office faced challenges 

funding the electronic surveillance. In addition, agents spent months collecting 

cell phone toll records before even starting the process to obtain real-time 

calling data, a prerequisite to establish the need for electronic surveillance. 

This resulted in part from Tucson agents’ and managers’ lack of experience 

conducting complex firearms trafficking investigations. Garcia was a new 

agent at the time and did not know how to subpoena toll records or obtain 

calling data, nor did any of the agents in his office have experience with these 

techniques. 

As a result, Garcia worked under Higman’s close supervision. Higman, 

however, was ill-equipped to lead a complicated firearms trafficking case on the 

Southwest border: much of his experience was at ATF Headquarters in 

legislative and public affairs and public policy, and his operational experience 

was primarily with explosives and arson cases on the East Coast. A more 

experienced Supervisory Special Agent with better knowledge of border issues 

may have recognized that the type of investigation envisioned exceeded the 

 

71 Moreover, had agents succeeded in maintaining surveillance to the border, Bazan 

told us he thought it would have been impossible for Mexican law enforcement to follow the 

subjects to their ultimate destination through areas of Mexico with significant cartel activity. 
84 

resources of his Tucson group and at a minimum required the use of other 

investigative techniques much earlier in the investigation in order to minimize 

the danger to public safety. 

4. Use of the FFL as a Confidential Informant 

Under the direction and control of Tucson agents, the FFL sold large 

quantities of firearms to the Operation Wide Receiver subjects despite clear 

evidence that the purchases were illegal, conduct that potentially would have 

been itself prosecutable had he not been working as a confidential informant.72

 ATF’s policy at the time allowed the use of FFLs as confidential 

informants.

 

Tucson agents had the FFL act like a “dirty FFL” to gain the trust of the buyers 

and lead them to give him information. Indeed, the entire investigation was 

premised on the ability of Tucson agents to monitor straw purchases made 

from the FFL, determine where these firearms were going, and identify who was 

providing the money for them. 

73

 

72 Criminal charges against FFLs may be brought for recordkeeping violations arising 

from a dealer making a false statement in a required record or failing to maintain a required 

record. See 18 U.S.C. §§ 922(m) (false entry in records maintained by a federal firearms 

dealer), 924(a)(3)(A) (false statement by a federally licensed dealer). An FFL also may be 

charged with aiding and abetting false statements made in connection with acquisition of a 

firearm, see 18 U.S.C. § 924(a)(1)(A), or conspiracy to export firearms without a license. See 18 

U.S.C. § 371 and 22 U.S.C. § 2778.

 However, no one appears to have recognized and taken into 

account the implications of authorizing illegal sales by an FFL or the conflict of 

interest that arises from the use of an FFL as a paid confidential informant. In 

addition to its investigative function, ATF regulates, licenses, and audits FFLs. 

Paying an FFL to act as an informant and facilitate otherwise illegal sales 

potentially is in tension with ATF’s regulatory function. The use of the FFL in 

this case illustrates the conflict: the high number of crime-related traces on 

firearms the FFL sold during Operation Wide Receiver resulted in increased 

scrutiny by ATF’s Industry Operations Division, and the subsequent inspection 

and warning conference to address recordkeeping violations strained the 

relationship with the FFL. Indeed, upon learning that he had been selected for 

a “warning conference,” the FFL e-mailed the agents and asked, “With 

73 We note that the Attorney General Guidelines regarding the use of confidential 

informants requires advance, written authorization by the SAC and the U.S. Attorney for a 

specified period, not to exceed 90 days, where a confidential informant will commit “Tier 1 

Otherwise Illegal Activity,” which includes, among other things, activity that would constitute a 

misdemeanor or felony if committed by a person acting without authorization and that involves 

the commission, or the significant risk of the commission, of any act of violence by a person or 

persons other than the confidential informant. Changes to ATF’s confidential informant policy 

incorporate the Attorney General Guidelines and are discussed in Chapter Seven.
85 

Operation Wide Receiver still unresolved do you want to give the person who 

will be your star witness a warning conference?” 

Agents also failed to secure the necessary approvals for allowing the FFL 

to conduct otherwise illegal activity, namely the repeated sales of firearms to 

known straw purchasers, as a confidential informant. ATF’s confidential 

informant policy at the time contemplated that ATF could use informants to 

perform otherwise illegal acts where “absolutely necessary to successfully 

complete the investigation.” See ATF Order 3250.1A § 6(f). However, such 

activity required the approval of the relevant Deputy Assistant Director for 

Field Operations. Id. We found no evidence that Tucson agents sought or were 

granted such approval. 

Tucson agents’ operation of the FFL may have run afoul of ATF’s 

confidential informant policy in several other respects as well. For example, 

ATF Order 3250.1A §§ 1, 3(a)(20), requires that the use of confidential 

informants be carefully controlled and closely monitored. Tucson agents failed 

to do so. As noted above, the FFL sold 59 firearms to the subjects in eight 

transactions conducted with minimal or no surveillance by Tucson agents. 

Similarly, Tucson agents allowed the FFL to sell large quantities of firearms out 

of his house to buyers with suspected cartel ties, at times with no monitoring 

or surveillance by ATF. While Higman told the FFL that ATF would conduct a 

threat assessment and potentially relocate him when the case went to trial, the 

failure to consider and take adequate precautions to ensure his safety during 

the investigation violated ATF Order 3250.1A § 3(a)(21), which required agents 

to take into account the risk of physical harm to the FFL and his immediate 

family. Additionally, agents inappropriately shared information about the case 

with the FFL, including the use of electronic surveillance. The FFL maintained 

recordings and detailed notes about the investigation, including what he was 

told by the agents, on his home computer, where it was potentially vulnerable 

to being lost or stolen. These actions potentially jeopardized the investigation 

and placed both him and Tucson agents at risk. 

B. Role of the U.S. Attorney’s Office 

We found that the participation of the U.S. Attorney’s Office in Operation 

Wide Receiver was fragmented and ineffective. Attorneys and supervisors in 

the Tucson U.S Attorney’s Office did not afford Operation Wide Receiver the 

attention that a proactive, complex firearms trafficking investigation warranted, 

and therefore missed opportunities to minimize the threat to public safety 

posed by the investigation. 

As discussed above, three AUSAs were involved during the investigative 

phase of Operation Wide Receiver. All understood the goal of the investigation 

and knew that Tucson agents were not interdicting firearms but did little 

mitigate the risks of these tactics. Maldonado, who had primary responsibility 
86 

for Operation Wide Receiver until late 2007, lacked experience handling 

complex investigative cases and had an extremely limited view of her role in the 

case. As a result, she provided little guidance during the investigation. 

There is no record that Petermann technically was assigned to Operation 

Wide Receiver, and we have no information suggesting that he participated in 

decisions about the case beyond discussions in June 2006 about Higman’s 

request to introduce a source of “short” uppers. However, he apparently 

received information from Higman about case developments as the result of his 

involvement in the Iron River OCDETF case and did not bring to the attention 

of his supervisors the failure of Tucson agents to interdict firearms. 

Ferraro became involved in Operation Wide Receiver in August 2007, 

after the vast majority of the firearms had been purchased. However, Ferraro 

had the most active role in the case, having handled five applications for 

electronic surveillance and been closely involved in the decision to attempt to 

link subjects in Operation Wide Receiver to drug activity under investigation in 

the Iron River OCDETF case. Despite this, Ferraro denied to us having been 

assigned to Operation Wide Receiver, and told us that as far as he was 

concerned, he was an OCDETF lawyer working on Operation Iron River. Given 

that contemporaneous documents show that Ferraro knew that ATF Tucson 

conducted electronic surveillance under the Operation Wide Receiver case 

name, his statements to us disavowing working on the case indicate either a 

fundamental misunderstanding of it or a purposeful attempt to distance 

himself from decisions in which he participated. Moreover, regardless of the 

case name under which Ferraro believed electronic surveillance was conducted, 

he was involved in drafting applications for electronic surveillance attesting to 

the facts used to establish probable cause – namely, the firearms purchases 

and surveillances that Tucson agents carried out and documented during 

Operation Wide Receiver that we discuss in this report. 

Ferraro told us that he knew that “there were a lot of guns that [had 

gone] to Mexico” before he took over the case. Indeed, the affidavit prepared for 

the original application for electronic surveillance in August 2007 – which 

Ferraro reviewed and helped revise – contained information about 

 

 

 

 In addition, an affidavit in support of an 

extension of the electronic surveillance explicitly stated, 

 

 

 
87 

 

 Ferraro also reviewed and approved this affidavit.74

Moreover, while all of the assigned AUSAs involved in Operation Wide 

Receiver during the investigative phase told us that they thought that Tucson 

agents were working with Mexican law enforcement in some capacity, none of 

them could tell us precisely what that entailed. The challenges of coordinating 

law enforcement operations with Mexico, as well as the need to obtain evidence 

from Mexico for an eventual prosecution, should have led attorneys and 

supervisors to ask what coordination was taking place and who in Mexico was 

involved rather than relying on agents’ vague assurances. We found no 

evidence that this occurred. 

 During the 

conduct of electronic surveillance in September and October 2007 in Operation 

Wide Receiver, Tucson agents seized only 15 of the 57 firearms sold to subjects 

in the investigation. 

We also found that supervisors in the Tucson U.S. Attorney’s Office did 

not adequately supervise Operation Wide Receiver. We recognize that 

caseloads in the office were extremely high, rendering close supervision 

difficult. However, Operation Wide Receiver was one of the relatively few 

proactive cases in the Tucson office. Moreover, Tucson managers also 

understood that Operation Wide Receiver was not a typical firearms case. 

Former Criminal Chief Kimmins told us that she understood that Tucson 

agents planned to follow the firearms to the cartels and were working with 

Mexican authorities to hand off surveillance at the border. As noted above, 

however, we have been unable to establish whether a supervisor in the U.S. 

Attorney’s Office reviewed the applications for electronic surveillance which, 

while not then required by Department policy, would have been appropriate 

given the nature and sensitivities of the investigation. Under these 

circumstances, the case should have garnered closer scrutiny from 

supervisors, greater attention to the risk to public safety posed by the 

investigation, and a stronger effort to bring the case to indictment in a timely 

manner.

Finally, we found one occasion where the tactic of allowing firearms sold 

as part of Operation Wide Receiver to “walk” was described to the U.S. 

Attorney. Maldonado prepared a memorandum to then U.S. Attorney Paul 

Charlton dated July 13, 2006, which explicitly described Higman’s request to 

 

74 In his comments submitted to the OIG following review of the draft report, Ferraro 

stated that he tried to counsel Garcia how to make seizures without compromising the 

investigation by “building a wall” to isolate the seizures. Garcia, however, told us that Ferraro 

advised him that they had to catch the subjects in the act of trafficking firearms to prove an 

export violation because “until [the subject] takes them to Mexico, he didn’t take them to 

Mexico.”
88 

allow the FFL to sell “short” uppers to the Operation Wide Receiver subjects, 

thereby possibly allowing illegal weapons 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.” As described above, Charlton told us 

that although he did not remember the circumstances surrounding the 

memorandum, he believed he would not have approved the request and 

Maldonado assured him that the request was not approved. Although Charlton 

sent an e-mail after receiving the memorandum stating that he planned to meet 

with Newell several days later and would discuss the issue with him, neither 

Charlton nor Newell said they recalled any such discussions. However, we 

found no evidence that Tucson agents allowed short-barreled rifles to “walk” in 

Operation Wide Receiver. 

C. ATF Headquarters’ Knowledge of Operation Wide Receiver 

We found little evidence of involvement in Operation Wide Receiver by 

ATF Headquarters personnel during the investigation. As discussed above, 

Tucson agents submitted to ATF Headquarters two funding requests and a 

memorandum seeking authorization to submit an application for electronic 

surveillance to the district court. All of these memoranda described repeated 

purchases of large quantities of firearms by subjects in Operation Wide 

Receiver and referenced statements made to the FFL indicating that they were 

taking the firearms to Mexico.

SAC Newell signed these documents and submitted them to Carson 

Carroll, then the Deputy Assistant Director (West) of Field Operations at ATF 

Headquarters. Carroll told us that he had no recollection of Operation Wide 

Receiver generally or of any discussions with Newell about it. None of these 

documents prompted questions from Carroll about the number of firearms 

purchased, the investigative tactics used to develop evidence of a conspiracy, or 

the efforts by Tucson agents to coordinate the investigation with Mexican 

authorities. 

After reviewing the supplemental case funding memorandum in his 

interview with the OIG, however, Carroll told us that the statements about 

coordination with Mexico concerned him because agreements with officials 

outside the United States would have required the involvement of ATF’s 

International Affairs Office, as well as to the Assistant Directors of Enforcement 

Programs and Services and Field Operations. We found no evidence that this 

occurred or that others at ATF Headquarters were involved in Operation Wide 

Receiver during the investigation. 

These memoranda appear to have been the primary way by which ATF 

Headquarters could have learned about the tactics used in Operation Wide 

Receiver. Operation Wide Receiver was designated and funded as a “major 

case,” which Newell told us resulted in monitoring of the investigation by ATF 
89 

Headquarters. The ATF policy in effect at the time, however, indicates that 

investigations designated as “major cases” did not undergo substantive review 

or monitoring. 

Under this policy, a panel consisting of the Deputy Assistant Director 

(Field Operations), the Chief of the Case Management Branch, and several 

other officials at ATF Headquarters approved major case funding based on a 

memorandum summarizing the investigation and a review of entries in ATF’s 

case management database, N-Force. While we have no documents 

memorializing the basis for approving major case funding in Operation Wide 

Receiver, Carroll’s inability to recall the case and his statement that he 

reviewed “hundreds” of similar requests suggests that the approval process was 

perfunctory. Moreover, while the policy in effect at the time that funding was 

approved in Operation Wide Receiver, as well as a revised policy adopted in 

July 2007, required that investigative reports be recorded in N-Force, we saw 

no provisions in either version of the policy contemplating ongoing, substantive 

monitoring of major case investigations by ATF Headquarters. 

Operation Wide Receiver involved other significant management and 

oversight failures. At a minimum, decisions to implement an investigative 

strategy in which agents declined to interdict firearms to focus on developing 

intelligence and identifying higher-ranking cartel members and the decision to 

forge a “cooperative agreement” with foreign law enforcement officials should 

have been vetted through ATF Headquarters, and then followed by aggressive 

supervision to insure that it actually was working. We found no evidence that 

any such review or supervision occurred. Our review, however, faced serious 

informational limitations due to the age of the case, witnesses’ poor memories, 

and the lack of access to Higman, all of which have hampered our ability to 

identify precisely why and how these failures occurred. Indeed, we have been 

unable to identify the genesis of the investigative tactics used in Operation 

Wide Receiver, or what discussions or approvals, if any, took place at the 

beginning of the case. 

D. Department Leadership Knowledge of Operation Wide Receiver 

With the exception of the lawyers in the Criminal Division who reviewed 

the applications for electronic surveillance, we found no evidence that senior 

leaders in the Department had knowledge of Operation Wide Receiver before 

the Department’s Criminal Division assumed responsibility for prosecuting the 

case in 2009.75

 

75 The April 2010 response of senior leaders in the Criminal Division to the discovery 

that firearms had been allowed to “walk” in Wide Receiver and their failure to make sure that 

ATF did not continue to use improper tactics in firearms trafficking investigations is discussed 

in Chapter Five.

 With regard to the applications for electronic surveillance, 
90 

although a single OEO attorney reviewed all five applications in 2007 and 

drafted a cover memorandum for each application to facilitate review by a 

DAAG in the Criminal Division, and three DAAGs then reviewed and approved 

the applications, we found that neither the OEO attorney nor the DAAGs 

identified any issues or concerns about the handling of the investigation by 

ATF. 

We also determined that former Attorney General Michael Mukasey was 

never made aware that ATF, in connection with Operation Wide Receiver, was 

allowing or had allowed firearms to “walk.” We found that Mukasey was 

briefed on ATF’s attempts to use controlled deliveries – a law enforcement 

technique that witnesses told us differs significantly from “walking” in that it 

involves the delivery of contraband under surveillance or other control by law 

enforcement agents, with arrests and interdictions at the point of transfer – in 

a different ATF firearms trafficking investigation involving a lead subject named 

Fidel Hernandez. While the briefing paper did mention that ATF’s attempts to 

conduct controlled deliveries had been unsuccessful, we found no basis to 

conclude that this briefing put Mukasey on notice of Operation Wide Receiver 

or of “walking” as a tactic employed in ATF investigations. 

1. Authorization for Electronic Surveillance 

Tucson agents drafted affidavits in support of five applications for 

electronic surveillance. The U.S. Attorney’s Office submitted these to OEO to 

obtain authorization from a DAAG to apply for an interception order. An OEO 

attorney reviewed each affidavit for legal sufficiency and necessity and prepared 

a cover memorandum for the reviewing DAAG. The cover memoranda provided 

an overview of the investigation and relevant statutes, the relevant facts 

establishing probable cause, the need for electronic surveillance, and a 

recommendation to sign the authorization to apply for a court order. We found 

no indication that these memoranda caused any of the DAAGs who authorized 

the applications for electronic surveillance to raise questions about the tactics 

used in the investigation. 

As described above, the affidavit in support of the initial application for 

electronic surveillance in Operation Wide Receiver contained information about 

 

 

 

 

 The affidavit in support of the second wiretap application, 

which was authorized on September 25, 2007, included an explicit statement 

that 

 

 While the subsequent affidavits were less explicit, the 

information provided in them nonetheless suggested that ATF had not seized 
91 

firearms. For example, the affidavit for the spinoff application authorized on 

October 11, 2007, stated that 

 

The August 24, 2007, cover memorandum prepared by the OEO attorney 

for the initial application included information from this affidavit to establish 

probable cause. For example, it stated that 

 

 

 

 

 

The cover memoranda for subsequent applications included similar 

information. For example, the memorandum prepared for the first extension of 

electronic surveillance, dated September 25, 2007, stated that 

 

 The 

memorandum for the first spinoff application, dated October 11, 2007, noted 

that 

 

 

While these memoranda were reviewed and approved by different DAAGs 

(see Table 3.1 below), even standing alone they suggested that the subjects 

were repeatedly buying and transporting firearms to Mexico. Read together, 

they suggested 

 

 

 

Table 3.1 

Electronic Surveillance in Operation Wide Receiver

Application Date Authorized DAAG Date of Order

Initial (TT1/TT2) 08/24/07 Barry Sabin

Extension (TT1/TT2) 09/25/07 John Keeney

Spinoff (TT3) 10/11/07 Sigal Mandelker

Extension (TT3) 11/08/07 John Keeney

Spinoff (TT4) 11/15/07 Barry Sabin
92 

We interviewed former DAAG Mandelker, who reviewed and approved the 

October 11, 2007, spinoff application.76

We conclude that the wiretap affidavits in Operation Wide Receiver 

included “red flags” that would have caused a prosecutor who was focused on 

the question of investigative tactics to have questions about ATF’s conduct of 

the investigation. Although there was sufficient information in the applications 

to cause a reader to have questions about the investigative tactics being 

employed by ATF, no one who reviewed them in the Criminal Division at the 

time of the submissions identified any concerns, and therefore there was no 

review of the tactics at that time. However, as described in more detail in 

Chapters Four and Five, we identified possible explanations for the failure to 

recognize these “red flags,” including that the DAAGs focused solely on legal 

sufficiency and reviewed the wiretap applications primarily to determine 

whether the facts established probable cause, that the DAAGs did not review 

the agent’s affidavits and instead relied entirely upon the OEO cover 

memorandum, or the DAAGs believed that a high-level official in the U.S. 

Attorney’s Office had reviewed and approved the application, including the 

investigative tactics referenced in the affidavit. As we explain in greater detail 

in Chapter Seven, we believe that DAAGs have an obligation to conduct a 

review of wiretap applications, including the agent’s affidavit, that is sufficient 

to enable them to form a personal judgment that the application meets the 

statutory criteria. While the OEO cover memorandum serves a useful purpose 

in the review process and can appropriately influence the scope and nature of 

the DAAG’s review of the affidavits themselves, we do not believe it should 

supplant such a review. 

 She told us that generally she relied 

on the cover memorandum when reviewing an application unless something in 

the memorandum caused her to question whether the evidence was sufficient 

to establish probable cause. She said that she would contact OEO and the 

AUSA who filed the application if she had questions about the sufficiency of the 

evidence or saw something in an application that was a problem, but she said 

that generally it was not within her expected role to second guess the way the 

agency was conducting the investigation as long as the affidavits established 

probable cause. When asked about the application in Operation Wide Receiver, 

she said she did not recall the cover memo or the affidavit, nor did she recall 

ever hearing the case name Operation Wide Receiver. 

 

76 Mandelker was the only one of the three Criminal Division DAAGs that we were able 

to interview. We sought to interview Barry Sabin, who reviewed two of the applications in Wide 

Receiver. Sabin told us he would not participate unless we obtained a court order unsealing 

the affidavits so that his attorney could review them and be present during the interview. We 

did not ask the Department to seek such a court order. See 18 U.S.C. § 2518(8)(b). John 

Keeney retired in 2010 after serving 59 years in the Department and died in November 2011.
93 

2. Former Attorney General Mukasey 

We also sought to determine whether former Attorney General Mukasey 

knew about the “gun-walking” tactics used in Operation Wide Receiver. We 

found no evidence that he was made aware of Operation Wide Receiver, or of 

the investigative tactics that were employed by ATF during that investigation. 

We did find that a briefing memorandum was prepared for him in 

November 2007 that contained information concerning unsuccessful attempts 

by ATF to conduct cross-border controlled deliveries of firearms in a case 

involving a subject named Fidel Hernandez. The Hernandez case was 

unrelated to Operation Wide Receiver but was conducted by the Phoenix Field 

Division in 2007. Mukasey told the OIG that he did not recall the briefing 

memorandum, but that he assumed that he had received an oral briefing from 

his staff before a meeting with the Mexican Attorney General in November 

2007. We found no basis to conclude from the circumstances surrounding this 

briefing that Mukasey had knowledge of Operation Wide Receiver or was 

informed about the use of “walking” as a tactic employed in ATF investigations. 

a. Background on the Hernandez Case 

In July 2007, agents in ATF’s Phoenix Division began investigating 

suspected trafficking to Mexico by several individuals buying firearms from a 

Phoenix FFL, including Fidel Hernandez and Carlos Morales-Valenzuela.77

In late September 2007, Phoenix agents learned that Hernandez had 

purchased additional firearms and was heading toward the border. Agents 

contacted the MCO and Mexican law enforcement, planning to have “Mexican 

AFI folks do a traffic stop in Mexico and get a load of guns.” Phoenix agents, 

while on the phone with the MCO personnel and AFI, followed the vehicle 

carrying the firearms and watched it cross the border. Mexican law 

enforcement officials, however, informed MCO personnel that they did not see 

 

Phoenix agents conducted surveillance of firearms purchases and used GPS 

data and information from the FFL to track the subjects. Phoenix agents also 

attempted to coordinate the investigation with Mexican law enforcement 

through the MCO, with the goal of “perfect[ing] an international firearms 

trafficking case culminating with prosecution by the Mexican Attorney 

General’s Office.” 

 

77 Our review did not include a full examination of the Hernandez case. Our 

description of the Hernandez case is based on contemporaneous e-mails and statements from a 

few knowledgeable witnesses. We note that there also have been allegations that “walking” 

occurred in another investigation conducted by ATF’s Phoenix Field Division involving straw 

purchases by Alejandro Medrano, Hernan Ramos, and others, but we also did not include this 

case in our review.
94 

the vehicle cross even though it was “one of a couple of cars crossing the bridge 

southbound.” Former Attaché Davy Aguilera later stated in an e-mail that he 

had learned the operation was compromised by contact with an untrustworthy 

contact in Mexican law enforcement. 

The following week, Phoenix agents learned that the subjects had 

purchased more firearms. They again coordinated with Mexican law 

enforcement to attempt another controlled delivery to Mexico. SAC Newell 

wrote in an e-mail to Carroll, “We are potentially going to give it another shot 

this weekend. . . . They are up to about 250 of the ‘weapons of choice’ so if this 

goes we’ll be able to cement our role as the lead firearms trafficking agency on 

this side of the border[.]” Two days later, Newell stated in an e-mail, “[J]ust got 

notified that the subjects are heading south with another load of guns - right 

now. Davy [Aguilera] is at port of entry on Mexican side.” This second attempt 

at a controlled delivery failed, however, because too many Mexican law 

enforcement officials showed up at the border and the subjects did not cross. 

In late October 2007, ATF Phoenix agents made plans for another 

controlled delivery. The agents worked with ICE to obtain authority from CBP 

for the subjects to “pass through” the POE, as well as assistance with 

surveillance from ICE agents and vetted units in Mexico. This attempt failed 

when a demonstration in Nogales caused the POEs to be shut down and 

created a large traffic jam, leading the subjects to make a U-turn and head 

back to Phoenix. Hernandez and Valenzuela-Morales were arrested by CBP in 

late November 2007 and admitted in post-arrest interviews that virtually all of 

the firearms they purchased were for export to Mexico. 

Despite the failure of these attempts, ATF officials considered the 

Hernandez case to be a significant step toward addressing firearms trafficking 

to Mexico. On November 14, 2007, at the request of Carroll and Hoover, 

Aguilera prepared a memorandum concerning the case “[f]or [the] meeting with 

Mex. Attorney General and U.S. Attorney General.” The memorandum 

summarized the investigation in Hernandez and stated, “[T]his case should be 

of intense interest at DOJ for use in high-level bi-lateral [Senior Law 

Enforcement Plenary] meetings regarding the issue of the U.S.’s response to the 

Government of Mexico’s serious concerns at the highest levels as to our 

commitment [and] ability to disrupt the illegal flow of firearms to Mexico and 

specifically violent Mexican drug trafficking organizations.”
95 

b. Preparation of the Briefing Paper for Mukasey 

Former Attorney General Mukasey was confirmed by the Senate on 

November 8, 2007, and was sworn in the next day.78

Mexico has repeatedly expressed concern regarding the smuggling 

of weapons from the US into Mexico, which the Government of 

Mexico asserts has fueled the violence of Mexican drug cartels . . . . 

In response to these concerns, DOJ’s ATF has committed 

significant resources to address the issue of gun smuggling into 

Mexico . . . . 

 Shortly after becoming 

Attorney General, Mukasey was scheduled to meet with 

 on November 16, 2007. Mukasey’s staff 

prepared a background briefing paper to help prepare him for this meeting, 

addressing efforts to combat cross-border drug trafficking, human smuggling 

and trafficking, money laundering, and arms trafficking. On November 13, 

2007, former Acting DAAG John Roth circulated a draft briefing paper seeking 

comment from officials within the Criminal Division and Department 

components, including Carson Carroll, the Deputy Assistant Director (West) of 

Field Operations at ATF Headquarters. The arms trafficking section of this 

draft included the following language about the attempted controlled deliveries 

in the Hernandez case: 

Of particular importance, ATF has recently worked jointly with 

Mexico on the first-ever attempt to have a controlled delivery of 

weapons being smuggled into Mexico by a major arms trafficker. 

While the first attempts at this controlled delivery have not been 

successful, the investigation is ongoing, and 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. To that end, it is essential that a Mexican vetted unit be 

assigned to work with ATF in this regard. ATF’s attaché in Mexico 

City has briefed on this attempted 

controlled delivery, and stressed the importance of such a vetted 

unit being assigned. 

Carroll reviewed this draft, then stated in an e-mail to then-Assistant 

Director for Field Operations Hoover, “It took a while but I just got through this 

document and I am going to ask DOJ to change ‘first ever.’ In talking with JJ 

[Ballesteros] and Vic [Maldonado], there have [been] cases in the past where we 

have walked guns. I am ok with the rest.” Carroll was not referring to 

 

78 By that date, the investigative activity in Operation Wide Receiver had largely been 

completed, and it was ended entirely in early December 2007.
96 

Operation Wide Receiver when he mentioned “past cases,” as he explained in 

an e-mail to Roth and Bruce Swartz, a DAAG in the Criminal Division, on 

November 15. In that e-mail, Carroll suggested they change “first ever” to 

“recent initiative,” because “[A]gents here in this conference . . . who have been 

with ATF 30 years, say they can remember a couple of attempts of a controlled 

delivery back in the early 80’s.” Roth and Swartz revised the briefing paper 

and circulated a final version on November 16, 2007. The arms trafficking 

section of the final briefing paper stated, “Of particular importance, ATF has 

recently worked jointly with Mexico on the first attempt in more than 20 years 

to have a controlled delivery of weapons being smuggled into Mexico by a major 

arms trafficker.” 

Mukasey told us that this meeting with was his first foreign 

contact as the Attorney General, and that his focus was on maintaining the 

close cooperation with Mexico forged by his predecessor. He told the OIG that 

he did not recall the briefing paper because his staff likely briefed him orally 

before the meeting with . He said he recalled discussing with his 

staff or with expanding the use of e-Trace and the need for vetted 

law enforcement in Mexico, but did not recall discussing ATF’s attempts to use 

controlled deliveries or coordinate enforcement operations with Mexico. 

Mukasey also told us he had no knowledge of specific firearms cases, 

including Operation Wide Receiver or the Hernandez case. 

The DAAGs involved in preparing the briefing paper, John Roth and 

Bruce Swartz, told us that they did not recall discussions about attempted 

controlled deliveries or specific firearms trafficking cases with the Attorney 

General, ATF, or members of the Attorney General’s staff. Former Acting 

Deputy Attorney General Craig Morford similarly told us that he did not recall 

discussion of controlled deliveries. We have found no evidence to the contrary. 

c. Implications of the November 2007 Briefing 

We also considered whether the reference to attempted controlled 

deliveries in the November 16, 2007, briefing paper put Attorney General 

Mukasey or others in his office on notice of “gun-walking.” We conclude that it 

did not. 

Although several ATF e-mails used the terms “controlled delivery” and 

“walk” interchangeably, numerous witnesses told us that these terms refer to 

different techniques. Mukasey, for example, told us that a controlled delivery 

occurs where contraband is delivered by an undercover agent or a cooperating 

courier surrounded by law enforcement, with arrests made as soon as the 

delivery is completed. Although Mukasey said he did not recall ATF’s attempts 

to use cross-border controlled deliveries to Mexico, he said he assumed that 

they would not have relied only on Mexican law enforcement and would have 

had someone from DEA or ATF in Mexico to ensure control of the delivery. He 
97 

told the OIG that “walking” was not a term that he had heard or used in his 

time as a prosecutor, and that an uncontrolled transfer of firearms was an 

unacceptable tactic because of the public safety risks. Morford similarly told 

us that the sentence in the briefing paper about attempted controlled deliveries 

was not something that would have “jumped out at [him] at the time” because, 

among other reasons, the reference to a “controlled delivery” would have 

conveyed that agents were following the transaction and interdicting the 

firearms at the point of delivery. 

Attorney General Holder testified before the House Judiciary Committee 

on June 7, 2012, that former Attorney General Mukasey was briefed on the 

transmission of guns to Mexico and “did far less than what I did.” On June 12, 

2012, Attorney General Holder testified before the Senate Judiciary Committee, 

stating, “An [A]ttorney [G]eneral who I suppose you would hold in higher regard 

was briefed on these kinds of tactics in an operation called Wide Receiver and 

did nothing to stop them -- nothing. Three hundred guns, at least, walked in 

that instance.”79

Swartz, who remains a DAAG in the Criminal Division and now also 

serves as Counselor for International Affairs, told us that it was important to 

consider ATF’s attempts to conduct cross-border controlled deliveries in the 

context of the “unprecedented cooperation” between the United States and 

 We interviewed Attorney General Holder to understand the 

basis for his testimony. Holder told us that while preparing for his 

Congressional testimony, he was told that Mukasey had been briefed on the 

fact that guns were not properly followed in the Hernandez case. Holder 

acknowledged that the briefing referred to controlled deliveries, and that 

“gunwalking . . . is the antithesis of controlled deliveries,” in that controlled 

deliveries assume the use of an undercover agent to deliver the firearms, or the 

ability to maintain visual or mechanical surveillance of them. He explained 

that he believed it was not the reference to “controlled deliveries” in the briefing 

paper that should have concerned Mukasey, but rather that the attempts had 

failed, and that “that failure resulted in whatever the number of hundred guns 

getting out.” The briefing paper, however, contained no mention of the number 

of firearms involved in the attempted controlled deliveries. 

 

79 Following this testimony, Senator Charles Grassley sent a letter to Holder 

challenging the Department to produce evidence that Mukasey was briefed on Wide Receiver. 

In response to this letter, the Department indicated that Holder’s statement that the November 

16, 2007, briefing pertained to Wide Receiver was “inadvertent” and that the reference in the 

briefing paper was to the Hernandez case. The letter also included excerpts from several emails suggesting that ATF had not interdicted firearms in the Hernandez case, including one 

stating, “ATF agents attempted to coordinate with Mexican authorities through ATF attache’s 

[sic] to apprehend the subjects [including Hernandez] in Mexico. The attempts were 

unsuccessful. Case agents believe the subjects are continuing to traffick [sic] firearms to 

Mexico.”
98 

Mexico in 2007. In March 2007, former President George Bush met with 

Mexican President Felipe Calderon in Merida, Mexico, and issued a joint 

communiqué committing to increased bilateral cooperation to “target criminal 

organizations, fight firearms trafficking, which fuels the violence of criminal 

organizations, as well as drug trafficking . . . and illicit financial activities.” As 

part of efforts to improve cooperation, Mexico significantly increased 

extraditions and worked with the United States on a number of cross-border 

initiatives, including joint prosecutions to allow law enforcement officials to 

take advantage of more stringent sentences in Mexico. Swartz told us that 

firearms trafficking from the United States and the resulting gun violence in 

Mexico was the overriding concern of Mexican officials, and that Mexican 

officials were very interested in whatever collaborative steps could be taken to 

address it. Given this concern, he said that would have 

considered the idea of controlled deliveries to be a positive development. While 

Swartz said that he would not have investigated why attempts to conduct 

controlled deliveries did not succeed, he said that the reference in the briefing 

paper to the lack of success would have concerned him in that it reflected the 

need for vetted units in Mexico to intercept the firearms and suggested that 

there was more to be done before it could be a workable approach. 

Documents reviewed by the OIG show that Mexico’s concerns about 

cross-border firearms trafficking continued during Attorney General Holder’s 

tenure. The background briefing paper prepared for Holder’s April 2009 

meeting with Mexican President Calderon and other Mexican officials in 

Cuernavaca, Mexico, stated, “During the last few months an emphasis on 

increased cooperation on weapons trafficking into Mexico has emerged as a 

central area of concern for both countries. Weapons smuggled from the United 

States are widely believed to be fueling the violence among warring drug 

cartels.” 

At the Cuernavaca meeting, Holder and DHS Secretary Napolitano 

committed to forming a working group to study steps the United States could 

take to curb illegal firearms trafficking to Mexico. Led by the Department’s 

Criminal Division, a working group was subsequently created to review and 

assess enforcement, strategy, training, and resources and to make 

recommendations to reduce firearms trafficking. Separately, during a joint 

press conference with President Calderon in April 2009, President Barack 

Obama asked Attorney General Holder to review firearms enforcement efforts, 

resulting in creation of a second working group to assess how existing firearms 

law were being used by prosecutors. 

As part of these efforts to address concerns about firearms trafficking, 

senior leaders in the Department’s Criminal Division advocated exploring the 

possibility of using cross-border controlled deliveries to address firearms 

trafficking. An August 2009 memorandum from AAG Breuer to Holder 

recommended engaging in high-level talks with Mexican authorities about the 
99 

possibility of conducting cross-border controlled deliveries of firearms that had 

been seized during southbound interceptions. On February 4, 2011, during a 

meeting with Mexican law enforcement, Breuer “suggested allowing straw 

purchasers [to] cross into Mexico so [Secretariat of Public Security] can arrest 

and PGR can prosecute and convict.” 

When asked about the view of controlled deliveries reflected in these and 

other documents, Weinstein stated, “I think our view was that... controlled 

deliveries are a time honored law enforcement technique. They’re infinitely 

harder when you’re doing them and international borders are involved, but 

they’re still, if you do it right, they still can be a useful technique.” Breuer told 

us that his February 4, 2011, statement during the meeting with Mexican 

officials was a preliminary suggestion and that the decision was made not to 

pursue it after Anthony Garcia, the Department’s Attaché in Mexico City, 

expressed concerns about such an approach. Attorney General Holder told us 

that he did not recall discussions with Breuer about conducting controlled 

deliveries, but that “the career folks shot down the idea” when Breuer raised it. 

Attorney General Holder changed Department policy in March 2011 to 

require interdiction of firearms in the United States. At Holder’s direction, 

Deputy Attorney General James Cole issued a directive that tactics allowing 

firearms to cross the border violated Department policy and would not be 

tolerated. On March 9, 2011, Cole held a conference call with the Southwest 

Border U.S. Attorneys and sent an e-mail to them stating, “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.” This 

prohibition includes controlled deliveries coordinated with vetted Mexican law 

enforcement. Holder told us that given the history of unsuccessful attempts, 

he does not view controlled deliveries as something worth trying. 

VIII. Conclusion 

During both parts of Operation Wide Receiver, ATF’s Tucson II group, led 

by Higman, pursued an investigative strategy that affirmatively authorized 

illegal firearms sales to be made to straw purchasers and then declined to 

arrest the straw purchasers or to interdict and seize weapons despite ample 

evidence that the purchases were illegal. Evidence of illegality included the use 

of heat-sealed bundles of cash to purchase large quantities of firearms, open 

acknowledgement by the subjects that they were purchasing firearms for 

others, and statements made by the subjects to the FFL that the firearms 

would be converted to fully automatic weapons or transported to Mexico. 

Instead, ATF allowed the purchases to continue and conducted surveillance of 

the buyers and load vehicles, with the goal of identifying stash houses, 
100 

trafficking routes, and other participants in the conspiracies. ATF Tucson and 

the ATF Phoenix Field Division gave little to no consideration of the public 

safety repercussions of allowing firearms to be sold at the direction of the 

government that were intended for use in Mexico by suspected drug cartel 

members. This represented an extraordinarily serious failure that resulted in 

serious harm to the public, both in the United States and Mexico. 

During Operation Wide Receiver II, ATF attempted to coordinate several 

operations with Mexican law enforcement, intending to hand over surveillance 

of suspects and target vehicles to Mexican law enforcement in an attempt to 

identify the ultimate recipients of the firearms. These attempts were ultimately 

unsuccessful, in large part because the ATF agents were unable to maintain 

surveillance of the suspects to the border. However, even if the ATF agents had 

been able to conduct surveillance to the border, this would not have resulted in 

seizures and arrests, as agents made clear that their priority was not “a photo 

op seizure at the border” but in having the “shipment taken all the way to its 

destination and exploited on all levels . . . for intelligence and reportable 

criminal activity.” 

We found no evidence that ATF’s seriously flawed investigative strategy 

and tactics were based on a refusal by the U.S. Attorney’s Office to authorize 

seizures of firearms, arrests of straw purchasers, or a heightened evidentiary 

standard for prosecuting firearms cases. Indeed, in the one instance we 

discovered where ATF asked a prosecutor during the investigative phase of the 

case whether there was sufficient evidence to support charges against a 

subject, ATF later made the arrest. Moreover, the evidence suggests that, other 

than on one occasion involving the request to facilitate the sale of illegal shortbarreled rifles, the AUSAs assigned to the case knew of and acquiesced in 

ATF’s strategy during the investigation, albeit with the apparent understanding 

that Mexican law enforcement was somehow involved. The decision by ATF to 

conduct surveillance of the firearms purchases rather than to interdict and 

seize or arrest thus was based on the desire to target higher-ranking members 

of the firearms trafficking conspiracy, not on a lack of legal authority to do so. 

We further concluded that despite the complexity of the investigation, 

attorneys and supervisors in the Tucson U.S. Attorney’s Office afforded 

insufficient attention to the case, missing opportunities to raise questions or to 

minimize the risk posed by ATF’s investigative tactics. 

We also determined that ATF Headquarters did not know during the 

investigation that Tucson had failed to interdict firearms. The ability of a single 

field office to conduct an investigation with international consequences 

illustrates the shortcomings of ATF’s case initiation and monitoring processes. 

At a minimum, the tactics used in Operation Wide Receiver and the 

development of a “cooperative agreement” with Mexican law enforcement 

should have been vetted and approved by ATF Headquarters. 
101 

We also found that, with the exception of the DAAGs in the Criminal 

Division who reviewed the wiretap applications, senior Department leaders had 

no knowledge of Operation Wide Receiver before the Criminal Division assumed 

responsibility for prosecuting the case in late 2009. With regard to the three 

DAAGs in the Criminal Division who reviewed and approved the five wiretap 

applications, we found no evidence that any of them observed any “red flags” in 

the agent’s affidavits regarding the investigative tactics being used by ATF. 

That was likely due, we found, to one or more of the following reasons: a focus 

on the legal sufficiency of the request rather than the underlying investigative 

tactics; a failure to read the affidavits and instead rely solely on the OEO 

summary memorandum; or a belief that a high-level official in the U.S. 

Attorney’s Office had reviewed and approved the application, including any 

investigative tactics referenced in the agent’s affidavit. Finally, we concluded 

that former Attorney General Mukasey was not briefed about Operation Wide 

Receiver or gun “walking,” but on a different and traditional law enforcement 

tactic that was employed in a different case.
102 

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103 

CHAPTER FOUR

OPERATION FAST AND FURIOUS

I. Introduction 

In this Chapter we describe ATF’s firearms trafficking investigation 

known as Operation Fast and Furious, and the operational and oversight roles 

played by the ATF Phoenix Field Division and the U.S. Attorney’s Office for the 

District of Arizona.80

The consequences of adhering to this strategy for several months without 

modification were extraordinary. During the course of the investigation, 

Operation Fast and Furious subjects were responsible for purchasing nearly 

2,000 firearms for $1.5 million, hundreds of which were recovered in the 

United States and Mexico. The vast majority of these purchases were made by 

individuals after ATF agents had identified them as suspects. Yet there were 

no arrests or indictments in the case until it was learned that two weapons 

found at the scene of Customs and Border Protection Agent Brian Terry’s 

December 14, 2010, murder had been purchased by an Operation Fast and 

Furious subject who agents had identified in November 2009, and who had 

bought the two guns found at scene in January 2010. For the reasons 

described in this chapter, we concluded that the individuals at ATF and the 

U.S. Attorney’s Office responsible for Operation Fast and Furious failed to 

conduct the investigation with the urgency, oversight, and attention to public 

safety that was required by an investigation that involved such extraordinary 

and consequential firearms trafficking activity. 

 The investigation began at the end of October 2009 when 

agents obtained information about some suspicious firearms purchases made 

from a Phoenix-area Federal Firearms Licensee (FFL). By the end of the year, 

agents had identified a significant firearms trafficking group operating in the 

Phoenix area that was responsible for the purchase of over 600 firearms for 

approximately $350,000. However, for reasons described in this Chapter, ATF 

and the U.S. Attorney’s Office agreed on a longer term investigative strategy 

that broke from the traditional approach of confronting suspected straw 

purchasers. Instead, the offices deferred taking action against the subjects 

who had been identified in order to pursue a larger case, primarily through the 

use of several wiretaps, that sought to dismantle the entire trafficking group 

and identify how the firearms were being paid for and transported to Mexico. 

 

80 In Chapter Five we discuss the roles of ATF Headquarters and Department 

leadership in connection with the investigation.
104 

II. Methodology 

To conduct this review, we examined the reports of investigation, grand 

jury material, and other documents from the ATF’s investigative file, as well as 

materials from the U.S. Attorney’s Office, including the nine applications and 

court orders to conduct electronic surveillance. In addition, we reviewed 

thousands of e-mail communications of individuals in Phoenix directly involved 

in the conduct and management of the case. We also obtained relevant 

documents from other agencies, including the DEA, FBI, and ICE. 

We interviewed over 75 witnesses as part of the Operation Fast and 

Furious review. These included the ATF agents and supervisors responsible for 

the investigation and their chain of command within ATF’s Phoenix Field 

Division, as well as several agents who were assigned to work on the 

investigation at various times and agents assigned to other ATF field offices 

who had information relevant to our review. We also interviewed the 

prosecutor at the U.S. Attorney’s Office who was responsible for the case and 

his management, including the former U.S. Attorney and Criminal Chief. In 

addition, we interviewed personnel at the DEA, FBI, and ICE who possessed 

relevant information, and the owners of two FFLs who voluntarily provided 

substantial assistance to ATF during the investigation. 

There were several witnesses we were unable to interview. The ICE agent 

who was assigned to Operation Fast and Furious on a full time basis declined 

our request for a voluntary interview. Darren Gil, the former ATF Attaché to 

Mexico who retired from the agency in December 2010, declined through 

counsel our request for a voluntary interview. We also sought to interview 

Kevin O’Reilly, an official with the White House National Security Staff, about 

communications he had in 2010 with Special Agent in Charge William Newell 

that included information about Operation Fast and Furious. O’Reilly declined 

through his personal counsel our request for an interview.81

 

81 We sought to interview O’Reilly in light of e-mail communications he had with 

Special Agent in Charge Bill Newell in 2010. Newell told us that he had known O’Reilly during 

previous field office assignments and that the two shared information about firearms trafficking 

issues relevant to their geographic areas of responsibility. According to Newell, O’Reilly was 

also friends with ATF’s White House Liaison and through that relationship O’Reilly would be 

included on some information sharing between Newell and the ATF Liaison about ATF’s efforts 

on the Southwest Border, and that O’Reilly eventually communicated with Newell directly. 

Newell told us that he did not have direct contact with the White House other than through 

O’Reilly. We requested from the White House any communications concerning Operation Fast 

and Furious during the relevant time period that were sent to or received from (a) certain ATF 

employees, including Special Agent in Charge Newell, and (b) certain members of the White 

House National Security Staff, including Kevin O’Reilly. In response to our request, the White 

House informed us that the only responsive communications it had with the ATF employees 

were those between Newell and O’Reilly. The White House indicated that it previously 

(Cont’d.)
105 

III. Organization of this Chapter 

The Chapter is organized into four sections. We describe in Section IV 

the period from October 2009 to the end of January 2010, which includes the 

initiation and early investigation of the case. We describe the facts and 

circumstances that caused agents to open the case and within weeks identify a 

major firearms trafficking group that was using straw purchasers to buy large 

quantities of firearms for transport to Mexico. We further describe instances 

where the government had advance notice, and on occasion surveilled, firearms 

purchases by subjects of the investigation, and the government’s decision to 

not interdict those firearms. We also describe in this section the substantial 

cooperation ATF requested and received from an FFL and the ATF’s early 

interaction with the Drug Enforcement Administration (DEA) and Immigration 

and Customs Enforcement (ICE). In addition, we describe the government’s 

decision to pursue court-authorized electronic surveillance to develop the 

investigation. 

Section V covers the conduct of the investigation during the period from 

February to July 2010. In this section, we describe the proposal and approval 

to designate Operation Fast and Furious an Organized Crime and Drug 

Enforcement Task Force (OCDETF) case, as well as the initiation of the use of 

electronic surveillance to further the investigation. We also describe the 

continuing purchasing activity of the subjects of the investigation and the 

circumstances under which ATF did and did not seize firearms. This section 

also highlights several significant matters in the case, including concerns some 

agents had with the conduct of the investigation, the drafting of an exit strategy 

in April 2010, two contacts the main subject of the investigation had with law 

enforcement, and concerns expressed to ATF by another FFL about its 

cooperation in the investigation. 

Section VI covers the period from August 2010 to January 2011, which 

ATF considered the end of the operational phase of the investigation and the 

movement of the case towards indictment. This section describes some of the 

investigative activity ATF conducted during this period and the U.S. Attorney’s 

 

produced those communications to Congress in response to a similar request, and the White 

House provided us with a copy of those materials. The White House did not produce to us any 

internal White House communications, noting that “the White House is beyond the purview of 

the Inspector General’s Office, which has jurisdiction over Department of Justice programs and 

personnel.” The records the White House produced did not contain any communications 

between Newell and O’Reilly that referred to Operation Fast and Furious by name, and the 

communications that referred to the “large OCDETF case” – which was Operation Fast and 

Furious – did not include any information about the case strategy or the tactics agents were 

using to conduct the investigation. We were unable to further investigate the communications 

between Newell and O’Reilly because O’Reilly declined our request for an interview.
106 

Office’s efforts to indict the case. This section also describes the actions ATF 

and the U.S. Attorney’s Office took in response to learning that two firearms 

purchased by a subject in Operation Fast and Furious were recovered at the 

scene of the December 14, 2010, shooting death of Customs and Border Patrol 

Agent Brian Terry. In addition, we describe the United States Attorney’s 

Office’s decision to indict on January 19, 2011, the purchaser of these firearms 

and other subjects identified during the course of Operation Fast and Furious. 

Section VII provides the Office of the Inspector General’s (OIG) analysis of 

key aspects of the conduct of Operation Fast and Furious, including decisions 

by ATF and the U.S. Attorney’s Office that set the strategy for the case, the 

issue of whether and when there was probable cause to seize firearms, and 

ATF’s use of cooperating FFLs to advance the investigation. We also assess the 

consequences of using court-ordered electronic surveillance and the time it 

took the government to obtain indictments of Operation Fast and Furious 

subjects. 

IV. Inception and Early Investigation (October 2009 – February 2010) 

A. ATF Establishes a New Firearms Trafficking Enforcement 

Group in October 2009 

Operation Fast and Furious was an investigation in ATF’s Phoenix Field 

Division conducted by “Group VII,” one of four criminal enforcement groups in 

the office, which was responsible for firearms trafficking investigations with a 

nexus to Mexico. We summarize below how the group was created and initially 

staffed. 

William Newell began his tenure as Special Agent in Charge (SAC) of the 

Phoenix Field Division in June 2006. Newell told the OIG that he was struck 

during his early briefings with ATF personnel by the acute challenge the field 

office faced in combating, with limited personnel, the problem of firearms 

trafficking to Mexico and California. Newell estimated that the office’s territory 

– which at that time comprised 5 states – had a total of 17 agents distributed 

across 5 groups, 3 of which were enforcement groups responsible for firearms 

trafficking as well as other criminal investigations. 

Newell told us that one of his primary responsibilities was to implement 

Project Gunrunner, ATF’s national initiative to combat firearms trafficking 

along the Southwest Border. Newell said that in early 2008, he and a 

supervisor in the office discussed ideas for addressing firearms trafficking 

along the Southwest Border. In February 2008, the supervisor drafted a paper 

entitled, “Border Firearms Interdiction Strike Team – a strategy to target and 

reduce border related firearms violence.” The proposal envisioned creating an 

investigative team drawn from multiple federal and state law enforcement 

components. 
107 

In April 2008, Newell submitted a request to ATF Headquarters to open a 

new firearms trafficking group. At about the same time the SAC for the Drug 

Enforcement Administration’s (DEA) Phoenix Office established an OCDETF 

Strike Force in Arizona to address the threat posed by the Sinaloa drug cartel 

and Arizona-based traffickers associated with the cartel. Newell’s April 

proposal envisioned locating the group within the proposed OCDETF Strike 

Force, which was established in August 2008. 

In April 2009, approximately eight months after the Phoenix OCDETF 

Strike Force was established, the Department issued a memorandum entitled 

“Guidelines for Consideration of OCDETF Designation for Firearms Trafficking 

Cases Related to Mexican Drug Cartels.” The memorandum was written “to 

emphasize the important role that the OCDETF Program must continue to play 

with the United States’ government-wide effort to stem the southbound 

smuggling of arms to Mexican drug trafficking organizations.” To this end, the 

memorandum stated that “investigations principally targeting firearms 

trafficking, rather than the underlying drug trafficking,” are eligible for 

OCDETF designation if there is a sufficient nexus to a Mexican cartel. 

This memorandum was issued at about the same time that ATF received 

additional funding, which allowed Newell to establish Group VII in October 

2009. Special Agent Hope MacAllister, then assigned to Group I, served as the 

Acting Group Supervisor of Group VII until Special Agent David Voth, who had 

been named Group Supervisor, relocated to Phoenix from ATF’s Minnesota 

office. MacAllister had been an agent for 10 years in the Phoenix Field Division 

and had significant experience working on firearms trafficking investigations. 

Newell told us that he selected MacAllister for the position of Acting Group 

Supervisor based on her experience and his high regard for her performance as 

an agent since he became SAC. 

MacAllister was joined on Group VII by Special Agents Tonya English and 

Jose Medina. English had graduated from ATF’s training academy in March 

2008. Her first assignment was to the Phoenix Field Division, where she 

received on-the-job training for approximately six months by several “training 

agents” including MacAllister. Medina was a probationary agent who had 

graduated from ATF’s training academy in October 2009, been assigned to the 

Phoenix Field Division, and begun his on-the-job training with MacAllister. 

We asked Newell about the decision to initially staff Group VII with such 

inexperienced agents. Newell said that the office anticipated receiving a 

permanent group supervisor for Group VII within two to three months, as well 

as additional experienced agents through a national announcement seeking 

voluntary transfers to the group. Newell also told us that he moved English to 

Group VII from another enforcement group – Group I – that itself had only six 

agents. 
108 

Special Agent David Voth was selected as supervisor for Group VII in 

August 2009 and reported to the Phoenix Field Division on December 6. At the 

time of his selection, Voth was assigned to ATF’s St. Paul, Minnesota Field 

Office, where he had worked since transferring to the ATF from the United 

States Marshal’s Service (USMS) in 2001. In the months prior to reporting to 

the Phoenix Field Division, Voth attended multiple Southwest Border 

conferences, two of which were also attended by Newell and George Gillett, the 

Assistant Special Agent in Charge (ASAC) in the Phoenix Field Division who 

oversaw Group VII. Voth said that he, Newell, and Gillett had multiple 

conversations during the conferences about investigating firearms trafficking in 

the Phoenix area and the limited success they felt that the office was having in 

persuading the U.S. Attorney’s Office to bring criminal charges, and in 

obtaining convictions, in such cases. According to Voth, his conversations with 

Newell and Gillett and his reading of relevant DOJ and ATF gun trafficking 

memoranda signaled that Group VII’s mission was to dismantle firearms 

trafficking organizations. 

B. U.S. Attorney’s Office Reorganizes Firearms Trafficking 

Responsibilities 

Dennis Burke was confirmed as the U.S. Attorney for the District of 

Arizona in September 2009 and officially arrived in the office on September 17. 

Burke had previously served in several federal and state positions, including 

with the United States Senate Judiciary Committee, the Department of Justice, 

the Arizona Attorney General’s Office, and the Department of Homeland 

Security. Burke also served for two years as an Assistant U.S. Attorney in the 

District of Arizona. 

Burke told us that when he began as the U.S. Attorney, he requested a 

comprehensive review of the structure and organization of the office. He made 

several changes as a result of this review, including expanding the office’s 

National Security Section to include border security and immigration matters, 

as well as firearms violence and southbound gun smuggling. The expanded 

section was headed by Michael Morrissey. Burke also created two new senior 

positions in the section to provide policy and trial guidance. Emory Hurley, the 

prosecutor who would be assigned to Operation Fast and Furious, filled one of 

the two positions as Senior Advisor and Trial Attorney for Firearms. Hurley 

had been prosecuting firearms cases since approximately 2002. 

Burke brought Patrick Cunningham to the office to serve as the Chief of 

the Criminal Division. Burke had previously worked with Cunningham at the 

Arizona Attorney General’s office, where Cunningham served as Chief Counsel 

to several divisions. Cunningham also had previously served as an Assistant 

U.S. Attorney in the District of Arizona for several years. Cunningham 

assumed his duties as Criminal Chief in January 2010. 
109 

C. ATF Group VII Identifies a Firearms Trafficking Organization 

and Initiates Operation Fast and Furious in November 2009 

Since as early as 2001, the owner of a Phoenix area gun store, which we 

refer to in this report as FFL1, had voluntarily provided ATF with copies of 

Form 4473s reflecting completed sales of firearms that the owner of FFL1 

considered suspicious based on the circumstances of the sales, such as the 

types and number of weapons purchased and payments made in cash.82 

Beginning on October 31, 2009, MacAllister received information from the 

owner of FFL1 about recent sales of a total of 19 AK-47 style rifles to four 

young men – Jacob Chambers, 

Several days later, on November 4, 2009, an ATF agent reviewed a Form 4473 

provided by FFL1 documenting a November 2 purchase of 6 identical AK-47 

style rifles by an individual named Uriel Patino. The agents also learned on 

November 4 that Patino had purchased two FN Herstal 5.7 caliber pistols from 

FFL1 on November 1 and four identical pistols from another FFL on November 

2.83

Over the next three weeks, Group VII’s three agents conducted 

preliminary background checks on the purchasers through multiple federal 

and state databases, gathered additional Form 4473s from FFL1 and other 

Phoenix-area FFLs to identify previous purchases by these individuals, and 

conducted several surveillances. By November 18, the agents had established 

sufficient connections between the individuals – for example, and 

listed the same residence on their Arizona drivers’ licenses, a residence owned 

by – to join them together under a single investigation that would 

eventually be referred to as Operation Fast and Furious.84

 

82 As discussed in Chapter Two, the only federal reporting requirement FFLs had at 

this time with respect to firearms sales was of multiple sales of handguns to the same 

individual within a 5-day period. FFLs were not required to report multiple sales of long guns 

to ATF until July 2011.

 MacAllister opened 

the investigation under her authority as an ATF special agent. As described in 

Chapter Two, ATF agents are authorized to open a criminal investigation when 

83 According to ATF documents, the FN Herstal 5.7 caliber pistol is referred to as a “cop 

killer” in Mexico because of the reputed ability of rounds fired from the gun to pierce Kevlar 

vests worn by law enforcement. After AK-47 style rifles, FN pistols were the most commonly 

purchased firearm by subjects in Operation Fast and Furious.

84 The investigation of the first four individuals was initially named “Chambers, Jacob, 

et al.” The investigation of Patino was initially opened as a separate matter. The merged 

investigation carried the Chambers case name, but was also referred to as “the Fast and the 

Furious” no later than February 2010 when agents learned that subjects of the investigation 

were members of a car club and ATF received approval to conduct the case as an OCDETF 

investigation. We refer to the Chambers investigation as “Operation Fast and Furious” for 

purposes of this report.
110 

the agent “plans to devote time and resources associated with a full criminal 

investigation.” ATF investigative policies also provide that “[d]ivision 

management will ensure regular communication with the first line supervisors 

regarding ongoing investigations. Particular attention should be focused on 

those investigations considered sensitive or complex.”85

The firearms purchasing activity identified by Group VII by the middle of 

November 2009 was dramatic. According to ATF investigative reports and 

Form 4473s that ATF obtained from FFL1, between September 22, 2009, and 

November 14, 2009, Chambers, bought a total of 75 

AK-47 style rifles, while Patino purchased 38 firearms between October 30, 

2009, and November 6, 2009, from FFL1 and other FFLs. By the end of 

November, Chambers had purchased an additional 27 firearms from FFL1 and 

Patino had purchased an additional 39 from FFL1 and another FFL. According 

to ATF records, these five individuals’ firearms purchases in the month of 

November cost approximately $86,000. 

The number of individuals involved in what Group VII believed was 

related purchasing activity also grew quickly. For example, the owner of FFL1 

sent ATF, by facsimile, the Form 4473 for a November 6, 2009, purchase of six 

firearms by an individual named Joshua Moore. When Group VII agents 

visited FFL1 on November 10, 2009, to obtain copies of additional Form 4473s 

for Patino, Chambers, , they observed an individual 

who would later be identified as Moore purchase 10 AK-47 style firearms. 

Within the week, Group VII learned that Moore and Patino had been seen 

together on at least two occasions attempting to purchase firearms at a 

Prescott, Arizona FFL. By the end of November, Moore had purchased a total 

of 67 AK-47 style rifles – 45 of these from FFL1 – for approximately $32,000. 

In November, ATF also identified a subject named Jaime Avila, whose 

purchases in January 2010 were recovered on December 14, 2010, at the 

scene of the fatal shooting of Border Patrol Agent Brian Terry. On November 

24, 2009, FFL1 provided Group VII information about purchases being made 

by Patino and Avila. The purchases were made at different times of the day, 

 

85 Investigative reports generated in an investigation must be reviewed and approved by 

a supervisor. ATF guidelines provide that the Special Agent in Charge is authorized to delegate 

the approval of reports to a Group Supervisor. However, this authority cannot be delegated to 

an Acting Group Supervisor or to a Group Supervisor during his probationary period. ATF 

policy provides for a 1-year probationary period for an employee appointed to a supervisory 

position. MacAllister approved several reports of investigation in her capacity as the Acting 

Group Supervisor for Group VII, and Voth approved the reports after he arrived in Phoenix on 

December 6, 2009, and during the course of the investigation. MacAllister’s approvals while 

she was Acting Group Supervisor and Voth’s approvals during his probationary period did not 

appear to be in compliance with ATF policy.
111 

but Patino and Avila were together at the store for each transaction. Patino 

purchased five AK-47 style rifles for approximately $3,000, and Avila 

purchased five FN Herstals for approximately $5,400. Two ATF agents 

conducted surveillance on November 24 after Avila’s purchase and saw Patino 

and Avila travel in the same vehicle. Avila was entered as a suspect into ATF’s 

case management system the next day.86

Background checks conducted in November 2009 established that the 

subjects Group VII had identified did not have criminal histories. The agents 

further determined that the subjects were paying cash for the firearms 

purchases but did not have identifiable sources of income to support their 

buying activity.87

Surveillance conducted during November identified what Group VII 

believed were two “stash houses” for the firearms being purchased.

 In addition, review of the Form 4473s established that for 

each of the sales completed with these subjects, the buyer certified he was the 

actual purchaser of the firearm, as required by law. 

88 The first 

was a Phoenix residence owned by an individual named Manuel Celis-Acosta, 

whom agents would soon identify as the primary target of their investigation. 

The second was American Autobody, an automotive shop located in Phoenix 

and owned by Hector Carlon. Several witnesses told us that the second 

location created an acute challenge for agents conducting surveillance because 

they could not observe activity – such as transfers of firearms – within the 

shop’s garage or on its fenced-in parking lot and therefore could not make 

informed judgments about which, if any, vehicles to follow when they left the 

auto body shop.89

 

86 Agents also identified a subject named Dejan Hercegovac, who purchased 25 AK-47 

style rifles from FFL1 during three separate transactions on November 25, 2009. During the 

third transaction, Hercegovac traded some previously-purchased rifles with side-folding stocks 

for rifles with under-folding stocks. After completing this trade, an employee of FFL1 realized 

that one of the returned rifles had been purchased by Patino the previous day, November 24. 

The owner of FFL1 contacted MacAllister on November 27 with this information, and ATF 

received the firearm from the FFL1 as evidence of Hercegovac’s association with Patino. In light 

of the fact this incident did not result in a firearm being taken from a subject nor reduce the 

number of Operation Fast and Furious-related firearms being trafficked, we did not credit it as 

a seizure.

87 For example, records checks with the Arizona Department of Economic Security 

(DES) showed that Moore had no reported employment income or wages in the first quarter of 

2009, and Patino had no reported employment income or wages as of the third quarter of 2009.

88 Officers from the Phoenix Police Department assisted Group VII with surveillance in 

Operation Fast and Furious.

89 Agents who conducted surveillance during the investigation told us that the driving 

behavior of the subjects under surveillance also contributed to the difficulty of surveillance in 

and after November. At times, the witnesses said, the subjects operated the cars at erratic 

(Cont’d.)
112 

Group VII also learned in November 2009 that some of the firearms 

purchased by subjects of the investigation had been recovered in Mexico. For 

example, on November 20, 2009, Mexican soldiers stopped a truck in Naco, 

Sonora, a city on the border about 220 miles southeast of Phoenix, and seized 

42 guns and a significant amount of ammunition. The seizure included 

firearms purchased by three individuals already identified by Group VII, 

including 19 bought by Patino and on November 6 and 14, 2009, within 

two weeks of being recovered in Mexico. Additional tracing revealed that most 

of the other seized firearms had been purchased from Phoenix-area FFLs in 

November by nine individuals not previously identified by Group VII. Agents 

from ICE interviewed the driver of the truck, who reportedly claimed to have 

been “set up” by Mexican customs officials and refused to cooperate. 

Photo 4.1: Naco, Sonora Recovery 

Source: ATF

SAC Newell sent an e-mail to U.S. Attorney Burke on November 24, 

2009, informing him of this seizure. The following day, Newell sent a follow-up 

e-mail to Burke and Assistant U.S. Attorney Hurley to alert them that some of 

the firearms had been purchased by subjects in a case assigned to MacAllister. 

The e-mail also stated that “[w]e are advising ICE to stand down on their 

current practice activity in Arizona in order not to compromise our case.” 

 

rates of speed (alternating between extremely fast and slow), weaved in and out of traffic, 

frequently reversed course, and regularly made excessive turns through neighborhoods. 

Multiple agents likened the driving style to counter surveillance and said it demonstrated the 

individuals were sophisticated with respect to law enforcement tactics.
113 

Newell further indicated that ATF would be meeting with ICE the following 

Monday, November 30, to discuss the matter. 

That same day Hurley wrote in an e-mail to Burke that ATF needed to 

“fend off any premature interview attempts by other ICE agents” because “the 

greatest risk to the larger [Fast and Furious] investigation will be tipping our 

hand to the suspects too soon.” Hurley also told Burke that he thought the 

case was an opportunity for the agencies “to make good on what they have 

been telling us about cooperating and doing what’s best for the case.” Hurley 

stated that it would take time to build the investigation into an indictable case 

and that “[w]e will not be able to see the purchasers arrested immediately.” 

Burke asked in reply whether the tension and potential conflict between ATF 

and ICE was prevalent in every district and whether their respective 

headquarters were aware of the issues. Hurley told him that based on what he 

had heard from other districts and attorneys in the Department, “it is likely a 

nation-wide rivalry based on overlapping jurisdictions, competition for 

resources, and a desire for autonomy in investigations (no agent wants to be 

told that they must involve another agency to go forward on a particular type of 

case).” 

In an e-mail to SAC Newell and ASAC Gillett dated November 27, 2009, 

MacAllister expressed sentiments similar to Hurley’s with respect to not 

conducting interviews. She explained that she chose not to interview any of 

the suspected straw purchasers tied to the Naco, Sonora seizure because “at 

this point in the investigation we are actively identifying much larger players in 

the organization and contacting any of the purchasers at this point in time will 

adversely affect the success of this investigation.” ASAC Gillett replied to 

MacAllister, “that is fine and totally your call.”

MacAllister also contacted Hurley for assistance with the financial 

investigation of the subjects and to obtain telephone calling information. 

MacAllister told us that she contacted Hurley because she had worked with 

him on previous cases. MacAllister said that aside from assistance with the 

financial investigation, Hurley did not provide any guidance in November 2009 

about the conduct of Operation Fast & Furious. 

The day after the scheduled November 30 meeting between ATF and ICE 

(which Newell had referenced in his earlier e-mail to Burke), Burke e-mailed 

Hurley to ask about the status of the case. Hurley told him that a file had been 

opened and that he was assisting with efforts to start linking the subjects 

together. Hurley also told him that MacAllister believed there might be as 

many as 15 straw purchasers and that she needed to identify the trafficker for 

whom they were buying and develop evidence to prove the connection to the 

straw purchasers. Hurley advised Burke that he and his Section Chief, 

Michael Morrissey, had spoken with MacAllister and ASAC James Needles on 

November 30 about “some of the 9th Circuit hurdles we have to overcome. We 
114 

have assured [MacAllister] that we will work with her to find creative ways to 

overcome the corpus delicti challenges that accompany these straw purchasing 

cases.”90

Also in November, Group VII entered all firearms purchased by the 

subjects into the ATF’s Suspect Gun Database (previously described in Chapter 

Two). MacAllister told us that this measure was taken to better track firearms 

that were recovered during the course of the investigation. MacAllister further 

requested that ATF’s National Tracing Center not release trace results 

information to requesters, an option that was available to all case agents with 

respect to firearms they enter into the Suspect Gun Database. When we asked 

MacAllister about this request, she said she was aware from previous cases 

that requesting agents sometime received trace information and then contacted 

the purchaser of the firearm. MacAllister said she did not want this to occur in 

the early stage of Operation Fast and Furious. MacAllister told us she 

understood that a requester, even if not provided the identity of the purchaser 

and the FFL, would receive from the National Tracing Center the case agent’s 

name and contact information. An official from the National Tracing Center 

told the OIG, however, that when a case agent blocks release of trace results, 

the requester is told only that the trace results have been “delayed.” According 

to that National Tracing Center official, the requester only receives the case 

agent’s name and contact information if the requester calls the National 

Tracing Center and asks why the trace was delayed. 

 Hurley concluded by noting that “[t]he odds are that this will be a 

hub-and-spokes conspiracy and we will need to indict and secure the 

cooperation of the straw buyers before we are able to indict the trafficker(s).” 

Burke responded, “Excellent, excellent, and excellent. Whatever you need to 

keep this moving forward, let me know.” 

MacAllister also said that any ATF agent could find the case agent’s 

name and contact information by opening the agency’s electronic case 

management system and entering the serial number of the recovered firearm. 

An ATF official responsible for the electronic case management system told the 

OIG that in fact this would be possible. However, other federal law 

enforcement agencies, such as the DEA and ICE, and state and local law 

enforcement, do not have access to the ATF case management system. 

In sum, by the end of November 2009 – just 30 days after agents were 

contacted by FFL1 about suspicious purchases – Group VII had identified a 

large firearms trafficking group. According to a summary of the case drafted by 

MacAllister on December 1, 2009, that was sent to Newell, Group VII had 

identified 341 firearms purchased by this organization from five Phoenix-area 

 

90 We discuss in Section IV.G. of this chapter the issues involving corpus delicti and the 

prosecution of firearms cases by the U.S. Attorney’s Office for the District of Arizona.
115 

FFLs for approximately $190,000. According to MacAllister’s summary, Group 

VII intended to identify the main target of the investigation and any additional 

subjects, obtain and analyze telephone calling data, and continue the financial 

investigation of the subjects.91

The investigative plan did not include seizing guns or approaching 

subjects. There also was no discussion about taking any action to try to limit 

the substantial purchasing activity by the subjects of the investigation. To the 

contrary, according to Newell’s annotation to the case summary, the approach 

was “to further establish the structure of the organization and establish illegal 

acts before proceeding to an overt phase . . . [a] strictly straw purchasing case 

in this Federal Judicial District is very hard to pursue but we are keeping the 

[United States Attorney’s Office for the District of Arizona] fully informed of this 

case on a regular basis.” Newell sent the summary of the case, and 

information about the November 24 seizure in Naco, Sonora, to McMahon on 

December 2, 2009, telling him that he would keep him posted about the case, 

“but for now we’ve got it handled.” 

Newell told us that he recalled discussing with Gillett in December what 

approach to take in the case. Newell told us that the question was whether 

agents should approach the subjects they had identified and try to make 

arrests – if the U.S. Attorney’s Office would support that – or “do we conduct an 

investigation to determine who is actually behind all this, who is actually 

orchestrating this, financing this. And that was the judgment call we made. 

And that was the judgment call that I agreed with.” 

D. Purchases Continue in December and January as Additional 

Subjects are Identified 

During December 2009 and January 2010, Operation Fast and Furious 

expanded rapidly in nearly every respect, including the firearms purchasing 

activity by straw purchasers, the number of related firearms recovered in 

Mexico and the United States, the hours of surveillance conducted by ATF and 

local law enforcement, and the investigative techniques used to monitor 

subjects of the investigation. 

Group VII continued to receive Form 4473s from FFL1 and several other 

Phoenix-area FFLs for the firearms being purchased by Operation Fast and 

Furious subjects. In December, Patino purchased 66 firearms, all from FFL1, 

 

91 Newell forwarded MacAllister’s December 2009 summary to ATF Deputy Assistant 

Director McMahon. Officials at ATF Headquarters also received information about Operation 

Fast and Furious in several briefings in December 2009 and January 2010. In Chapter Five, 

we describe the information conveyed at these briefings and how officials responded to the 

significant purchasing and trafficking activity by the subjects of the investigation.
116 

for over $44,000; in January 2010, he purchased 53 firearms for over $44,000, 

including the purchase of a .50 caliber Barrett rifle for nearly $9,000.92

According to ATF records, two FFLs that provided substantial assistance 

to ATF during the investigation – FFL1 and a second FFL, which we refer to in 

this report as FFL2 – gave Group VII advance notice of purchases on six 

occasions in December 2009. In each instance, Group VII conducted 

surveillance at the FFL and attempted to follow the purchasers and the 

firearms, but took no efforts to try to seize the firearms or make arrests. 

 In 

December 2009, Moore purchased 53 firearms for over $31,000, including 20 

purchased from FFL1 on December 10. Chambers purchased 15 firearms in 

December, including 10 AK-47 style rifles for over $5,000 from FFL1 on 

December 11. 

For example, on December 3, 2009, MacAllister received information 

from FFL1 that Moore – who paid cash for 61 AK-47 style rifles in the month of 

November – was in the store asking about prices for guns. Approximately one 

hour later, MacAllister received information from FFL1 that Moore had 

returned to the store and was purchasing 20 AK-47 style rifles. MacAllister 

and a team of agents and local law enforcement officers went to FFL1 to 

conduct surveillance. According to the report of the surveillance, Moore was 

observed with an FFL1 employee placing multiple cardboard rifle boxes into 

Moore’s vehicle. Members of the surveillance team then followed Moore to the 

auto body shop previously identified as a possible stash house. There, Moore 

and four others transferred the cardboard rifle boxes from Moore’s vehicle to a 

second vehicle in the parking lot. Surveillance continued on this second 

vehicle when it left the auto body shop. The second vehicle eventually entered 

a residential neighborhood and surveillance was terminated when the vehicle 

could not be located. 

Four days later, on December 7, FFL1 contacted MacAllister about 

another possible sale involving an individual – a new straw purchaser later 

identified as Sean Steward – who was at the store making inquiries about 

purchasing 20 AK-47 style rifles. According to an ATF report, Steward told the 

store that he needed to get the money to pay for the firearms and would return 

that day. FFL1 also informed another Group VII agent on December 7 that 

Moore, who had already been identified as a subject in the case, called to ask 

about the 20 AK-47 style rifles in inventory. ATF agents continued to conduct 

 

92 A .50 caliber rifle must be fired mounted on a tripod, fires belt-fed ammunition, 

weighs over 100 pounds, and is over 5 feet long. According to ATF documents, the purchase of 

this weapon significantly increases a trafficking organization’s firepower and its financial 

investment in weapons.
117 

surveillance at FFL1, but Steward and Moore did not return to the store that 

day. 

On the morning of December 8, MacAllister went to FFL1 and was 

informed that a caller inquired about the store’s inventory of AK-47 style rifles. 

The incoming telephone number was from Celis-Acosta’s residence, which had 

already been identified by agents as a possible stash house. Shortly thereafter, 

Steward arrived to purchase the 20 AK-47 style rifles. A United Parcel Services 

truck delivered an additional 20 AK-47 style rifles while Steward was at the 

store and, according to the ATF report of this incident, Steward told FFL1 that 

he would return later in the day and purchase those firearms as well. 

Agents maintained surveillance of Steward after he left FFL1 and 

eventually observed him transfer boxes containing the firearms from his vehicle 

to another. Agents also conducted surveillance of Steward when he returned to 

FFL1 accompanied by two other individuals to purchase the additional 20 AK47 style rifles. The firearms were placed in the bed of a truck – not Steward’s 

vehicle – and the three individuals left FFL1. At ATF’s request, Phoenix police 

officers conducted a traffic stop of the vehicle in order to identify its occupants, 

one of whom was Celis-Acosta. The officers asked the occupants about the 

firearms that were visible in the back of the vehicle. Steward told the officers 

that he purchased the firearms and that they belonged to him. The officers did 

not seize the firearms or issue a traffic citation. Surveillance was continued 

after this stop, and agents eventually observed the firearms being transferred 

into Celis-Acosta’s residence. 

Under circumstances that we describe later, 8 of the 40 firearms 

purchased by Steward on December 8 were seized by police officers in Douglas, 

Arizona (adjacent to the Mexican border) later that same day. ATF reviewed 

records on December 9 from the Arizona Department of Economic security that 

showed Steward had a reported income totaling $4479 for the first quarter of 

2009. Steward went on to purchase approximately 200 firearms in December, 

all but one from FFL1, for over $110,000. This total included 43 firearms 

purchased on a single day, December 14 (four of these firearms were recovered 

in Mexico just four days later). Steward purchased another 42 firearms in 

January 2010 for over $25,000.93

 

93 According to ATF documents, on January 20, 2010, Steward called the owner of 

FFL1 and told the owner that he (Steward) had recently received a strange phone call from 

someone who asked if this was FFL1 and then hung up. Steward told the owner that he 

believed the call came from a government agency and that, because of the call, he was going to 

stop buying firearms. ATF records show that Steward purchased no firearms in January after 

this telephone call. However, he resumed buying firearms in May 2010 and purchased a total 

of 51 firearms in May, June, and December of that year. Voth told us that the call was placed 

by one of the agents on Group VII who, intending to contact FFL1 to obtain some Form 4473s, 

mistakenly called the number on a sales sheet that the agent was looking at.

 ATF did not take any measures to disrupt 
118 

Steward’s purchasing activity following the events on December 8 or at any 

other time until agents interviewed him at his residence in November 2010. 

Steward was not arrested until the Fast and Furious case was indicted on 

January 19, 2011. 

On December 11, FFL1 notified Group VII that Chambers – who paid 

cash for 37 firearms in the month of November despite having no reported 

income as of February 2009 – was at the store purchasing multiple guns. 

Group VII sent a surveillance team to the store, which followed Chambers for 

approximately 11⁄2 hours until it saw him park in the driveway of Manuel CelisAcosta’s residence, at which time surveillance was terminated. 

Less than 30 minutes later, FFL1 informed MacAllister that Patino was in 

the store purchasing firearms. By this time, Group VII was aware that Patino 

had purchased approximately 60 firearms and had a reported income totaling 

approximately $6300 for the second quarter of 2009. A surveillance team was 

sent to FFL1, where it found Patino and Kristi Ireland, who was later identified 

as Patino’s girlfriend. The surveillance team observed Patino place several 

boxes from the store into his vehicle and leave the parking lot. The team 

followed Patino, lost surveillance when he pulled into the parking lot of a home 

repair store, but regained it approximately 10 minutes later when he was seen 

at Celis-Acosta’s residence. There, an individual exchanged an “unidentified 

object” with Patino, who then left the residence. Patino returned to the 

neighborhood a short time later and parked in front of a different residence. 

Surveillance was terminated after Patino left the neighborhood with an 

unidentified individual from the residence and the team was unable to 

maintain visual contact with Patino’s vehicle. 

MacAllister told us that the purpose of these surveillances was to observe 

where the firearms were being taken, how they were being transported, and 

what additional individuals were involved in the trafficking. The purpose, she 

said, did not include taking overt enforcement action with respect to the 

firearms or the purchasers. She also told us that the stop of Steward on 

December 8 by Phoenix police officers illustrated how straw purchasers were 

likely to respond to law enforcement questioning and why approaching subjects 

could be ineffective.94

 

94 We found MacAllister’s sweeping conclusion to be unpersuasive. Though some

Operation Fast and Furious subjects denied being straw purchasers when interviewed by 

agents beginning in October 2010, most subjects who were interviewed incident to their arrests

following the January 2011 indictment confessed to being straw purchasers and identified coconspirators. Moreover, in this instance, the purpose in stopping Steward was to identify the 

vehicle’s occupants and not to obtain an admission or to seize firearms, or to even give a 

speeding ticket. 

 Given this decision to not approach subjects or take 

enforcement action, the occasions where ATF received post-sale notice of 
119 

suspicious firearms purchasing activity did not represent lost opportunities to 

interdict. Thus, for example, when ATF learned on January 19 that Jaime 

Avila – a recruit of Patino’s – had purchased three AK-47 style rifles from FFL1 

on January 16 (one day after Patino’s 10-gun purchase from FFL1), ATF took 

no action as to Avila. Indeed, it was not until December 15, 2010, after two of 

the three guns purchased by Avila on January 16 were found at the scene of 

Agent Terry’s murder, that ATF and the U.S. Attorney’s Office decided to 

question and then arrest Avila about his straw purchasing activity.95

In addition to the evidence agents were obtaining through surveillance, 

ATF also learned in December 2009 and January 2010 of additional recoveries 

of firearms tied to Operation Fast and Furious subjects in Mexico and the 

United States. For example, on December 9, 2009, one day after the Douglas 

seizure of firearms which had been purchased earlier in the day by Steward, 

the Mexican Army recovered 900 pounds of cocaine, 132 pounds of 

methamphetamine, $2 million in U.S. currency, and 48 firearms (46 AK-47 

style rifles) in Mexicali, Mexico, a town approximately 240 miles southwest of 

Phoenix. Twenty of the recovered firearms had been purchased by Operation 

Fast and Furious subjects Chambers, Moore, between 

October 21 and November 19, 2009. According to an ATF report, Mexican 

authorities believed the firearms were destined for the Sinaloa Cartel to help 

replenish the loss of hundreds of firearms to the Mexican government and to 

sustain the drug cartel’s fight with a rival cartel. ATF and the U.S. Attorney’s 

Office took no action with regard to the straw purchasers of the 20 firearms 

recovered in Mexico. ATF records indicate that Chambers purchased another 

10 firearms on December 11 and Moore purchased another 21 firearms in 

March 2010, including two .50 caliber rifles.

 We 

describe in Section IV.G. below the tactical and legal reasons for this approach, 

according to ATF and the U.S. Attorney’s Office. 

96

 

95 The government’s response to Agent Terry’s murder is discussed further in Section 

III of this chapter, and in Chapter Five.

96 Gillett kept Newell informed of recoveries such as this and the progress of the case. 

For example, he informed Newell on December 17 that the firearms from a recent seizure in 

Mexico were linked to MacAllister’s case and that in the previous week subjects had purchased 

175 firearms.
120 

Photo 4.2: Mexicali, Mexico Seizure 

Source: ATF

Nine days later, on December 18, 2009, Mexican law enforcement agents 

recovered five firearms in Tijuana, Mexico, four of which had been originally 

purchased by Steward. Two more of Steward’s purchases were recovered as 

part of a 14-gun seizure by the Mexican Army in Tijuana, Mexico, on January 

8, 2010. The recovered firearms connected to Steward were part of the 43 

firearms he purchased from FFL1 over the course of a single day on December 

14, 2009. For reasons we describe in Section IV.G., the recoveries of firearms 

purchased by Steward in or near Mexico on December 8, December 18, and 

January 8, did not prompt ATF and the U.S. Attorney’s Office to take any 

enforcement action as to Steward. 

Still more of Steward’s purchases were recovered near the Mexican 

border five days later, on January 13, 2010, when the El Paso, Texas, Police 

Department, without the knowledge or involvement of ATF Phoenix, searched a 

“stash house” believed to contain illegal narcotics and firearms and recovered 

40 AK-47 style rifles that had been purchased by Steward on December 24, 

2009, just one week after the December 18 recovery in Tijuana of firearms 

connected to Steward. 

Following the El Paso seizure on January 13, Newell sent an e-mail to 

Deputy Assistant Director McMahon stating that ATF Phoenix believed the El 

Paso stash house might be a “way station” for firearms from the Phoenix area 

before being transported to Mexico. Newell also stated, “we are working this 

‘fast and furious’, the good news being we got another 42 off the street and can 

keep our case going. Hopefully the big bosses realize we are doing everything 

possible to prevent guns going to Mexico while at the same time trying to put 
121 

together a phenomenal case. Good news too is now we have another Federal 

venue should the [U.S. Attorney’s Office] here punt.”97

E. Connections to DEA and ICE Operations in Late 2009 and 

January 2010 

 We found that Newell’s 

statement to McMahon that “we got another 42 off the street” conveyed a 

misleading impression about the activities of Group VII in light of the fact it 

played no role in the El Paso seizure. We also found that Newell’s 

representation to McMahon that “we are doing everything possible to prevent 

guns going to Mexico” created a misleading impression because, as outlined 

above and indicated in our analysis section, ATF Phoenix and the U.S. 

Attorney’s Office had for legal and tactical reasons decided to undertake a 

longer term investigative strategy to dismantle the organization, a strategy that 

deferred overt action against the individual straw purchasers. 

Beginning in late November 2009, agents from ATF’s Phoenix Field 

Division had multiple contacts with agents with the DEA and ICE related to 

Operation Fast and Furious. The DEA provided particularly significant 

information to ATF that might have enabled ATF to identify a 

 of the Celis-Acosta trafficking organization during a firearms 

purchase on December 22. However, ATF failed to conduct surveillance of the 

transaction because it was too close to the holidays and ATF apparently did not 

have personnel available to staff the operation. We describe these contacts and 

events below. 

1. DEA Provides Significant Information to ATF 

Near the end of November 2009, MacAllister sent an e-mail to a DEA 

agent assigned to the DEA’s Yuma, Arizona office with whom MacAllister was 

working on another case. The e-mail requested that the DEA agent run six 

telephone numbers associated with straw purchasers in Operation Fast and 

Furious against a DEA database that is regularly used to “deconflict” 

investigations. By checking the database, the requesting agent can learn 

whether a telephone number also appears in another investigation and, if it 

does, then coordinate with the agent responsible for the other case. The DEA 

 

97 ATF’s El Paso Field Division initiated an investigation based on this seizure. 

 

 

 

 

 

 

 
122 

agent told us that she checked the database several days after MacAllister’s 

request but did not receive any positive hits. 

Also in November 2009, DEA agents in Phoenix working on an OCDETF 

drug trafficking case received information about a possible firearms deal 

between some of the individuals DEA was investigating, including a drug 

courier in Phoenix named Manuel Marquez. According to DEA, the 

negotiations on the deal fell apart. Then, on or about December 10, 2009, DEA 

received information that Marquez planned to meet an individual concerning 

AK-47 type rifles. The task force officer assigned to the DEA case conducted 

surveillance of Marquez talking to an individual later identified as Jacob 

Chambers (a subject in Operation Fast and Furious). 

On December 14, 2009, a DEA analyst in Phoenix checked the DEA 

database with a telephone number subscribed to by Jacob Chambers. The 

database showed that this number had been previously checked in November 

2009 in connection with the ATF investigation. The DEA then contacted ATF to 

schedule a “deconfliction” meeting on December 15, 2009. 

The December 15 meeting was attended by Voth, MacAllister, and 

English from ATF; and by the case agent, the acting group supervisor, the task 

force officer, and an analyst from the DEA. According to the DEA case agent 

and task force officer, they provided the ATF agents a summary of the DEA’s 

case and a timeline of when they started receiving information about possible 

gun trafficking. They identified the key players in the DEA’s case, how 

Chambers fit in, and what the task force officer observed during the December 

10 surveillance. 

During the meeting, the ATF agents told the DEA representatives that 

they had already identified Chambers in their case and that he worked for an 

individual named Manuel Celis-Acosta. This information was significant to the 

DEA because they were aware that Marquez had connections to someone else 

named “Manuel” who the DEA had not yet identified. The ATF agents also told 

the DEA representatives that agents had actually observed the DEA task force 

officer during his December 10 surveillance of Marquez and Chambers because 

ATF had stationary video surveillance equipment at the location.98

 

98 According to ATF documents, the first installation of this equipment was on 

December 10 and was placed near the Acosta residence, which by that time had been identified 

as a possible stash house for firearms being purchased by Operation Fast and Furious 

subjects.

 The DEA 

agents volunteered to provide ATF with all current and future information 

about gun trafficking the DEA had from its case. The DEA case agent told us 

that ATF did not provide an overview of its investigation during this meeting, 
123 

but also said he did not ask for one because his primary interest in having the 

meeting was to pass on to ATF the gun trafficking information. 

MacAllister said DEA agents stated during the meeting that they 

anticipated taking their case down in late January or early February, and that 

Marquez would be charged. MacAllister said that based on this, she did not 

feel ATF had the option to contact Marquez because it would interfere with the 

DEA’s case. However, she also told us that she did not make an explicit 

request to contact Marquez and that she was not aware that anyone else from 

ATF did at that time. Several DEA agents who attended the December 15 

meeting told the OIG that they did not ask ATF to delay or defer action until 

the DEA’s case concluded. The case agent said that the DEA shared the 

information with the ATF with the expectation that ATF would act on it. The 

case agent also told us that Marquez and Celis-Acosta were small pieces of the 

DEA’s case and that he was therefore not concerned how ATF’s actions might 

affect the DEA’s investigation. The case agent said he requested only that ATF 

notify the DEA if it took action with respect to Marquez, and that the DEA be 

included in any surveillance conducted of a particular residence of interest to 

the DEA.99 Following the December 15 meeting, the DEA analyst placed all of 

the information the DEA had from its case regarding gun trafficking on 

MacAllister’s thumb drive.100

ATF ASAC Gillett did not attend the December 15 meeting but told us 

that he spoke to the DEA ASAC and was asked that ATF not take any action 

based on the information DEA was providing, and not use the information in 

any ATF affidavits. The DEA ASAC, however, told us that he did not make any 

such request. As described later in this Chapter, ATF in fact used the DEA 

information in each of the nine affidavits filed in federal court in support of 

wiretap applications, including the first application filed in March 2010. 

The day after the December 15 meeting, the DEA task force officer 

contacted MacAllister to inform her of a possible transfer of firearms involving 

significant subjects in the DEA investigation that was considered in 

furtherance of the drug conspiracy. The DEA and ATF set up surveillance 

teams, but they did not observe a transfer take place that day. Two days later, 

the DEA began to receive information indicating that another transaction, this 

 

99 ATF agents did not interview Marquez until May 10, 2011.

100 The DEA analyst told us that the calling information was provided to MacAllister 

again on January 4, 2010, after MacAllister called and stated that she had misplaced the 

original thumb drive. Then, during the week of January 13, Voth requested the information 

through the DEA supervisor. The information was placed on a disc and placed in an envelope 

for Voth. The DEA analyst told us that she e-mailed Voth and the DEA supervisor that the disc 

was ready, and later confirmed that the envelope was picked up.
124 

one involving 32 AK-47 style rifles, was being planned by Celis-Acosta, 

Marquez, and an individual referred to as The information revealed 

that Celis-Acosta had the firearms stored at an unknown location, and that 

Marquez was going to put Celis-Acosta in contact with who wanted 

to purchase the weapons. The plan was for Celis-Acosta to drive the guns from 

Phoenix to El Paso and deliver them to who in turn would transport 

the guns to Mexico. 

On December 19 the DEA task force officer contacted MacAllister to 

provide her with the information and tell her that it appeared the transaction 

would take place in the next day or two. The task force officer said that 

MacAllister replied that it was too close to the holidays and she could not get 

personnel to staff a surveillance. MacAllister told us that because of the time 

of year, the office was “pretty short on bodies,” and also said that although the 

information indicated that Celis-Acosta was going to El Paso, it did not include 

details about when or where he was meeting The DEA task force 

officer stated that because the transaction involved firearms only and not 

drugs, the DEA did not itself take any action on the information. 

As a result, there was no surveillance by law enforcement of the possible 

delivery from Celis-Acosta to on December 22, which the DEA 

subsequently learned in fact took place in El Paso. According to the DEA task 

force officer, this was the last information the DEA received about gun 

trafficking involving Celis-Acosta. However, ATF learned in March 2010 from 

another DEA office the full true name of and that he and 

, whose full true name was also identified, had been the subjects of a 

joint DEA-Federal Bureau of Investigation (FBI) drug trafficking investigation 

out of that was initiated on December 4, 2009. The DEA office 

that provided this information advised ATF that it believed these 

individuals had received firearms from Celis-Acosta. ATF did not appreciate 

the significance of this connection until March 2011 when it learned that 

 in fact was, together with the 

of the Celis-Acosta firearms trafficking group.101

2. Contact with ICE 

ATF’s first contact with ICE resulted from the November 20, 2009, 

recovery of 42 firearms in Naco, Sonora. Nineteen of the guns seized had been 

purchased by two Fast and Furious subjects on November 6 and 14, 2009. As 

 

101 The failure to appreciate the significance of the connection between these 

individuals and the Celis-Acosta group earlier than March 2011 is troubling and raises 

questions about how information was shared among various offices of ATF, the DEA, and FBI, 

at this stage and at other points during the investigations. We continue to review materials 

relevant to these issues in order to assess whether further investigation is warranted.
125 

we described above, agents from ICE interviewed the driver of the truck, who 

reportedly claimed to have been “set up” by Mexican customs officials and 

refused to cooperate. ATF Phoenix learned through queries of the Suspect Gun 

Database that some of the firearms were linked to Operation Fast and Furious. 

As noted previously, SAC Newell told U.S. Attorney Burke and AUSA Hurley 

that “we are advising ICE to stand down on their current proactive activity in 

Arizona in order not to compromise our case.” 

Several days later, on November 30, 2009, ATF Phoenix personnel held a 

deconfliction meeting with agents from ATF’s Tucson office and representatives 

from ICE and the United States Marshals Service, relating to the Naco seizure. 

According to MacAllister, the purpose of the meeting was to receive any 

information about the November 20 Naco recovery, and for ATF to generally 

describe its investigation. MacAllister said that the ICE representatives agreed 

to her request that agents not pursue any further leads on the recovery 

connected to ATF’s investigation without first notifying MacAllister. We asked 

MacAllister whether anyone on the call questioned how ATF was conducting its 

investigation, and she told us she could not recall any such questions being 

asked. 

Also on November 30, 2009, MacAllister contacted an ICE agent in 

Phoenix with whom she had previously worked regarding the seizure in Naco 

but who had not been at the November 30 meeting. According to the ICE 

agent, MacAllister told him that she was working on a big straw purchaser case 

in which guns were being transported to Mexico. The ICE agent told us that 

MacAllister wanted to coordinate efforts at the ports of entry so that ATF would 

take over any seizures related to her case and ICE would not conduct any 

independent investigations.102 The ICE agent said he told MacAllister that he 

would have to talk to ICE management and that in his experience a conspiracy 

investigation run by one office uses law enforcement efforts by other offices to 

help build the case.103

 

102 ATF is responsible for investigating criminal and regulatory violations of federal laws 

relating to firearms, explosives, arson, alcohol, and tobacco smuggling. See 28 U.S.C. § 

599A(b)(1), ATF also has responsibility under the Arms Export Control Act for investigating the 

importation of items listed on the U.S. munitions list. See 28 CFR Part 0.130(c). However, ICE 

is responsible for violations under the Arms Export Control Act that relate to the exportation, 

transit, or temporary import or export of any such items. See 22 CFR Part 127.4.

 According to this agent, “because someone else does 

casework doesn’t mean that it’s going to kill your overall, your overarching 

conspiracy investigation.” 

103 As we discuss in our analysis section, The Office of the Inspector General for the 

Department of Homeland Security (DHS-OIG), the parent agency for ICE, is conducting a 

review of ICE’s involvement in and knowledge of Operation Fast and Furious.
126 

The next contact with ICE also resulted from a seizure of firearms that 

were connected to Operation Fast and Furious. As described previously, on 

December 8, 2009, officers from the Douglas, Arizona Police Department, 

acting on a tip from a confidential informant, seized nine AK-47 style rifles 

during a traffic stop. The firearms were found hidden beneath the vehicle’s 

rear bumper. These were among the 20 firearms that Sean Steward purchased 

earlier that same day from FFL1.104

The ICE agent who had previously spoken to MacAllister attempted to 

trace the weapons that were seized. Because the firearms had been entered 

into ATF’s Suspect Gun Database, and because MacAllister had requested that 

the National Tracing Center not release the trace results to the requester, the 

ICE agent did not receive the information. MacAllister, however, was notified of 

the trace request and she called the ICE agent. According to the ICE agent, 

MacAllister told him the firearms were tied to her case and asked that ICE not 

conduct any further investigation. The ICE agent also said MacAllister asked 

whether ATF could take custody of the firearms. The ICE agent told her that 

ICE’s Douglas office would retain custody for possible future prosecution. 

 The Douglas Police Department referred 

the matter to ICE for additional investigation and possible prosecution. 

The two agreed to meet the next day to discuss the situation. The 

meeting was attended by MacAllister, Voth, and two agents from ICE’s Phoenix 

office (one being the agent MacAllister had contacted). According to 

MacAllister’s written summary of the meeting, she and Voth advised the ICE 

agents of the ATF’s investigation and requested that ICE be an active 

participant in the case. The ICE agents provided MacAllister and Voth a copy 

of the ICE report about the seizure and said they would provide a copy of the 

police department’s report when ICE received it. MacAllister told us that she 

also asked to be present during ICE’s interview of the individuals who had 

transported the firearms and was assured that she would be included. 

Within days of this meeting, the two ICE agents and officers with the 

Douglas Police Department interviewed the confidential informant whose 

information had led to the December 8 seizure. MacAllister was not advised of 

the interview. According to the ICE agent, the informant said he had made 

himself available to a gun smuggling group in Mexico to transport guns from 

the U.S. to Mexico and that he would be willing to cooperate with law 

enforcement. The informant believed there were several stash houses in the 

Phoenix area being used for the trafficking, but did not know the identities of 

conspirators located in Mexico. This information from the informant prompted 

ICE agents in the Douglas office to develop an operation in which the informant 

 

104 As we described earlier, ATF had conducted surveillance of this purchase as well as 

another 20-gun purchase Steward made from FFL1 later in the day.
127 

would drive to Phoenix to pick up firearms in a vehicle with a GPS tracking 

device attached. The agents expected that the operation would identify 

individuals and residences involved in firearms trafficking. 

The ICE agent informed MacAllister of this proposed operation during a 

telephone call on December 17, 2009. According to an e-mail MacAllister sent 

to Gillett and Voth summarizing the call, she told the ICE agent that all the 

firearms seized on December 8 were purchased by a subject in ATF’s case, and 

she offered to assist with the operation if it occurred in order to avoid any 

conflicts with ATF’s investigation. According to the ICE agent, however, 

MacAllister was not interested in pursuing the operation for fear of 

compromising her ongoing investigation. On this same day, SAC Newell sent 

an e-mail to the DEA’s Special Agent in Charge in Phoenix claiming that ICE 

was trying to “muscle their way into our case.” 

Gillett told us that after receiving this information from MacAllister, he 

spoke to the ASAC of the ICE office in Douglas and explained to him that ATF 

had an active investigation related to the guns ICE had seized. Gillett said he 

told the official that ATF was concerned that ICE’s proposed operation might 

compromise ATF’s case. The matter was subsequently addressed at a January 

2010 meeting attended by Gillett and Voth from ATF; a case agent, supervisor, 

and incoming Deputy SAC from ICE; and Emory Hurley from the U.S. 

Attorney’s Office. The DEA supervisor for the ongoing OCDETF investigation 

described earlier also attended. 

According to Gillett, the participants at the January 2010 meeting agreed 

that any future operational activities would be fully coordinated among the 

agencies. The DEA supervisor who attended told us that he recalled someone 

from ICE expressing concern about whether firearms were being seized and 

Gillett telling the group that ATF never had the opportunity to intercept guns. 

The DEA supervisor told us that he referenced the December 22, 2009, delivery 

of firearms that DEA had told ATF about, and questioned why ATF felt the 

firearms had to get to the border before they could be seized. He said the other 

attendees ignored his comments. Hurley told us that he did not recall any 

concerns being raised about firearms seizures, nor did he recall any discussion 

about the use of a confidential informant connected to the case in Douglas, 

Arizona. 

The operation that was proposed by the ICE Douglas office never 

materialized. The ICE agent told us that ATF and the U.S. Attorney’s Office 

requested that ICE not pursue any follow-up on the Douglas seizure and ICE 

management agreed. The ICE agent told us that following this meeting, he 

informed his supervisor that he did not want to be involved with ATF’s 

investigation. He told us that he viewed the case as “train wreck.” 
128 

The ICE agent we interviewed ceased to have any direct involvement with 

Operation Fast and Furious after the January 2010 meeting. ICE’s Phoenix 

office assigned another agent to serve as point of contact for ATF, and 

eventually detailed this agent to ATF’s Group VII to work on the investigation 

full-time.105

F. FFL1’s Cooperation Increases and Request for Meeting with 

the Government on December 17 

 Prior to joining ICE, this agent had worked with ATF as an 

Industry Operations Investigator. As described in Chapter Two, these 

investigators perform ATF’s regulatory functions by, for example, conducting 

FFL inspections. 

December 2009 and January 2010 also marked a significant expansion 

of FFL1’s cooperation with Operation Fast and Furious. Like other FFLs, FFL1 

continued to provide ATF with copies of Form 4473s of individuals identified by 

ATF. In addition, the owner of FFL1 carried purchased firearms to the buyers’ 

vehicles in order to try to identify other individuals in the vehicles and obtain 

license plate numbers. He also contacted ATF when particular individuals 

came into the store, and permitted ATF to place a camera in the store to record 

firearms transactions and other activities. In addition, the owner of FFL1 

agreed to use an ATF-provided recording system to record his telephone calls 

with particular Fast and Furious subjects. 

According to ATF records, by December 31, 2009, the suspected straw 

purchasers in Operation Fast and Furious had bought 619 firearms from FFL1 

for over $335,000. The owner of FFL1 told the OIG that in his previous 

experiences providing ATF information about what he considered suspicious 

sales, ATF would investigate and close the cases within 30 to 45 days. With 

respect to the information he began providing and ATF began requesting in 

October 2009, he did not see any indication that the investigation was coming 

to a close. To the contrary, the owner of FFL1 told the OIG that he grew 

concerned as he observed purchases being made by the same individuals: 

I had no reason to question or doubt what was going on until these 

purchases started significantly to a point of just dramatically 

increasing, where I’m getting every other day folks coming in 

wanting amounts of 10, 20 of these weapons. Now, let me say, this 

is unprecedented. In my 20 years, I had never experienced this. 

And it was alarming. And I constantly was in contact with Agent 

MacAllister to make her aware of things. And all the while, she 

 

105 The ICE agent who was assigned to ATF’s Group VII declined our request for a 

voluntary interview.
129 

assured me in no uncertain terms [that] we’re on top of it, we’re 

surveilling them. 

The owner of FFL1 contacted MacAllister in early December 2009 and 

requested a meeting to address his concerns. The meeting was held at FFL1 on 

December 17 and was attended by the owner of FFL1, MacAllister, Voth, and 

Hurley. The owner of FFL1 said that he asked how long ATF wanted him to 

continue making sales to the suspected straw purchasers, and was told that 

his level of cooperation was unprecedented for an FFL and that the government 

would like him to continue cooperating by continuing to make sales. 

MacAllister, Voth, and Hurley each disputed the owner of FFL1’s 

recollection of what was discussed at the December 17 meeting. They denied 

giving the owner of FFL1 direction about whether to make sales and denied 

telling him that ATF was interdicting the firearms he was selling to the 

suspected straw purchasers. According to Hurley, he told the owner of FFL1 

only that: “we’re glad that you’re continuing to work with ATF. We’re glad that 

you are making phone calls. I can’t give you legal advice but if you’re making 

lawful sales and a lawful sale seems to be unusual, please continue to call ATF. 

You know, please give ATF whatever information they are looking for.” Hurley 

said that he also told the owner of FFL1, “[U]nless you’re making an unlawful 

sale, you’re not implicating yourself by giving them [ATF] information. But I 

can’t tell you who to sell to just like I can’t tell you who you can’t sell to.” 

Voth wrote a report dated April 6, 2011, which memorialized the meeting 

on December 17, 2009. Voth told us that he did not intend to write a report of 

the meeting because he did believe this was the type of event that ATF policy 

required to be memorialized in a report of investigation.106

Voth’s report stated that the owner of FFL1 requested the December 17 

meeting because he was concerned that he was “endangering himself or 

implicating himself in a criminal investigation.” The report further stated, “[the 

owner of FFL1] was advised they could not tell him who he could or could not 

sell firearms to and that they could not instruct him to make a sale in violation 

of law or to refuse to make a lawful sale.” However, according to the report, the 

owner of FFL1 was told the information he was providing, particularly with 

respect to long gun sales, was “very important and useful to ongoing ATF 

 Voth told us he 

prepared the report at the direction of a Michael Morrissey, a supervisor at the 

U.S. Attorney’s Office, because an indicted Operation Fast and Furious subject 

notified prosecutors that he intended to assert an entrapment defense. 

 

106 ATF’s policy on Law Enforcement Investigative Reports states that agents should 

use reports of investigation as, among other purposes, “the primary reporting vehicle for all 

investigative and reportable matters and all investigations assigned a case number.” ATF 

Order 3270.10C, Chapter B.
130 

investigations.” Additionally, the owner of FFL1 was advised that it would be 

useful to ATF if he also obtained telephone numbers and vehicle and license 

plate information from these purchasers, even though an FFL was not required 

by law to obtain that information from the purchaser. The report stated that 

neither the owner of FFL1 nor any other FFL1 employee expressed any 

reluctance about cooperating. 

Following the December 17 meeting, the owner of FFL1 agreed to ATF’s 

request that he record telephone calls between himself and particular straw 

purchasers discussing possible firearms sales. The owner of FFL1 began 

recording calls on January 5, 2010, and recorded a total of 32 calls through 

August 23, 2010 – 23 with Patino and 9 with Steward. The recordings were 

periodically picked up from FFL1 by an agent in Group VII, who then listened 

to and summarized each call in an ATF report. The owner of FFL1 also 

continued to occasionally provide ATF agents with advance notice of sales to 

particular straw purchasers in which he was aware ATF was interested. 

A typical recording was of a call to or from Patino or Steward regarding 

the type, cost, availability, or purchase of particular firearms. For example, on 

January 5, 2010, the owner of FFL1 called Steward to discuss FFL1’s inventory 

of AK-47 style rifles. Steward had purchased 21 firearms the previous day. 

The owner of FFL1 told Steward that the store had received 20 additional AK47 style rifles and asked how many Steward was interested in. Steward told 

the owner of FFL1 that he was waiting on some money, but that when it arrived 

he would buy whatever AK-47 style rifles FFL1 had in inventory. The owner of 

FFL1 also asked Steward whether he was interested in purchasing some AK47s with , and said that he might be able to 

sell these for a lower price. 

In another call, on January 19, 2010, the owner of FFL1 told Steward 

that he was holding 63 of the “under folders,” referring to collapsible stock 

rifles. The owner of FFL1 told Steward that he had to begin selling the guns 

because he had to pay the wholesaler. Steward replied that he was driving 

back from New Mexico and would stop by the store. The owner of FFL1 

responded that he would be in town until January 21 and needed to sell some 

of the rifles right away. In two early morning calls with Patino on January 26, 

2010, the owner of FFL1 said that he was holding 43 under folders for Patino. 

The owner of FFL1 also asked Patino if he would purchase a couple of 

 and quoted the price he was willing to accept. Patino said he needed 

ten of the underfolders. In the second call, the owner of FFL1 again told Patino 

it would be great if he would buy one of the along with the 

underfolders. 

The above examples are representative of the recorded conversations the 

owner of FFL1 had with Patino and Steward, with the exception of the owner of 

FFL1’s particular interest in selling to them a rifle. We asked 
131 

Voth and MacAllister, specifically with respect to the recorded calls but also 

more generally with respect to the extent of the owner of FFL1’s cooperation, 

whether they believed the owner of FFL1 pursued and completed sales with 

Patino, Steward, and other straw purchasers as arms-length business 

transactions, or whether he made the effort in order to advance ATF’s 

investigation. In other words, we questioned whether the interests of ATF’s 

investigation caused the owner of FFL1 to sell firearms he otherwise would not 

have sold, as the owner of FFL1 told us he did. Voth and MacAllister each 

rejected this possibility. 

Voth told us that the owner of FFL1 was in the business of selling 

firearms and needed no encouragement from ATF to do so. Voth cited to us 

ATF statistics indicating that FFL1 was the highest volume seller of firearms in 

the state of Arizona during 2007-2009, and that more guns were traced to 

FFL1 during that period than to any other FFL. With respect to the recorded 

calls, Voth said the owner of FFL1 was a businessman trying to clear inventory 

from his store through lawful sales, and that his conversations with Steward or 

Patino were no different than they would be in the absence of an investigation. 

Voth told us that to his knowledge ATF personnel did not ask the owner of 

FFL1 to solicit business, and did not give the owner of FFL1 any instructions 

about what to say during the telephone calls; ATF personnel told the owner of 

FFL1 only that it would be helpful if some of the conversations were recorded. 

Like Voth, MacAllister maintained that she did not encourage or direct 

the owner of FFL1 to solicit or make sales that he otherwise would not have 

made. She also told us that the owner of FFL1’s specific efforts 

 was 

made at ATF’s request, 

 

 MacAllister told us that she knew Patino and Steward were 

continuing to make purchases at FFL1 and that she asked the owner of FFL1 

 

 107

With respect to the telephone calls that the owner of FFL1 recorded, 

MacAllister told us that in general she did not request that the owner of FFL1 

initiate contact with a subject about possible firearms purchases. She said the 

only exceptions to this might have occurred when she asked the owner of FFL1 

to , or when the owner of FFL1 

told her about a conversation with a subject that was not recorded and 

 

 

 

107 

 
132 

MacAllister requested that he contact the subject again so the conversation 

could be recorded. MacAllister also told us that on some occasions the owner 

of FFL1 asked whether he should return a call that he had received from a 

subject about possible firearms purchases, and MacAllister responded that he 

should. These communications notwithstanding, MacAllister maintained that 

the owner of FFL1’s interactions with Operation Fast and Furious subjects 

occurred in the ordinary course of the owner of FFL1 operating his business. 

Hurley also disputed any claim that the government gave the owner of 

FFL1 authority to sell firearms to whomever the ATF was investigating without 

regard to whether the sale was suspicious: 

As far as a meeting to encourage [the owner of FFL1] to make 

particular sales, nobody needed to encourage him to make sales. 

As far as telling him it was okay to sell whatever he wanted, we 

never told him it was okay to sell whatever you want or that it was 

okay to sell to certain people regardless of quantity. He still needs 

to make the decision on a case-by-case basis whether he’s going to 

sell. 

Hurley told us there are gun stores in Arizona, like FFL1, that have a history of 

calling ATF after making a suspicious sale. Hurley said he did not know 

whether these stores’ motivation was to “cover themselves” or for “good will,” 

but said it was “coincidental that they tend to make the call after the check has 

cleared or after the money is in the register.” Hurley said that the owner of 

FFL1 had for years called ATF after completing a big sale, and that he did not 

just start doing this in Operation Fast and Furious.

We asked SAC Newell whether he was aware of the assistance FFL1 was 

providing ATF during Operation Fast and Furious. Newell told us that he knew 

at the time that FFL1 was providing ATF with Form 4473s, recording telephone 

calls, and allowing ATF to place a camera inside the store. He said that in his 

experience FFL1’s level of cooperation was unusual, but he distinguished FFL1 

– which he and others referred to as a “source of information” – from an ATF 

confidential informant by the fact that the owner of FFL1 was not receiving 

compensation for his cooperation. He also said that a confidential informant 

acts at the direction of ATF and agrees to abide by ATF policies regarding its 

activities, whereas a source of information provides information voluntarily and 

does not act at ATF’s direction.108

 

108 The ATF guidelines in effect during Operation Fast and Furious defined confidential 

informants as, “persons who assist enforcement efforts, providing information and/or lawful 

services related to criminal or other unlawful activity to ATF that otherwise might not be 

available, in return for money or some other specific consideration. Informants shall work 

(Cont’d.)
133 

Newell said he believes that the owner of FFL1 was working voluntarily 

with ATF and that ATF agents never requested him to do anything he was not 

willing to do. Newell told us he would not have approved using FFL1 as a 

confidential informant and that it was never discussed.109

 According to ATF records, FFL1 sold 1,420 firearms for over $890,000 to 

Operation Fast and Furious subjects from November 2009 to July 2010, which 

accounted for nearly 80 percent of all known sales to Fast and Furious 

subjects during that period. Patino and Steward were responsible for 

purchasing 864 of the firearms from FFL1, and had purchased over 75 percent 

of these (656) before April. In the last section of this Chapter, we assess FFL1’s 

cooperation with ATF in the investigation, and explain our finding that the 

extent and nature of ATF’s requests for cooperation created at least the 

appearance that sales to particular Operation Fast and Furious subjects were 

made with ATF’s approval and authorization. 

 Despite FFL1’s close 

work and substantial cooperation with ATF agents throughout the Operation 

Fast and Furious investigation, and ATF’s reliance on him during the course of 

its investigation, Newell said that at times he was uncomfortable with ATF’s 

relationship with FFL1 because of the high volume of firearms the store sold, 

and that this prompted him to request that FFL1 be inspected by ATF 

regulators every year that he was the SAC. FFL1 in fact was inspected in 

September 2006, June 2008, and September 2009. Despite Newell’s asserted 

discomfort with FFL1, he did not take any action to curb ATF’s relationship 

with the store during the Operation Fast and Furious investigation. 

G. Government Adopts Longer Term Strategy that Defers Overt 

Enforcement Action 

By the end of 2009, ATF had identified 19 suspected straw purchasers 

who had bought approximately 690 firearms over the previous four months – 

primarily AK-47 style rifles – for over $350,000, much of it cash. Four of the 

buyers – Patino, Steward, Moore, and Chambers – were responsible for over 70 

percent of the purchases. The investigation also had established connections 

among the purchasers based on observations from surveillance, reviews of 

calling records, and the discovery of some subjects’ memberships in a car club. 

According to a briefing paper ATF’s Phoenix Field Division submitted to ATF 

 

under the directions and control of ATF special agents.” ATF Order 3250.1A, Chapter A, 

Section 2(a).

109 As discussed in Chapter Three, ATF used an FFL as a confidential informant in 

Operation Wide Receiver. Newell told us that he would not have approved this, but that the 

decision was made prior to his becoming the SAC. Newell said the arrangement raised 

significant conflict of interest issues because ATF was regulating the same FFL that it was 

paying to provide information in a criminal investigation. He said that he did not believe this is 

something ATF should be doing.
134 

Headquarters, 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.” 

In addition, agents had observed at least three transfers of firearms from 

Operation Fast and Furious subjects to unidentified third parties, identified 

two suspected stash houses in Phoenix where firearms were observed being 

dropped off, and learned of several recoveries of firearms purchased by subjects 

at locations in Mexico and Arizona shortly after they had been bought. The 

agents also knew by the end of December 2009 that the investigation’s top 

subject, Manuel Celis-Acosta, was in contact with targets of a DEA Mexican 

drug trafficking investigation to arrange for the purchase and delivery of 

firearms. 

The conduct agents documented and observed to this point of the 

investigation exhibited each of the straw purchasing indicators we described in 

Chapter Two, including sales paid for in cash, multiple sales to a purchaser 

who appears on past gun traces, sales of five or more firearms to a single 

buyer, sales of multiple firearms at the same FFL on the same day, trace 

requests with a “short time-to-crime,” and multiple sales of guns considered 

“weapons of choice” for drug trafficking organizations. In addition, the agents 

had information about individuals who appeared to be financing and 

coordinating the delivery of at least some of the firearms purchased. 

We asked Newell, Voth, MacAllister, and other witnesses who supported 

Operation Fast and Furious why under these circumstances ATF did not seek 

to arrest any of the subjects, or detain or interview them in order to develop 

additional evidence, as well as why ATF agents did not seize any of the firearms 

the subjects were purchasing. These witnesses told us that the goal of the 

investigation was to dismantle a firearms trafficking network and not simply 

eliminate some straw purchasers, and that to accomplish that goal they 

adopted an approach that was nontraditional for ATF. As detailed below, the 

witnesses described several factors – legal, tactical, and strategic – that they 

stated contributed to this approach. 

However, for reasons discussed in our analysis, we found that the 

decision of ATF and the U.S. Attorney’s Office to not take action against straw 

purchasers earlier in the investigation was primarily the result of tactical and 

strategic decisions by the agents and prosecutors, rather than because of any 

legal limitation on their ability to do so. 

1. Corpus Delicti 

Several ATF management officials and agents told us that the 

investigative approach in Operation Fast and Furious was taken in part 
135 

because of a legal issue known as “corpus delicti.” The “corpus delicti” issue is 

a short-hand way to describe an apparent dispute between the U.S. Attorney’s 

Office and ATF regarding the evidence that was required to prosecute a straw 

purchasing case under 18 U.S.C. § 924(a)(1)(A). ATF agents told us that they 

believed the U.S. Attorney’s Office, particularly its Phoenix office, would not 

prosecute such a case unless the firearm was available as evidence during the 

trial. ATF agents therefore believed that if the firearm was not recovered during 

the investigation, or if it was recovered but could not be obtained by the agent 

(as with recoveries in Mexico), the U.S. Attorney’s Office would decline the case. 

As described more fully below, prosecutors from the U.S. Attorney’s Office 

agreed that corpus delicti was a legal issue that they grappled with, but denied 

that they would decline a case simply because the gun was not available for 

trial. Indeed, as noted previously, Hurley referenced the issue in his e-mail on 

December 1 to Burke about the status of the investigation but told Burke that 

he and his Section Chief, Michael Morrissey, had assured ATF that the office 

would “find creative ways to overcome” the issue. 

“Corpus delicti” is a Latin term that means “body of the crime” and is 

defined in the law as “the fact of a crime having actually been committed.” The 

current doctrine of corpus delicti holds that a defendant’s admission or 

confession of a crime is not by itself sufficient to establish beyond a reasonable 

doubt that the crime occurred.110

Hurley told us that the application of corpus delicti to straw purchaser 

cases was first raised by another prosecutor within the U.S. Attorney’s Office in 

approximately April 2007. In that instance, agents had obtained an admission 

from a defendant that he was not the actual purchaser of the firearm, but the 

agents did not have the gun the defendant had purchased. The prosecutor 

questioned whether the defendant’s admission coupled with the Form 4473 

documenting the purchase was sufficient to file charges. 

 To satisfy corpus delicti, the government 

also must provide some independent corroboration to demonstrate a crime 

actually was committed. 

An appellate attorney in the office quickly researched the issue and, in a 

brief e-mail, wrote that a confession coupled with the Form 4473 was not 

enough. The appellate attorney concluded, “it seems to me that evidence 

showing falsity (i.e., that the person doing the purchase is not in fact the real 

purchaser) is also necessary.” 

 

110 See, e.g., United States. v. Delgado, 545 F.3d 1195, 1206 (9th Cir. 2009), citing 

United States. v. Corona–Garcia, 210 F.3d 973, 978 (9th Cir. 2000) (“Although the government 

may rely on a defendant's confession to meet its burden of proof, it has nevertheless been long 

established that, in order to serve as the basis for conviction, the government must also adduce 

some independent corroborating evidence.”)
136 

This guidance caused Hurley to adopt his own informal policy that he 

would not prosecute a false statements case under Section 924(a)(1)(A) if the 

only evidence was an admission by the defendant and the Form 4473 

documenting the firearms purchase. According to Hurley, he never required an 

agent to recover the actual firearm as evidence. However, Hurley said, if the 

agent did not have the firearm, the agent had to find some other evidence to 

corroborate the admission. For example, Hurley told the OIG, an agent could 

search a defendant’s residence – preferably within days of a purchase – under 

the theory that the firearms’ absence corroborated the defendant’s admission 

that the guns were bought for someone else. Moreover, Hurley said that the 

firearm need not be physically present in the courtroom. Hurley told us that if 

the firearm was in Mexico, the agent could view it and photograph it and then 

testify about it at trial. 

MacAllister told us that she attended a conference in early 2009 where 

the corpus delicti issue was discussed as part of a case study. She said that 

some of the prosecutors involved in the case study believed that the Form 4473 

could be used to satisfy corpus delicti, and that additional evidence was not 

necessary. MacAllister said that a prosecutor from Arizona was also present at 

this conference, shared her experience prosecuting cases in Phoenix, and noted 

that the Form 4473 alone was insufficient in Arizona. 

We interviewed a prosecutor in the Arizona U.S. Attorney’s Office who 

told us that he was responsible for most of the office’s firearms prosecutions 

between 2003 and 2005. He told us that in his experience it was sufficient to 

prosecute a case with only the defendant’s admission and the testimony of an 

employee from the FFL that made the sale along with the Form 4473. The 

prosecutor said that after he stopped prosecuting firearms cases in 2005, he 

received calls from ATF agents who expressed frustration with Hurley and the 

perception that the evidentiary threshold required to prosecute firearms 

violations had been raised. 

According to several ATF agents, the U.S. Attorney’s Office had for 

several years declined to prosecute straw purchaser cases because of its 

position that the corpus delicti rule was satisfied only if the firearms were 

recovered and physically available for trial. The Division Counsel for ATF’s 

Phoenix Office told us that in late 2009, after receiving repeated complaints 

from agents, SAC Newell asked him to address the issue with the U.S. 

Attorney’s Office. The Division Counsel spoke to Hurley and drafted a 

memorandum in February 2010 to Hurley’s supervisor, Michael Morrissey, who 

was chief of the section in the U.S. Attorney’s Office with primary responsibility 

for prosecuting firearms cases. The memorandum described ATF’s view of the 

law of corpus delicti and the types of evidence it believed satisfied the elements 

of a straw purchasing case under Section 924(a)(1)(A). The memorandum 

disputed the position that the actual firearm had to be recovered or produced 

at trial in order to prosecute such a case. The memorandum also stated that if 
137 

a firearm was recovered in Mexico, it should be sufficient under the federal 

rules of evidence for an agent to personally photograph the firearm and be 

available to testify at any trial. 

Representatives from the two offices met in May 2010 to discuss the 

issue. The meeting was attended by the ATF Division Counsel and Criminal 

Chief Pat Cunningham and Section Chief Morrissey from the U.S. Attorney’s 

Office, as well as Hurley. The representatives from the U.S. Attorney’s Office 

told us the meeting demonstrated that the offices were already largely in 

agreement about what the doctrine of corpus delicti required. Morrissey said 

that he agreed with the ATF Division Counsel that the actual firearm was not 

required to prosecute a straw purchaser case. From Morrissey’s perspective, 

whatever dispute existed with ATF was settled by the May 2010 meeting. 

The Division Counsel told us that after the May 2010 meeting the offices 

largely agreed on what the doctrine of corpus delicti required, and that the 

issue had been resolved. However, he said that the offices were far apart before 

the meeting, and that Morrissey told him after the meeting that the U.S. 

Attorney’s Office had previously applied corpus delicti to straw purchaser cases 

too restrictively. 

We found that for purposes of understanding Operation Fast and 

Furious, the corpus delicti issue had limited relevance to the question of why 

there were so few seizures and no arrests during the course of the 

investigation. As we discuss in our analysis, ATF and the U.S. Attorney’s Office 

undertook a strategy that deferred approaching or taking enforcement action 

against individuals in order to develop evidence through wiretaps that would 

enable dismantling the entire trafficking ring. Thus, even in those situations 

where weapons were recovered and there was no corpus delicti issue, such as 

the seizure on December 8 by the Douglas police of firearms purchased by 

Steward earlier that day and other seizures we describe later in this report, the 

government did not pursue a straw purchaser case. In other words, even if 

ATF’s asserted historical frustration with the U.S. Attorney’s Office’s position 

on corpus delicti contributed to the decision to pursue a nontraditional 

strategy in Operation Fast and Furious, the issue does not explain the 

adherence to the strategy as the case developed and the evidence of substantial 

trafficking activity swiftly mounted. 

2. Risk that Confronting or Arresting Straw Purchasers or 

Seizing Firearms Would Harm the Broader Investigation 

As noted above, all of the indicators for straw purchasers were present 

from the outset of Operation Fast and Furious for many subjects, but ATF and 

the U.S. Attorney’s Office continued the investigation without taking overt 

enforcement action against any of the subjects. 
138 

Most ATF agents we interviewed took the position that an agent who has 

probable cause to believe an individual is a straw purchaser engaged in 

firearms trafficking is duty bound to promptly seize the guns bought by that 

individual, even if the purchaser is not arrested at the time of the seizure.111 

These agents also told us that this technique is effective in stopping gun 

trafficking, partly because straw purchasers do not have criminal records and 

are often willing to cooperate with law enforcement by identifying other 

individuals involved in the trafficking or by working as an informant in order to 

avoid being criminally prosecuted. Further, these agents told us that in 

situations where an agent has only reasonable suspicion to believe an 

individual is a straw purchaser engaged in firearms trafficking, rather than 

probable cause to arrest or to seize the firearm, the agent should approach the 

individual and ask about the firearms that were purchased. This tactic is 

commonly referred to as “knock and talk.” According to these agents, even if 

the individual does not admit to straw purchasing, the individual is less likely 

to make straw purchases again if there is reason to believe that law 

enforcement is aware of the activity.112

Other witnesses, including Newell, Gillett, Voth, and MacAllister, told us 

that approaching suspected straw purchasers is ineffective as an investigative 

tactic in dismantling gun trafficking organizations, particularly in the State of 

Arizona. According to these witnesses, straw purchasers have become 

increasingly sophisticated about law enforcement and when confronted with 

questions about firearms they have purchased are unlikely to admit they are 

straw purchasers. Instead, they are more likely to tell law enforcement agents 

that the guns are theirs and that they use them for activities such as hunting 

or shooting in the desert.113

 

111 ATF’s policy on “Weapons Transfers” in effect during Operation Fast and Furious 

described agents’ ability to seize firearms when they observed transfers based on “probable 

cause” to believe a criminal violation had occurred, and not on whether there was a 

prosecutable case.

 The most probable result, therefore, of confronting 

straw purchasers to seek admissions, according to these agents, is that the 

straw purchasers deny their involvement and the trafficking organization is put 

112 We note that in Operation Fast and Furious, given all of the evidence that was 

available to the agents by January for at least some of the subjects, such as the largest volume 

purchasers such as Steward, we believe it was unnecessary for ATF agents to obtain a 

confession in order to prosecute those individuals.

113 As described earlier, MacAllister told us she believed the December 8, 2009, stop of 

Steward during which he told the police officers the firearms in the vehicle were his, validated 

ATF’s investigative approach in Operation Fast and Furious of not confronting subjects. 

MacAllister also told us that Steward maintained his denials even when he was interviewed by 

ATF agents on January 25, 2011, shortly after his arrest.
139 

on notice that law enforcement is aware of its activities. Once put on notice, 

the organization is likely to move its operations to new straw purchasers and 

possibly different FFLs, and the trafficking of firearms continues unabated and 

undetected. 

These ATF agents also stated that, even when an agent has probable 

cause to seize firearms and make an arrest, a sophisticated subject will take 

his chances with the minor punishment typically imposed for false statements 

instead of providing information about the individuals with whom he is 

working. Moreover, these agents said that when straw purchasers are willing 

to cooperate, they frequently know little, if anything, about the individuals for 

whom they are working. 

For these reasons, witnesses supportive of Operation Fast and Furious 

told us that in their view the more effective approach, and the one more likely 

to have a significant effect on firearms trafficking, is to investigate suspected 

straw purchasers covertly in order to identify through surveillance and other 

techniques additional subjects – especially those who are funding the 

purchases and transporting the firearms – toward the goal of dismantling the 

entire organization. This was the approach adopted in Operation Fast and 

Furious and the tactics included gathering telephone records and financial 

information, conducting background checks, obtaining documentary evidence 

of past purchases, placing surveillance cameras at select locations, conducting 

physical surveillance, leveraging cooperation from FFLs, and most significantly, 

conducting court-authorized electronic surveillance. Witnesses told us that 

conducting the investigation in this manner was a tactical decision and that it 

differed from ATF’s traditional approach of automatically confronting subjects 

with the hope of obtaining admissions. 

The adherence to this tactical decision failed to adequately consider the 

risk to public safety. As outlined below, it had the effect of allowing individuals 

who were known straw purchasers, and who we believe could have been 

arrested, to continue to purchase substantial numbers of firearms even though 

agents knew that many of the firearms were being transported to Mexico by 

violent drug trafficking organizations, and were being recovered at crime scenes 

in the United States and Mexico. We found ATF and the U.S. Attorney’s Office 

failed to take adequate measures to minimize the risk to public safety as it 

conducted the Operation Fast and Furious investigation. 

3. Challenges in Prosecuting Non-Prohibited Purchasers 

We also were told that a principal challenge faced by prosecutors and 

agents in Operation Fast and Furious was the fact that the subjects identified 

early in the investigation were not prohibited under federal law from 

purchasing or possessing a firearm. It is legal for a non-prohibited individual 

in Arizona to purchase an unlimited number of firearms from an FFL at any 
140 

time. It also is legal for a non-prohibited person to pay for firearms in cash and 

to then transfer, sell, or barter those firearms to a non-prohibited third party. 

Hurley told us that the challenge in a straw purchasing case under 18 U.S.C. 

§§ 922(a)(6) and 924(a)(1)(A) – the statutes commonly used against suspected 

straw purchasers – is to develop evidence demonstrating that at the time the 

firearms were purchased, the subject was not buying them for himself. As 

stated by Hurley’s supervisor, “[p]roving the inner workings of a potential 

defendant’s state of mind at the time of purchase, without a confession by a 

defendant, is incredibly difficult.” 

The same challenge exists with respect to forfeiture actions under 18 

U.S.C. § 924(d), a federal law that authorizes the government to seize and 

forfeit a firearm for, among other things, a knowing violation of Sections 

922(a)(6) or 924(a)(1)(A). See 18 U.S.C. § 924(d)(1). An agent must have 

probable cause to believe a criminal violation has occurred in order to arrest an 

individual or seize that individual’s firearm. With respect to an arrest, the 

government then has the burden of proving the alleged violation beyond a 

reasonable doubt. With respect to most forfeitures, including those predicated 

on a knowing violation of Sections 922(a)(6) and 924(a)(1)(A), the government 

has the burden of proving the alleged violation by a preponderance of the 

evidence. 

According to Voth and MacAllister, the evidentiary threshold required by 

the U.S. Attorney’s Office to establish probable cause with respect to straw 

purchasers who were not prohibited parties was a contributing factor in ATF’s 

decision not to arrest subjects or seize firearms early in Operation Fast and 

Furious. Voth told us that based on his experience before coming to Phoenix in 

2009, he believed the circumstantial evidence gathered by the end of December 

– the volume of guns purchased, the connections among the straws, the 

recoveries of firearms in Mexico, the executed Form 4473s – was sufficient to 

seize guns from some subjects and even consider bringing charges against 

them. According to Voth, Hurley’s position was that additional evidence was 

needed to demonstrate that the purchasers’ actual intent at the time of the 

sales was to buy the guns for third parties. Voth said Hurley told him that the 

fact of recoveries in Mexico was not useful because of the corpus delicti issue, 

and a subject’s historical purchasing activity could not be used to prove that a 

future purchase was unlawful. 

MacAllister told us that based on her experience as an agent in Phoenix 

and in working with Hurley, she believed an admission was required for 

establishing probable cause to seize firearms where the subjects were not 

prohibited parties. MacAllister said evidence such as recoveries in Mexico and 

the subject’s previous purchasing activity can be considered but are not on 

their own a sufficient basis for seizing subsequent purchases. Thus, for 

example, MacAllister said she did not believe there was probable cause to seize 

the 20 AK-47 style rifles Moore purchased from FFL1 on December 3, 2009, 
141 

even though MacAllister knew that Moore had purchased 61 AK-47 style rifles 

the previous month and even though ATF agents saw Moore transfer the guns 

to unknown third parties. According to MacAllister, an admission from Moore 

was needed before the guns could be seized.114

MacAllister, however, said that she made a tactical decision early in the 

investigation not to approach subjects to seek admissions, despite her belief 

that a seizure required a confession. She told us this was based on her 

experience that approaching a subject like Moore would not have advanced the 

goal of the investigation to identify additional conspirators in the trafficking 

network, both because approaching the suspect could have put the network on 

notice that law enforcement was aware of its activities and because a suspect 

like Moore would have been unlikely to admit that he illegally purchased the 

firearms. 

Hurley told the OIG that he recalled discussing probable cause with 

MacAllister early in the investigation and told her then that a mere transfer of 

firearms, without more, from the purchaser to someone else – even shortly after 

the purchase – was not enough to establish probable cause where neither party 

was prohibited by law from buying or possessing the firearms. But Hurley said 

he did not advise MacAllister or others whether they had probable cause to 

seize weapons at times such as the December 3, 2009, purchase by Moore. 

According to Hurley, his discussions with MacAllister as the case developed 

focused on whether there was sufficient evidence to forfeit firearms at trial, and 

not the distinct question of whether the agents had enough probable cause to 

seize them. Hurley said the discussions about evidence concerned how to 

build the investigation into a prosecutable case. 

We asked Hurley whether he felt the evidentiary obstacles ATF agents 

described to us with respect to non-prohibited purchasers, as well as the 

corpus delicti issue described earlier, made it less likely that agents would 

approach individuals they suspected of straw purchasing to seek admissions, 

and use that as a basis to seize firearms. Hurley replied, “[t]hat’s one of those 

questions that I think winds up being more the agent’s lane of traffic than 

ours.” Hurley said that while his role was to give advice about how to seize 

guns without violating the Constitution, the agents’ role was to make a tactical 

decision about whether or not to approach a suspected straw purchaser. 

Hurley told the OIG that he deferred to the agents on whether to develop 

evidence by confronting individuals or conducting surveillance. 

 

114 Several ATF agents we interviewed told us that under circumstances like these they 

felt they had probable cause to seize the firearms without an admission. We agree with these 

agents and, as discussed in the analysis section of this chapter, believe there was sufficient 

probable cause to seize firearms in Operation Fast and Furious considerably earlier than when 

agents actually did.
142 

4. Department and ATF Firearms Trafficking Strategy 

In Chapter Two we summarized several Department and ATF efforts to 

combat firearms trafficking to Mexico that some witnesses told us influenced 

the conduct of Operation Fast and Furious. These included the publication in 

April 2009 of OCDETF guidelines stating that firearms trafficking investigations 

were eligible for OCDETF designation and funding; the establishment in August 

2009 of a Phoenix OCDETF Strike Force; the establishment in October 2009 of 

Group VII; and the issuance in January 2010 of the Department’s “Strategy for 

Combating the Mexican Cartels” memorandum.115

As noted above, the stated goal in Operation Fast and Furious was to 

dismantle an entire firearms trafficking network, not just arrest individual 

straw purchasers. As Hurley stated in a January 5, 2010, memorandum to his 

direct supervisor, Michael Morrissey, he and the agents wanted to develop a 

case against the “hub” of the network so that the “spokes” could not simply be 

replaced as needed and continue to traffic firearms. Voth described the focus 

to us as “short term versus long term,” meaning the investigation sought to 

“take off the people responsible for creating the straw purchasers as opposed to 

the actual straw purchaser[s].” According to Voth and other witnesses, this 

approach, if successful, would serve the “greater good” by dismantling an 

organization that trafficked firearms to Mexico, instead of simply charging 

straw purchasers who could be readily replaced by others unknown to law 

enforcement. 

In short, these and other witnesses told us that they believed the 

organization-level approach adopted in Operation Fast and Furious was both 

consistent with public safety and motivated by and consistent with the firearms 

trafficking strategy emphasized by the Department and ATF in 2009 and 2010. 

We disagree, and for reasons described in the analysis section of this chapter, 

found that the manner in which Operation Fast and Furious was conducted 

failed to adequately consider the public safety, and also do not believe that the 

policy memoranda cited above can be fairly read as an endorsement of how the 

investigation was conducted. 

 

115 Witnesses also cited the OIG’s November 2010 report on ATF’s Project Gunrunner 

and its recommendation that ATF develop more complex conspiracy cases against higher level 

gun traffickers and other conspirators. A draft of this report was provided to ATF in September 

2010. In light of the timing of this report, it could not have influenced how ATF and the U.S. 

Attorney’s Office conducted Operation Fast and Furious – the case began on October 31, 2009, 

and ATF considered the investigative phase of the case completed by September 2010. 

Further, the OIG’s report did not recommend or describe any specific strategies or tactics 

agents could use to develop more complex investigations.
143 

H. The Decision to Pursue a Wiretap and the Meeting Between 

ATF and the U.S. Attorney’s Office on January 5, 2010 

Several witnesses, including Newell, Gillett, Voth, MacAllister, and 

Hurley, identified one or more of the factors described above as contributing to 

the decision that a wiretap would be the most effective technique for obtaining 

evidence sufficient to dismantle the Celis-Acosta firearms trafficking group. 

This desire to use a wiretap reflected what we found to be the ATF and U.S. 

Attorney’s Office’s consistent focus on obtaining evidence about the scope of 

the trafficking organization, a focus that we concluded gave inadequate 

attention to the public safety consequences of this longer term approach 

because it did not include reassessments of the state of the evidence as the 

case progressed to consider whether any overt enforcement action should be 

taken. 

We found that from the earliest stages of the investigation, there was a 

desire by investigators to use a wiretap to develop the case despite the 

substantial evidence that had been gathered. Before reporting to Phoenix in 

December 2009, Voth stated in multiple e-mail communications his interest in 

using a wiretap in a Group VII investigation. Voth also told us that he recalled 

the topic was discussed shortly after he arrived in Phoenix during a meeting he 

attended with Hurley and MacAllister in the context of whether using a wiretap 

might have made one of MacAllister’s earlier cases prosecuted by the State 

Attorney General’s Office more successful. Other documents and interviews 

revealed that Group VII contemplated using a wiretap in Operation Fast and 

Furious within several weeks of the case being initiated and agents’ 

observations of what they believed was a firearms trafficking network. 

Indeed, on January 4, 2010, the day before a status meeting between 

ATF and the U.S. Attorney’s Office, Voth provided Gillett a draft briefing paper 

that stated, “[o]ur goal is to secure a Federal T-III audio intercept to identify 

and prosecute all of the tentacles of this larger organization[.]” The briefing 

paper also stated that although the group of straw purchasers that had been 

identified so far was significant, it did not represent “the command and control 

elements of a Mexican DTO [drug trafficking organization]” and arresting these 

individuals “is not going to disrupt or dismantle the transportation and 

distribution cells of the organization, nor is it most likely going to lead to the 

prosecution of the leaders of the cartels or their principal facilitators.” 

According to the briefing paper, the strategy was “to allow the transfer of 

firearms to take place in order to further the investigation and allow for the 

identification of additional coconspirators who would continue to operate and 

illegally traffic firearms to Mexican DTO producing more armed violence along 
144 

the Southwest Border.” This language closely tracked the language in ATF’s 

firearms transfer policy described in Chapter Two.116

Representatives from ATF and the U.S. Attorney’s Office met on January 

5, 2010, and agreed to seek authority for a wiretap. The meeting was attended 

by ASAC Gillett, Group Supervisor Voth, case agent MacAllister, and AUSA 

Hurley. Hurley summarized the meeting in a memorandum dated the same 

day to his supervisor, Mike Morrissey, and Voth added a summary of the 

meeting to the draft briefing paper described above, which he provided to SAC 

Newell and was dated January 8. 

Hurley’s memorandum and ATF’s briefing paper each summarized the 

evidence gathered in the case to date, including the identification of CelisAcosta as the center of the trafficking network, the substantial numbers of 

firearms purchased, the large number of recoveries in the United States and 

Mexico, the connections among the subjects, and the DEA information showing 

a connection to Mexican drug trafficking. 

According to both documents, representatives at the January 5 meeting 

reviewed the evidence and determined that there was not yet a prosecutable 

case against any of the subjects, and that the government would seek a federal 

court order for a wiretap. Hurley told us that ATF did not believe it had enough 

evidence at that time to prosecute the Celis-Acosta group and that based on 

what ATF presented, he agreed with that assessment. Hurley said ATF 

presented a sufficient need for a wiretap and because Hurley was assigned to 

the case, he agreed to pursue one. Hurley also said that he thought the 

wiretap was the best investigative tool to identify the larger players in the 

conspiracy, but that he did not think a wiretap would be appropriate for 

developing a case against just the first-level straw purchasers. 

Morrissey provided Hurley’s January 5 memorandum to U.S. Attorney 

Burke that day. In an e-mail forwarding the memorandum, Morrissey told 

Burke that the investigation was a “promising guns to Mexico case (some 

weapons already seized and accounted for)” and the ATF Phoenix Field Division 

agreed with “our strategy” to not simply conduct a small straw purchaser 

investigation, but that “ATF headquarters may want to do a smaller straw 

purchaser case.” Morrissey recommended, “[w]e should hold out for the bigger 

 

116 ATF Order 3310.4B, Section 148(a)(2) provided where special agents were aware of, 

observed, or encountered deliveries or transfers of firearms, “immediate intervention may not 

be needed or desirable, and the special agent may choose to allow the transfer of firearms 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.” Actions taken under Section 148(a)(2) did not 

require supervisory approval.
145 

case, try to get a wire, and if it fails, we can always do the straw buyers.” 

Burke replied, “Hold out for bigger. Let me know whenever and w/whomever I 

need to weigh in.” We found no evidence that Burke or Morrissey questioned 

the claim in the memorandum that there was not yet a prosecutable case 

against, at a minimum, the most prolific straw purchasers, or raised any 

concerns about the risk to public safety posed by the government continuing to 

allow the traffickers to purchase large volumes of firearms. 

SAC Newell reported the results of the January 5 meeting to Deputy 

Assistant Director McMahon at ATF Headquarters in an e-mail that same day. 

Newell stated that the U.S. Attorney’s Office wanted to proceed with electronic 

surveillance before conducting any “overt investigative activity,” and that “they 

agree that right now we have very little to prosecute especially considering the 

issues with prosecuting straw purchasers in the State and 9th Circuit.” Newell 

stated that “[e]ven though I don’t like it I have to agree and we are doing 

everything possible to slow these guys down.”117

ATF Phoenix’s January 8 briefing paper, which Deputy Assistant Director 

(DAD) McMahon received as well, noted that “our strategy is to allow the 

transfer of firearms to continue to take place, albeit at a much slower pace,” 

and that the strategy was “in compliance with ATF [§§] 3310.4(b) [sic] 

148(a)(2).” The briefing paper included the statement, similar to the one in 

Newell’s e-mail to McMahon on January 5, that there had been successful 

efforts since early December to “slow down” the pace of purchases and that 

these would continue, “but not to the detriment of the larger goal of the 

investigation.” The briefing paper also said that the purchasing activity from 

September to December 2009 “defied the ‘normal’ pace of procurement” by 

other trafficking groups, and that this ‘blitz’ created a situation where 

measures had to be enacted in order to slow this pace down in order to perfect 

a criminal case.” 

 We found that despite 

Newell’s statement to McMahon that he “didn’t like it,” the decision was 

consistent with the approach taken in the case by ATF before the January 5 

meeting, that is, deferring any overt action against first-line straw purchasers 

in order to build a case against the larger organization. Additionally, as with 

Newell’s statement in his January 13 e-mail to McMahon following the El Paso 

seizure (referenced above), we did not find any basis for Newell’s assertion that 

ATF was “doing everything possible to slow these guys down.” None of the ATF 

agents we interviewed identified any steps taken at this time to significantly 

disrupt the gun purchasing activity. 

 

117 In Chapter Five, we describe McMahon’s and other ATF Headquarters officials’ 

knowledge of Operation Fast and Furious.
146 

We asked Newell and Gillett what efforts ATF was making at this stage in 

the investigation to slow down the pace of purchases. They told us that they 

understood this referred to instances where agents requested FFLs to delay the 

delivery of firearms to subjects so that agents could be in place to conduct 

surveillance. Neither Newell nor Gillett, however, were aware of any efforts to 

slow the actual purchasing activity, and Voth and MacAllister told us that they 

too were not aware of any such efforts.118

We also asked witnesses who attended the January 5 meeting, and 

others who supported how Operation Fast and Furious was conducted, 

whether there was any discussion about the public safety aspects of the case, 

namely whether ATF had identified but intended to defer disrupting a group of 

individuals responsible for purchasing hundreds of weapons, some of which 

had already been recovered in the United States and in Mexico. Witnesses did 

not identify specific discussions about public safety, but rather told us that 

they believed the public safety was best served by the approach taken in 

Operation Fast and Furious. 

 In addition, Hurley told us that he 

did not recall any conversations with agents about being more aggressive with 

subjects in order to slow the purchasing activity. Newell told us that it was not 

his intention to convey that ATF was slowing the actual number of purchases. 

In general, these witnesses said the comparatively small number of 

firearms they believed could be seized from a few individual straw purchasers 

was a fraction of the firearms that they thought could be prevented from being 

trafficked to Mexico in the future if they were able to dismantle the organization 

for which the straw purchasers were working. MacAllister stated, “I think 

taking down the organization, public safety-wise lends itself to a bigger, a 

larger effect in public, for public safety versus taking, trying to look at one 

straw purchaser, or trying to prosecute one straw purchaser.” Voth stated, 

“[b]ut as far as, as the public safety . . . there’s a couple of different things. 

One is, if we take off, you know, any one straw purchaser because they bought 

five guns on this day, let’s say, but the organization still exists, and they’re all 

buying five guns, you know, the organization is still sending many guns down 

the range. Or, you know, we can work the entire organization, we’re [] going to 

have a bigger, bigger benefit.” 

 

118 The first draft of the January 8, 2010, briefing paper stated that one of the 

investigative techniques being used was “[e]stablishing and maintain [sic] working relationships 

with FFLs involved in this investigation to include requesting that they ‘slow down’ their onhand inventory of AK-47 type firearms.” The final version of the briefing paper stated, “[i]t 

should be noted that since early December efforts to ‘slow down’ the pace of these firearms 

purchases have succeeded and will continue but not to the detriment of the larger goal of the 

investigation.”
147 

Both Gillett and Voth said that Hurley stated at the January 5 meeting 

that his concern was not with the firearms that were going to be purchased by 

the group during the investigation, but rather with the many more the group 

would purchase in the future if it was not shut down by a successful 

prosecution. Hurley told us that he did not recall making this or any similar 

statement. He also said that the comment did not make sense to him because 

“I wouldn’t have wanted the guns to go to Mexico for the simple, practical 

purpose that once they’re in Mexico they’re unavailable to you as evidence.” 

Gillett told us that the underlying discussion was that the firearms were going 

to be purchased by the Operation Fast and Furious subjects someplace, so 

they “might as well do it where we quasi-control it, and hopefully gather 

evidence for a successful prosecution.” 

Newell told us that his impression of the case around that time was that 

agents had identified some young individuals who were purchasing a lot of 

guns, but that there were multiple layers to the activity. He said that 

approaching these individuals risked their replacement by others unknown to 

ATF, and that it was unlikely they had information about the actual decisionmakers. According to Newell, “the idea was if we can get enough information to 

charge the organization, cut off the head of the snake, if you will,” and that “if 

we get Acosta, we get the main individuals that are actually financing or 

directing or orchestrating this, that’s what will have the lasting and biggest 

impact.” 

V. OCDETF Designation and Use of Electronic Surveillance (February 

2010 - July 2010) 

In February 2010, Operation Fast and Furious was designated an 

OCDETF investigation, and in March 2010 ATF began to conduct electronic 

surveillance of telephone numbers associated with particular subjects in the 

case. The electronic surveillance continued through the middle of August 2010 

and was supported by physical surveillance conducted by agents from Group 

VII, with substantial assistance from ATF agents detailed from other offices and 

local law enforcement officers. From ATF’s perspective, the operational phase 

of Operation Fast and Furious was coming to a close by the end of July 2010. 

In this section, we describe the process to obtain the OCDETF 

designation and the approval to conduct electronic surveillance, and 

summarize several other investigative techniques agents used in the 

investigation from February 2010 to July 2010. We also provide examples of 

surveillances conducted during this period, and describe the circumstances 

under which ATF agents began to interdict and seize firearms purchased by 

Operation Fast and Furious subjects. In addition, we highlight examples of 

surveillance where interdiction did not occur and describe agents’ explanations 

for this. 
148 

Also during this time period, significant tension and dysfunction 

developed in Group VII relating to the conduct of Operation Fast and Furious. 

We describe in this section the various explanations witnesses gave us for this 

development and how ATF management responded. 

A. Investigation Designated an OCDETF Case in February 

As we described in Chapter Two, the Department issued a memorandum 

in April 2009 stating that investigations that principally targeted firearms 

trafficking were eligible for OCDETF designation. Newell told us that, in his 

experience, ATF had not prior to this time sought this designation for its 

firearms trafficking cases and that he viewed Operation Fast and Furious as an 

opportunity to benefit from the advantages offered by an OCDETF designation. 

OCDETF is particularly useful as a funding mechanism for resource intensive 

investigations such as Operation Fast and Furious that anticipate using 

wiretaps and that will require substantial hours of physical surveillance. 

The decision to seek OCDETF designation for Fast and Furious was 

reached in December 2009. The proposal was drafted by co-case agent Tonya 

English and was reviewed at ATF by Voth and ATF’s OCDETF Coordinator for 

the Southwest Border, and at the U.S. Attorney’s Office by Hurley. We found 

no evidence that approval from ATF Headquarters or by Justice Department 

Headquarters was required or obtained. The proposal was submitted to and 

approved by the OCDETF District Committee on January 26, 2010. 

The proposal stated that the case was a joint ATF-ICE investigation, with 

part-time support from the Internal Revenue Service (IRS) and the DEA.119

 

119 The proposal provided a breakdown of the personnel committed to the investigation: 

6 full-time and 4 part-time agents from ATF; 1 full-time agent from ICE; 1 part-time agent from 

IRS; 1 part-time agent from the DEA; and 5 part-time officers from the Phoenix Police 

Department. The IRS agent assisted the financial aspects of the investigation. The DEA’s 

assistance included providing a wire room facility and linguists for ATF’s wiretaps, and having 

an agent available to query DEA databases with telephone numbers submitted by ATF. The 

Phoenix Police Department assisted with surveillance. The ICE agent was the only non-ATF 

agent assigned to Operation Fast and Furious on a full-time basis.

 The 

case prosecutor was identified as Emory Hurley. The proposal included a 

description of the straw purchasing activity that caused ATF to open the 

investigation, the evidence linking the Celis-Acosta firearms trafficking 

organization to drug trafficking, the impact the disruption or dismantlement of 

the Celis-Acosta organization would have on firearms and drug trafficking, and 

the case objectives and anticipated investigative techniques. The information 

about the drug trafficking organization that DEA was investigating and its 

connection to ATF’s straw purchasers was based on information provided to 

ATF by the DEA. 
149 

The proposal also stated that “ATF agents believe that a Phoenix-based 

firearm trafficking group is actively purchasing firearms using bulk narcotics 

proceeds. The firearms are then being trafficked into Mexico using non-factory 

compartments in various vehicles through various Ports of Entry (POE’s) in 

Arizona and Texas.” Voth told us the statement about how the firearms were 

being transported into Mexico was not based on anything observed to this point 

in Operation Fast and Furious; rather, it was based on ATF’s “general 

assumption on the border that guns are being smuggled into Mexico.” The 

proposal also stated that the investigation had the potential to significantly 

reduce the trafficking of firearms and narcotics proceeds through Phoenix, and 

that the goal of the investigation was to identify and arrest members of the 

targeted drug trafficking organization and seize the group’s assets. The 

proposal identified the various seizures that had taken place to date, but did 

not state that ATF had no role in those seizures or that ATF’s strategy, as 

described in the January 8 briefing paper, was to allow the transfer of firearms 

to take place without taking enforcement action. As we described earlier, the 

U.S. Attorney’s Office, a partner to the OCDETF proposal, concurred with the 

strategy of pursuing a longer term investigation to dismantle the trafficking 

organization and deferring the smaller straw purchaser cases. 

The proposal for Operation Fast and Furious was one of several 

presented to the OCDETF Southwest Border Regional Committee in early 

February 2010. English gave a presentation that provided an overview of the 

case, including a general description of the targets of the investigation, which 

included Celis-Acosta and several straw purchasers, and the organizational 

structure. The presentation also included a summary of ATF’s investigation to 

date and described several recoveries in Mexico of firearms purchased by ATF 

subjects. The presentation stated that nearly $500,000 had been spent by 

subjects to date and also identified the number of firearms purchased by each 

subject. Like the proposal, the presentation did not include any information 

about ATF’s strategy with respect to interdictions. 

The review committee, comprised of representatives from the U.S. 

Attorney’s Office, ATF, the DEA, the FBI, ICE, the IRS, the USMS, and the 

Arizona Department of Public Safety, formally approved Operation Fast and 

Furious as an OCDETF investigation on February 4, 2010. The ATF 

representative on the committee was ASAC Gillett. By the end of the month, 

ATF submitted its first OCDETF funding request for the investigation.120

 

120 According to its Deputy Director, Thomas Padden, the Executive Office of OCDETF 

at DOJ Headquarters did not have a role in authorizing Operation Fast and Furious as an 

OCDETF investigation. He told us that the Executive Office did not make any authorizations or 

approvals on the case.
150 

As required for all OCDETF cases, ATF submitted interim reports to the 

Southwest Border Regional Committee every six months that described the 

status and progress of the case, including the number of straw purchasers 

identified as subjects, the number of firearms recovered in the United States 

and Mexico connected to the investigation, and any significant investigative 

actions (such as notable electronic surveillance interceptions and seizures). 

The interim reports did not identify the total number of firearms purchased by 

the subjects during the investigation. The last interim report reviewed by the 

OIG was submitted in September 2011. Operation Fast and Furious remains 

an active OCDETF case. 

By the time Operation Fast and Furious was approved as an OCDETF 

case in February 2010, Group VII had already physically moved its operations 

from ATF to the offices of the Phoenix OCDETF Strike Force. Neither this move 

nor the OCDETF designation changed how Group VII conducted Operation 

Fast and Furious, with the exception that the investigative activities were 

funded by the OCDETF program. 

B. Applications and Orders for Tracking Devices and Electronic 

Surveillance 

During the same time period in which English was drafting and 

presenting the OCDETF proposal for Operation Fast and Furious, MacAllister 

was drafting affidavits in support of the government’s applications to federal 

court for authorization to place a tracking device 

particular Fast and Furious subjects, as well as separate applications to 

conduct electronic surveillance of the communications of particular subjects. 

1. Tracking Devices Used in January Through March 

Federal law authorizes the government to install mobile tracking devices 

to follow the movement of a person or object. 18 U.S.C. § 3117. The U.S. 

Attorney’s Office filed applications in January, February, and March 2010, 

seeking court authorization 

 The 

applications stated that there was probable cause to believe particular 

individuals would commit criminal offenses involving false statements in the 

acquisition of firearms (18 U.S.C. §§ 922(a)(6), 924(a)(1)(A)), unlicensed dealing 

in firearms (18 U.S.C. § 922(a)(1)(A)), and the unlawful export of munitions (18 

U.S.C. § 2778). The applications also stated that there was probable cause to 

believe that the installation of the tracking device 

 would lead to evidence of the criminal violations and 

identification of other individuals and locations involved in the activity. 

Each application included an affidavit from MacAllister that described 

the target individuals’ past firearms purchases, information about any 
151 

recoveries or seizures of the purchased firearms, and information about the 

individuals’ reported income. For example, the January affidavit stated that 

Steward had purchased 240 firearms for approximately $125,000 from three 

different FFLs since December 2009, that there had been multiple short timeto-crime recoveries of some of these firearms, and that according to the Arizona 

Department of Economic Security, Steward had a reported income of $4,497 

for the first quarter of 2009. Similar information was stated with respect to 

Patino, Moore, Chambers, and Celis. The applications also described recorded 

telephone conversations some of these subjects had with FFL1 about making 

arrangements to purchase firearms. The court approved each of the 

government’s three applications.121

MacAllister told us the tracking device was intended to help ATF 

determine how firearms were being transported to Mexico. One of the principal 

obstacles to using the tracker was the fact that 

 

 ATF overcame this obstacle 

 

 and as described below, one tracker led to 

the sole ATF-initiated seizure in the investigation before June 2010. 

 

 

 

 

 

 

 

ATF was apparently aware of the trackers’ limitations. When Newell 

asked Gillett for an update on the February tracker (described further below), 

he noted that he had told ATF Headquarters that there was plenty of 

surveillance but that 

 

 

 

 

121 ATF also used tracking devices in March 2010 on three different vehicles on at least 

three occasions. MacAllister told us the devices were helpful at times when a subject’s vehicle 

was not visible to agents, but in general the value was limited because of the limited battery life 

of the devices. Notably, the tracking device showed that Patino was traveling to El Paso and 

ATF actually conducted surveillance on two occasions, hoping to observe Patino pick up 

money. ATF would learn after the January 2011 indictment of Patino and other Operation Fast 

and Furious subjects that Patino made multiple trips to El Paso in connection with his firearms 

trafficking.
152 

 

 

The sale that led agents to the first ATF-initiated seizure came on 

February 13, 2010, when Patino purchased a .50 caliber rifle and 10 AK-47 

style rifles from FFL1. 

 

 

 Agents followed to a 

residence in Phoenix, where it remained for several days. On February 20, 

2010, was followed to Tucson, then Selis, Arizona, and finally onto 

the Tohono O’odham Indian reservation. There, the a 

vehicle that was traveling south on a road that led to the Mexican border. This 

movement was significant because the reservation straddles the border 

between the United States and Mexico and there is no border crossing station. 

According to the surveillance report, agents following the vehicle 

observed it make evasive maneuvers before stopping in front of a residence. 

Border Patrol agents made contact with the occupants – two females – who 

initially claimed they knew nothing about the vehicle. Two ATF agents from the 

Tucson office participating in the surveillance then examined the vehicle and 

seized 41 firearms, most of which were AK-47 style rifles, from inside the 

vehicle. Thirty-seven of the AK-47 style firearms had been purchased by Patino 

on four separate occasions in January and February 2010. 

Photo 4.3: Tohono O’odham Indian Reservation Seizure 

Source: ATF

The ATF Tucson agents interviewed the two occupants at the scene and 

learned that the driver had a felony record for drug smuggling. The driver told 
153 

the agents that both before and after serving time in prison she drove vehicles 

to Mexico for an individual she identified by first name. She said that on this 

occasion, she at first thought that she was transporting cash, as she had done 

many times before, but realized after she got into the vehicle that she was 

transporting firearms for the first time. The driver said the firearms were 

placed in the vehicle by an individual whose name she did not know. The 

passenger told the agents that she did not know firearms were in the vehicle 

and claimed she was traveling to Mexico to get chimichangas. 

 

 

 

 

 

 

 

 

Several days before the Tohono O’odham seizure, U.S. Attorney Burke emailed Hurley and his supervisor, Mike Morrissey, for an update on the CelisAcosta investigation. Hurley replied that 

 

 The U.S. Attorney’s Office learned about the 

February 20 Tohono O’odham seizure on February 22, when Newell sent an email to Burke and Hurley describing the circumstances surrounding a different 

seizure in Mexico unrelated to Operation Fast and Furious. In his e-mail, 

Newell also referenced the 42-firearm seizure that agents had made two days 

earlier, on Saturday, that was part of Operation Fast and Furious. Burke 

replied, “What happened last Saturday w/ the 42 AK-47s? Do we have that 

case?” Hurley responded that he had not yet heard about the seizure, but that 

if the guns were linked to Operation Fast and Furious, the case was theirs. 

Burke then replied that Hurley should contact Criminal Chief Cunningham to 

schedule a briefing for Burke by the two of them about Operation Fast and 

Furious and stated, “This is great stuff.”122

 

122 On February 26 and 27, 2010, Newell e-mailed Burke and Hurley about two large 

recovery incidents in Mexico and stated that he believed each would have firearms traced back 

to Operation Fast and Furious. In the February 26 e-mail, he stated, “FYI – big Mexican Army 

seizure last night in Sinaloa from ‘Chapo’ Guzman’s guys. Seems something big is brewing 

down there which is why there’s been such a flurry of gun purchasing activity of late in our 

area, as clearly seen in SA Hope MacAllister’s ‘Fast and Furious’ OCDETF Strike Force case.”

 As we describe below, Burke 

received a briefing in mid-March around the time the first wiretap was 

approved. 
154 

Newell separately emailed Burke later on February 22 about the status of 

Operation Fast and Furious, including that the firearms trafficking group had 

purchased about 800 weapons to date. That email was followed by a 

conversation on the same day between Newell and Burke about the case and 

Newell told Gillett and Voth in an e-mail that Burke was “taken aback” by some 

of the facts of the case, including the fact that 800 guns had been purchased 

by subjects of the investigation. In the e-mail, Newell stated he was going to 

set up a meeting with Burke to discuss the case and “several other cases I feel 

he is being mislead [sic] about.” Burke told Congressional investigators that he 

did not recall what he might have been “taken aback” about relating to Fast 

and Operation Furious and did not recall a meeting between just him and 

Newell to discuss that issue or whether he was being misled by his staff. 

As noted above, the evidence the government relied upon to obtain court 

approval for the tracking devices included historical purchasing activity, 

firearms recoveries in Mexico, and the subjects’ lack of financial resources. We 

asked Hurley whether this evidence could also have been used to establish 

probable cause to seize firearms from those same subjects. Hurley told us that 

he thought that argument could be made for subjects whose purchases fit this 

pattern. But Hurley also said the tracking devices served the tactical purpose 

of identifying where the firearms were going, where they were being kept, and 

who else was involved. In addition, Hurley said that defending the seizure of 

such firearms might from an “academic” perspective be defensible, but that at 

time in the investigation – January and February 2010 – he did not believe 

there was a prosecutable case against the purchasers. Hurley also said that he 

thought prevailing at a civil forfeiture hearing regarding such firearms would 

have been difficult because of the need to prove that at the time of the sale the 

purchaser intended to buy the firearms for someone else. 

However, Hurley also told us that the goal of the investigation was to 

arrest more than one straw purchaser, and that arresting someone even as 

significant as Patino was not going to achieve ATF’s objective of dismantling the 

organization. As we discuss further in the analysis, we concluded that it was 

that goal, and the consistent belief it would be compromised by taking overt 

action, that drove the lack of seizures and arrests. We found that the evidence 

was more than sufficient to take such action early in the investigation had ATF 

and the U.S. Attorney’s Office wanted to do so. 

2. Electronic Surveillance Begins in March 

For reasons we described in Section IV of this Chapter, ATF and the U.S. 

Attorney’s Office decided to seek a wiretap in order to prosecute the entire 

Celis-Acosta firearms trafficking organization as well as to identify how the 

purchases were being financed and how the firearms were being transported to 

Mexico. 
155 

Federal law authorizes the government to conduct electronic surveillance 

of oral communications for law enforcement purposes. See 18 U.S.C. §§ 2510-

2522. To obtain approval, the government must submit an application to a 

federal court showing that there is probable cause to believe that a particular 

“facility,” such as a cellular telephone number, is being used by subjects in 

furtherance of specified criminal violations. 18 U.S.C. §§ 2518(1)(b)(i), (iv). 

Notably, the application must describe “whether or not other investigative 

procedures have been tried and failed,” are reasonably unlikely to succeed, or 

are too dangerous to use. 18 U.S.C. § 2518(1)(c). Orders for electronic 

surveillance are issued for a period not to exceed 30 days, but can be extended 

with court permission, and surveillance must terminate when the authorized 

objectives are attained. 18 U.S.C. § 2518(1)(d)(5). 

Wiretap applications are supported by an affidavit from an agent or other 

“investigative or law enforcement officer” that sets forth the facts that establish 

the probable cause required by the statute. 18 U.S.C. § 2518(1). The affidavit 

is typically drafted by the agent and reviewed by the prosecutor assigned to the 

case. The prosecutor also is responsible for drafting the application that sets 

forth the basis for the court’s jurisdiction to authorize the electronic 

surveillance. 

An application cannot be filed in court until a Deputy Assistant Attorney 

General or the Assistant Attorney General in the Department’s Criminal 

Division approves it.123 The Department’s procedures require that each 

application and supporting affidavit, which is provided by the responsible U.S. 

Attorney’s Office, be reviewed by an attorney in the Department’s Office of 

Enforcement Operations (OEO). The U.S. Attorney’s Office for the District of 

Arizona during this time period did not have a formal process for reviewing 

draft applications to conduct electronic surveillance. One supervisor told us, 

for example, that his practice was to review the applications of relatively new 

attorneys to ensure they met the standards of the judicial district, but that he 

would not review the applications of more experienced attorneys.124

 

123 The wiretap statute provides that applications may be authorized by the Attorney 

General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney 

General, any Acting Assistant Attorney General, or any Deputy Assistant Attorney General or 

Acting Deputy Assistant Attorney General in the Criminal Division or National Security 

Division specifically designated by the Attorney General. 18 U.S.C. § 2516(1). Attorney 

General Holder has specially designated Deputy Assistant Attorney Generals in the Criminal 

Division, among others, to authorize wiretap applications. Office of the Attorney General, 

Order No. 3055-2009, February 26, 2009. We further describe in Chapter Five the Criminal 

Division’s review of the wiretap applications in Operation and Fast and Furious.

 As 

124 By memorandum dated March 19, 2012, the Department now requires that 

supervisors in U.S. Attorney’s Offices review and approve applications to conduct electronic 

surveillance before the materials are submitted to the Department.
156 

described below, the Operation Fast and Furious applications received minimal 

review in the U.S. Attorney’s Office. 

The OEO attorney assigned to handle the application coordinates with 

the prosecutor in the U.S. Attorney’s Office any necessary changes or additions 

to the affidavit. After the affidavit is put in final form, the OEO attorney 

prepares a memorandum that summarizes and analyzes the relevant facts and 

legal issues pertinent to surveillance, and that discusses the application’s 

compliance with the requirements of the statute. This memorandum is sent to 

the Deputy Assistant Attorney General who has been assigned to review the 

application, along with the agent’s affidavit and a draft approval letter.125

The review process for wiretap applications at ATF during Operation Fast 

and Furious required the relevant field division to provide the draft affidavit to 

ATF Headquarters, where it was reviewed by the Office of Chief Counsel and 

the Office of Field Operations. The Office of Field Operation’s review addressed 

administrative considerations such as whether resources were available to 

support implementation of the wiretap, and the Office of Chief Counsel’s review 

addressed the legal sufficiency of the application. Upon completion of their 

review, the Assistant Director for the Office of Field Operations would send a 

memorandum to the Assistant Attorney General for the Department’s Criminal 

Division requesting authorization to proceed with the application.

 After 

the designated Deputy Assistant Attorney General authorizes the application, 

OEO transmits to the prosecutor an authorization letter that is included with 

the application filed in federal court. According to OEO guidance, most original 

applications require approximately one week to review and process from the 

time the affidavit is received. 

126

On February 5, 2010, MacAllister provided Hurley a draft of her affidavit. 

Numerous revisions were made over the next several weeks, and the 

application and affidavit were submitted to OEO on March 4, 2010. Similar to 

the applications for the tracking devices, the wiretap affidavit provided 

 

 

 

 The affidavit also detailed 

 

 

125 Although the approval letter is in the name of the Assistant Attorney General, 

except in limited circumstances, such as with a roving wiretap, a Deputy Assistant Attorney 

General is authorized to approve the letter on behalf of the Assistant Attorney General. As a 

result, the Assistant Attorney General rarely reviews wiretap applications and generally only in 

those limited circumstances where approval by the Assistant Attorney General is required.

126 The Department eliminated this requirement in June 2010.
157 

 MacAllister stated in her affidavit that 

 

 

As we did with respect to the evidence used in support of the tracking 

device applications, we asked Hurley whether agents could have relied upon 

the evidence used in the electronic surveillance affidavits to seize firearms from 

particular Operation Fast and Furious subjects. Hurley said that the probable 

cause used to obtain the wiretap did not equate to probable cause to seize 

every gun a subject bought. Similar to his statement about the evidence 

contained in the tracking device applications, Hurley said seizures would have 

to rely on a pattern of purchasing activity that fit the conspiracy. 

With respect to the government’s need for the wiretap, the affidavit stated 

that 

 

 According to the affidavit, 

 

 

 The 

affidavit also stated that 

 

 The affidavit said that 

 

 

The affidavit also stated that 

 

 

 

 

 the affidavit stated that 

 

 127

 

127 On February 5, 2010, Voth sent a memorandum, which Newell had approved, to 

McMahon requesting authorization to seek an order for a wiretap. 

the memorandum stated, “[i]t is our belief that the interception of wire 

communication is the only investigative technique that has a reasonable likeliness to success 

[sic] in securing evidence needed to prove beyond a reasonable doubt that the target subjects 

and other [sic] not yet identified are acting as part of a firearms trafficking organization, are 

engaged in the straw purchase of firearms, and are engaged in the possession and distribution 

of firearms to Mexican Drug Cartels and are supplying these firearms in furtherance of drug 

trafficking crimes, and the laundering of monetary proceeds.”
158 

On March 5, 2010, the OEO attorney assigned to the application emailed Hurley a list of questions based on the initial review of the materials. 

The questions pertained to both technical and substantive issues. These 

included the need to indicate whether a particular source of information was 

reliable, how certain subjects and locations were identified, evidence that the 

targeted telephone number recently had contact with another “dirty” telephone, 

and whether any of the subjects had been arrested, interviewed, or were 

cooperating with law enforcement after firearms were recovered in their 

possession. Hurley, with MacAllister’s assistance, responded to the questions. 

On March 10, 2010, OEO provided to a Deputy Assistant Attorney 

General (DAAG) in the Criminal Division a memorandum that summarized the 

application and affidavit, both of which were also provided. The DAAG 

approved the application that same day. Shortly thereafter, Hurley filed the 

application in federal court, the district court judge signed the order that day, 

and ATF began intercepting communications on March 16, 2010. In an e-mail 

to U.S. Attorney Burke advising him that the application had been approved, 

Hurley’s supervisor (Morrissey) stated that conducting electronic surveillance 

in a firearms case was “unusual” and “aggressive,” and that “[h]opefully we will 

do it more in the future, but [Hurley] is the trailblazer.” Burke replied to 

Morrissey and Cunningham, “Frickin’ love it!!”. Morrissey forwarded Burke’s 

message to Hurley and stated, “You’ve made the US Attorney happy.” 

From March 15 to August 2, 2010, ATF and the U.S. Attorney’s Office 

submitted a total of nine wiretap applications in Operation Fast and Furious, 

two of which were requests to extend surveillance on particular telephone 

numbers after the 30-day authorization period expired.128

At the U.S. Attorney’s Office, Burke told us that he did not review the 

applications and there is no indication that Criminal Chief Cunningham did 

either. Hurley’s supervisor Morrissey told us that he reviewed the first draft 

application, but did not believe he reviewed any of the subsequent eight 

applications. In addition, some of the applications were reviewed by an 

 There was limited 

management review of the applications within the ATF Phoenix Field Division 

and the U.S. Attorney’s Office. ASAC Gillett told us that it was possible he 

reviewed a draft of MacAllister’s first affidavit, but that he did not review the 

others filed during his oversight of the investigation. ASAC Jim Needles, who 

assumed oversight of the case in approximately June 2010, told us he 

approved only the final affidavit. 

 

128 We interviewed the OEO attorney who reviewed the Fast and Furious electronic 

surveillance applications and two of the three Deputy Assistant Attorney Generals who 

approved the applications on behalf of the Department. The third Deputy Assistant Attorney 

General was John C. Keeney, who passed away in 2011. We describe their review of the 

applications in Chapter Five.
159 

attorney in the office’s OCDETF section. This was the first case in which 

Hurley filed a wiretap application and he told us that the purpose of the review 

by this attorney was similar to the review conducted by OEO – that is, to review 

the application for legal sufficiency. We did not find evidence that anyone in 

these offices, or at the Department or ATF Headquarters, asked questions 

about what steps agents were taking to address the purchasing activity 

described in the applications as additional wiretaps were pursued. 

Newell and Voth told us that they were frustrated with the time OEO 

took to review and approve the applications and attributed some of the time 

needed to complete the Operation Fast and Furious investigation to these 

purported delays. Voth also told us that he was frustrated with the time it took 

Hurley to send the application to OEO, and said Hurley was “ineffective and 

inefficient in the wiretap process.” Voth said that his experience with the U.S. 

Attorney’s Office for the District of Minnesota was that it took approximately 2 

weeks to get an application drafted and approved, and the surveillance 

initiated. Voth told us that in Phoenix it took anywhere from 6 to 8 weeks. 

We reviewed records that documented the review process and found that 

with one exception, OEO did not take longer than 8 days to approve and return 

the Fast and Furious-related applications to the U.S. Attorney’s Office, and in 

most instances took less time than the one week OEO estimates is typically 

needed to review applications. The one application that took longer than usual 

– approximately two weeks – sought surveillance authority for two telephone 

numbers and prompted questions from the OEO reviewer about the sufficiency 

of the evidence showing that one of the telephone numbers was being used in 

the furtherance of criminal violations.129

Hurley told us that he provided Burke a briefing around March 11, 2010, 

that included information about Operation Fast and Furious and another case. 

He said the purpose of the meeting was to provide Burke a better 

understanding of firearms trafficking in Arizona. Hurley said with respect to 

Operation Fast and Furious that he would have mentioned the number of 

subjects and the pending wiretap application. He said the briefing also 

included a broader conversation about FFLs in Phoenix and the type of 

 We found the delay in obtaining 

approval for the first application was attributable to ATF and the U.S. 

Attorney’s Office. As noted above, MacAllister provided Hurley a draft affidavit 

on February 5, 2010, but the materials were not sent to OEO until March 4, 

2010, after revisions between ATF and the U.S. Attorney’s Office. 

 

129 In response to complaints from ATF, DAAG Jason Weinstein contacted OEO 

personnel in May 2010 about the high priority of Operation Fast and Furious and arranged for 

expedited review of the applications. We further describe Weinstein’s knowledge of Fast and 

Furious in Chapter Five.
160 

cooperation they provide ATF, and some of the history of the relationship 

between ATF and the U.S. Attorney’s Office. Hurley said that Burke did not 

raise any concerns about Operation Fast and Furious at this meeting, nor did 

management express concerns at any point about the conduct of the case. 

Hurley updated Burke about the status of the initial wiretap in a 

memorandum dated March 23, 2010. The memorandum summarized the case 

to date and stated that the case was “a sensitive, ongoing OCDETF wire 

investigation” that targeted an individual who used straw purchasers to obtain 

“large quantities” of firearms to be trafficked to Mexico. According to the 

memorandum, the objective of the electronic surveillance was to “identify all of 

the major players in the conspiracy and discover the methods and means used 

to cross guns into Mexico.” The memorandum stated that the first attempt was 

proving unsuccessful because it appeared the subject had stopped using the 

targeted cell phone. The memorandum also noted that the subjects had 

already purchased more than $500,000 in firearms. Morrissey told us that 

Hurley also briefed him, Burke, and Cunningham around this time about how 

the first wiretap was not successful because the subject discontinued using the 

targeted cell phone shortly after ATF began intercepting calls. 

We found no evidence that Burke, Cunningham, or Morrissey raised any 

questions in light of this memorandum about whether agents were seizing 

firearms or whether there was any effort to confront or arrest straw 

purchasers, or whether these kinds of measures should be taken to disrupt the 

ongoing trafficking activity that was creating a risk to public safety. 

We asked witnesses whether the effort to obtain approval for and the use 

of the wiretaps affected decisions about approaching subjects or attempting to 

seize firearms. Several witnesses told us that it did. Gillett said the priority 

was to “get up on this wiretap and not blow any of these things or have this 

network shut down after this amount of effort.” English told us that early in 

the case ATF had identified some telephone numbers used by subjects and that 

approaching them at that point might have caused them to discontinue using 

those cell phones, thereby making the electronic surveillance they anticipated 

conducting less effective. 

The concern about subjects changing phones affected decision-making 

both before and after the wiretaps commenced. English also said that in her 

opinion the concern about compromising the electronic surveillance sometimes 

took priority over attempts to make seizures. Several other agents who worked 

on Fast and Furious at various times also told us that they believed the fear of 

“burning the wire” drove decision-making about whether to approach subjects 

and to seize guns. 

In contrast, MacAllister said the use of the wiretaps did not influence 

decision-making about whether to approach subjects. She said that for her the 
161 

decision to not approach subjects was based on past experience that the tactic 

simply did not work. With respect to not seizing firearms, MacAllister told us 

those decisions were driven by the lack of probable cause to make seizures. 

Voth told us that the decision to not approach subjects was due to the belief 

the tactic did not work, not the fear that it might affect the wiretaps. 

C. Investigation Continues to Uncover Significant Trafficking 

Activity 

1. Subjects’ Purchasing Activity Continues 

While Group VII was seeking and obtaining OCDETF designation and 

wiretap authority for Operation Fast and Furious, several subjects in the 

investigation continued to purchase firearms at a remarkable pace. According 

to ATF records, Patino purchased a total of 99 firearms in the month of 

February for over $76,000, all paid in cash. This included 40 AK-47 style rifles 

purchased from FFL1 over a 3-day period and a single Barrett .50 caliber rifle 

for over $9,000. Patino’s purchasing increased in March: 197 firearms for over 

$143,000 in cash, including 63 AK-47 style rifles purchased from FFL1 over a 

3-day period and 2 Barrett .50 caliber rifles for over $9,000 each. Patino spent 

another $71,000 in April for a total of 35 firearms, including 4 more Barrett .50 

caliber rifles, and $43,000 in May for a total of 69 firearms. 

Patino was not alone. Montelongo paid nearly $6,000 for 10 firearms in 

February, and then over $60,000 for 53 firearms in March, including 2 Barrett 

.50 caliber rifles purchased for over $18,000. ATF records indicate that Moore 

did not purchase any firearms in January or February, but spent over $40,000 

in March on 21 firearms, including 3 Barrett .50 caliber rifles. Jaime Avila 

spent over $17,000 in the months of April and May for a total of 21 firearms. 

Other significant purchasers included Hercegovac, identified by ATF in 

November 2009, who spent over $18,000 on two Barrett .50 caliber rifles in 

March; and Julio Carrillo, who also purchased two Barrett .50 caliber rifles for 

over $18,000 in March just days after being identified in the investigation. 

In sum, Operation Fast and Furious subjects spent over $608,000 for 

more than 600 firearms from February 1, 2010, to May 31, 2010. As in the 

prior months, the firearms were primarily cartel “weapons of choice,” paid for 

in cash, and bought primarily from FFL1. In addition, over 83 firearms 

purchased by Operation Fast and Furious subjects were recovered in the 

United States and Mexico during this period. 

With the exception of the firearms seizure on the Tohono O’odham Indian 

reservation described earlier, the investigative tactics used in Operation Fast 

and Furious during February to May 2010 did not include any overt action, 

such as subject interviews, seizures, search warrants, or arrests, despite the 
162 

mounting evidence obtained through the wiretaps, surveillance, recoveries, and 

ongoing purchases. 

MacAllister maintained that neither seizures nor arrests were possible 

without an admission from the subject that the firearms were bought for a nonprohibited third party. She told us that based on her regular communications 

with Hurley about the case, as well as with her supervisors, she was confident 

that there was not enough evidence to prosecute any of the subjects. 

MacAllister said concerns about violating subjects’ Second Amendment and 

Fourth Amendment rights were raised repeatedly in conversations about 

seizing firearms. However, she also acknowledged that it was a tactical 

decision not to take steps to obtain the piece of evidence she believed was 

necessary to seize firearms, that is, an admission. 

Newell and Voth told us that ATF wanted to seize firearms, but agents 

were constrained by the legal threshold imposed by the U.S. Attorney’s Office 

with respect to establishing a subject’s specific intent to purchase the firearms 

for a non-prohibited third party, an issue we discussed earlier in Section IV. 

Voth told us that he did not consider the goal of dismantling the Celis-Acosta 

trafficking group mutually exclusive of making a lawful arrest or a seizure 

when the opportunity arose and that such opportunities existed but were not 

pursued in Operation Fast and Furious because of Hurley’s legal advice. Voth 

said agents did not call Hurley during each surveillance to determine whether a 

lawful seizure could be attempted, but said this was unnecessary because the 

sets of circumstances agents observed were consistent with those that Hurley 

had previously opined were legally insufficient for seizure. Voth told us that he 

grew increasingly frustrated during the investigation with ATF’s inability to 

seize firearms based on Hurley’s legal guidance, and that he would have seized 

firearms in Operation Fast and Furious regardless of how it affected the 

strategy of trying to dismantle the larger organization. 

Contrary to these claims, Voth wrote the following in an April 3, 2010, email to Hurley and Gillett that he told us was intended to convey his 

frustration with getting the wiretaps approved: 

I hope this e-mail is well received in that it is not intended to imply 

anything other than that the violence in Mexico is severe and 

without being dramatic we have a sense of urgency with regards to 

this investigation. Our subjects purchased 359 firearms during 

the month of March alone, to include numerous Barrett .50 caliber 

rifles. I believe we are righteous in our plan to dismantle this 

entire organization and to rush in to arrest any one person without 

taking into account the entire scope of the conspiracy would be ill 

advised to the overall good of the mission. I acknowledge that we 

are all in agreement that to do so properly requires patience and 

planning. In the event however that there is anything we can do to 
163 

facilitate a timely response or turnaround by others we should 

communicate our sense of urgency with regard to this matter. 

Voth also told us that he could not recall concerns being raised about the 

number of guns being purchased. He also said that despite there not being 

any doubt by the end of 2009 that subjects like Steward were straw 

purchasers, taking action against them would not have addressed the larger 

trafficking by the organization that was the target of the investigation. 

As we detail below, we found little contemporaneous evidence to support 

Voth’s claim that he was in favor of making seizures during the course of the 

Operation Fast and Furious investigation, or that he grew increasingly 

frustrated by ATF’s inability to do so in that case. To the contrary, the great 

weight of the evidence we reviewed indicated that Voth’s April 3 e-mail to 

Hurley and Gillett accurately reflected the strategy in Operation Fast and 

Furious to defer seizing firearms and arresting subjects, an approach that did 

not include any steps to slow or disrupt the illegal firearms trafficking and that 

inadequately considered the potential harm to the public as the case 

progressed.130

Indeed, Newell told us that he was never presented with a concern about 

the lack of seizures, and that he in fact was comfortable during the 

investigation with its progress. Newell also said that in retrospect he would 

have liked to have been provided more specific information about surveillances 

and that he has since reviewed some reports from the case that raised 

questions in his mind about why there was no interdiction. However, he said 

this issue was not raised in briefings he received from Voth and Gillett during 

the pre-indictment phase of the investigation and that he believed, based on 

representations he said were made to him by Gillett and Needles, that agents 

were seizing firearms at every opportunity they legally could. Gillett, who 

supervised the case until April 16, 2010, told us that seizing firearms was not 

 

130 In one of the few communications we identified where Voth addressed probable 

cause to seize, he took exception to an agent in another office who, in connection with an 80-

gun seizure that included 57 from Fast and Furious, asked Voth, “[a]re you planning to stop 

these guys any time soon? That’s a lot of guns that have been seized. Are you just letting 

these guns walk?” Voth replied, “[h]ave I offended you in some way? Because I am very 

offended by your e-mail.” Voth stated that without probable cause and concurrence from the 

U.S. Attorney’s Office, “it is highway robbery if we take someone’s property.” He also described 

a recent incident (not related to Operation Fast and Furious) in which agents stopped an 

individual after he purchased a .50 caliber rifle for over $10,000. After a field interview, the 

prosecutor (Hurley) told the agents there was not probable cause to seize. Voth stated, “any 

ideas on how we could not let that firearm ‘walk’ . . .?” Voth added, inaccurately, “we have 

stopped ‘some’ of these guys and seized hundreds (plural) of firearms in this case to date.” We 

did not find this e-mail persuasive evidence that Voth was frustrated with the conduct of 

Operation Fast and Furious.
164 

aggressively pursued early in the case, and that no one ever came to him and 

said that agents needed to be more aggressive. In fact, as we described earlier, 

agents were not seizing guns at all during that period with the exception of the 

February 2010 seizure on the Tohono O’odham Indian reservation. Additional 

seizures were not made until June 2010, after Needles began supervising the 

case. 

Hurley said he primarily spoke to MacAllister and co-case agent English 

about the case, and occasionally to other agents from Group VII. Hurley said 

he recalled having conversations with agents about what they anticipated 

observing during an upcoming surveillance. Hurley told us that during these 

meetings, he advised the agents about what kinds of evidence would be 

required to both seize the firearms and insure that the firearms would 

ultimately be forfeited to the government. He said that probable cause was not 

discussed during those meetings because the evidence to support probable 

cause might not be sufficient to insure the firearms could be forfeited. 

Hurley also said that with one exception, he could not recall having 

conversations with agents as surveillance was being conducted. He told us 

that whether to approach a subject during surveillance was a tactical call left 

to the judgment of the agents at the scene.131 Hurley also said he could not 

recall any conversations with ATF agents or managers about whether to change 

tactics in Operation Fast and Furious because of, for example, firearm 

recoveries in Mexico, nor could he recall hearing any complaints about how the 

investigation was being conducted, other than some frustration about the time 

it took to get the wiretaps approved. We did not find any evidence that 

contradicted Hurley.132

Morrissey, Hurley’s supervisor, told us that it was his expectation and 

understanding that ATF agents would seize firearms during Operation Fast and 

 

131 Hurley said he recalled one specific instance where agents contacted him during a 

traffic stop of a vehicle ATF personnel conducted in August 2010. The stop was conducted in 

order to question the driver about a .50 caliber rifle that he had just purchased. Hurley said 

there was insufficient probable cause to seize the weapon and told us that ATF agents at the 

scene, which included MacAllister, agreed. Voth told us that he told Hurley that he disagreed 

with Hurley’s assessment; he said he thought that the $13,000 price paid for the weapon, 

combined with the knowledge that the buyer did not have a job, was sufficient to give the 

agents probable cause to seize it.

132 After reviewing a draft of this report, Voth submitted examples of actions he took 

that he asserted illustrated his frustration with Hurley’s legal advice. As an example, Voth 

stated that in April 2010, after agents learned that Patino was on food stamps, he asked the 

U.S. Attorney’s Office whether Patino could be arrested for fraud in light of the hundreds of 

thousands of dollars he had spent on firearms. He stated the office responded that an arrest 

could not be made. Voth said he made the same request of the Arizona Attorney General’s 

Office and the U.S. Department of Agriculture, and received the same response.
165 

Furious whenever possible, and that he was not aware of any instance where 

Hurley rejected an ATF agent’s request to seize a firearm, with the exception we 

described in footnote 131. Morrissey also told us that in the summer of 2010 

he began to question why ATF was apparently failing to identify how firearms 

were getting to Mexico, which he understood to be an investigative goal of the 

case. He said he discussed this with Hurley late in the summer and that this 

led to the decision by the early fall to bring the case to a conclusion. 

2. ATF Conducts Surveillance of Straw Purchases and 

Transfers 

Group VII conducted surveillance of firearms purchases by Operation 

Fast and Furious subjects on approximately 25 occasions from February 1, 

2010, to May 31, 2010, and of these, agents observed firearms being 

transferred to third parties on 10 occasions. Subjects purchased a total of 190 

firearms during these surveillances, the vast majority of which were bought by 

Patino. Despite the accumulation of even more substantial evidence that the 

subjects were engaged in trafficking firearms, the only ATF-initiated seizure of 

firearms during this 4-month period, as noted above, was the February 20, 

2010, 41-gun seizure on the Tohono O’odham Indian reservation. We describe 

below the circumstances of several surveillances during this period that did not 

result in seizures. 

On March 16, 2010, ATF received information that Patino inquired with 

FFL2 about purchasing a .50 caliber rifle. Agents conducted surveillance and 

were able to observe Patino exit the store with Moore, another Operation Fast 

and Furious subject. Moore, who actually bought the rifle and completed the 

Form 4473, was carrying the case containing the rifle. The case was placed in 

Patino’s vehicle and agents conducted surveillance as the two drove to FFL1. 

There, agents observed Patino leave the store three times carrying several 

boxes containing AK-47 style rifles and place them in his vehicle. As agents 

maintained surveillance on Patino and Moore after departing FFL1, they were 

advised that Acosta was nearby and that Patino and Moore might be going to 

his location. Agents in fact did observe the two go to that location and pull into 

a parking lot. Agents observed Patino and Moore at the rear of Patino’s vehicle 

with the hatch open. Patino and Moore met with several unknown individuals 

who appeared to be looking at and removing some of the boxes from Patino’s 

vehicle, and placing them into other vehicles. Agents also learned that CelisAcosta was at the location. Agents did not follow any of the other vehicles that 

left the parking lot, and instead maintained surveillance on Patino’s vehicle. 

Agents continued surveillance as he drove to another location. At some 

point, agents were able to observe boxes inside Patino’s vehicle obscuring the 

view of the rear window. Agents followed the vehicle to a location where, 

despite some difficulties, they were able to get a quick view of several unknown 

individuals at the rear of Patino’s vehicle, which was backed into a driveway 
166 

near a garage. Agents tried to follow Patino’s vehicle when it left, but soon lost 

sight of it. Agents subsequently went to Celis-Acosta’s house and returned to 

the house where Patino’s vehicle had backed into the driveway and gathered 

license plate numbers of several vehicles parked nearby. Agents also obtained 

the Form 4473s of the FFL1 purchase, which indicated that Moore had 

purchased 5 AK-47 style rifles for $3,000 cash, and Patino had purchased 10 

identical firearms for $6,000 cash. 

Voth summarized this incident in an e-mail to Gillett on March 19 to 

update him on the week’s events. The e-mail stated that since March 15, 

Operation Fast and Furious subjects had purchased 105 firearms from local 

FFLs, including 3 Barrett .50 caliber rifles. Similar to other communications 

informing Gillett of activity in the case, Voth did not express any frustration 

about not being able to seize any of the purchases and transfers being 

observed. 

On April 14, 2010, FFL1 contacted ATF to advise that Patino had made a 

partial payment of $18,000 cash for the purchase of three .50 caliber rifles. 

ATF requested that FFL1 segregate Patino’s down payment from the other 

currency on hand and place it in a sealed plastic bag. The following day, 

MacAllister and an officer with the Phoenix Police Department arrived at FFL1 

with a police dog trained to detect the odors of chemicals associated with 

certain narcotics. According to the ATF report, the dog detected the suspicious 

odor in a cabinet that contained the currency Patino used for the partial 

payment. Also on April 15, Patino paid in cash the remaining $9,740 balance. 

On April 16, 2010, ATF agents conducted surveillance at FFL1 of Patino 

and his girlfriend, who also was present on April 14 and who carried the purse 

from which Patino withdrew the cash used for the partial payment. Agents 

observed Patino enter FFL1 and then exit a short time later to load into his 

vehicle the three “pelican cases” that contained the .50 caliber rifles. Agents 

maintained surveillance of Patino after he departed FFL1 and observed him 

transfer at least one of the pelican cases to a vehicle registered to Celis-Acosta. 

ATF agents discontinued surveillance of Patino and followed this second vehicle 

to a mobile home, where at least one pelican case was observed being moved 

from the vehicle to the residence. The owner of the residence had been 

arrested in April 2010 with Celis-Acosta and another individual during a traffic 

stop. 

We asked MacAllister and Hurley why, given all that was known about 

Patino at this time in the investigation, ATF did not interdict the three .50 

caliber rifles he purchased on April 16. On that day, ATF knew that since 

November 2009, Patino had purchased over 490 firearms for over $380,000, 

and ATF knew that at least 63 of these firearms had already been recovered in 

Mexico and the United States, including 37 of those seized on the Tohono 

O’odham reservation. 
167 

MacAllister told the OIG that “what we believe and what we can prove 

without [Patino’s] help are two different things.” She said that ATF began using 

a police dog in March 2010 trained to detect the odor of certain chemicals 

associated with narcotics to get the agents closer to establishing probable 

cause to seize firearms. However, she also told us that at this time in the case 

ATF was still not seizing weapons without admissions – admissions that for 

tactical reasons agents were not seeking. MacAllister said that based on her 

conversations with the U.S. Attorney’s Office about the case, she did not believe 

at the time of Patino’s April 16 purchase that there was sufficient probable 

cause to seize firearms and prosecute the subjects despite the additional 

circumstantial evidence established by the dog alert. 

Hurley told the OIG that he could “make the argument” that there was 

probable cause to seize the .50 caliber rifles, but that he did not know about 

the sale until after it happened and that agents had not asked him for 

contemporaneous advice about whether they could seize the guns. 

We also reviewed several examples of ATF surveillances conducted after 

consensual recordings that indicated an 

Operation Fast and Furious subject was being asked to purchase firearms for a 

third party. Agents conducted surveillance of the subject in these instances 

and in some cases observed a transfer of firearms between the subject and a 

third party, or observed activity indicating that a transfer took place even 

though the firearms themselves could not actually be seen (for example, the 

subject’s vehicle parked with its trunk backed up to the trunk of the third 

party’s vehicle, a brief period passed, and the third party departed the 

location). However, the surveillance teams did not seize any firearms observed 

during these surveillances, did not conduct overnight surveillance of locations 

where firearms were brought, and did not conduct any traffic stops of vehicles 

to identify the third parties who were observed receiving or were believed to 

have received firearms. 

As an example, on April 27, 2010, agents conducting surveillance of 

Patino 

 Agents then observed Patino drive directly to FFL1 and, after 

leaving the store, load 10 pistol cases into his vehicle. An agent entered the 

store after Patino departed and obtained copies of the Form 4473s and 

receipts. They showed that Patino had purchased 10 FN Herstal pistols for 

over $11,000, paid for in cash. Agents continued to conduct surveillance on 

Patino and observed him meet with another individual and transfer all 10 of 

the pistol cases to that individual’s truck. Patino was also observed giving the 

individual an unknown quantity of cash. Agents discontinued surveillance of 

Patino after the vehicles left the location, and attempted to follow the truck. 

According to the investigative report, the individual drove in a manner that 

made it appear that he was trying to evade surveillance, and surveillance was 
168 

discontinued. The truck was observed about 20 minutes later at Patino’s 

residence. 

 

 

 

 

 

 

 Agents conducting surveillance subsequently observed Patino and 

another Operation Fast and Furious subject, Jacob Montelongo, at FFL2. 

Patino purchased a .50 caliber rifle and Montelongo purchased six FN Herstal 

pistols. 

 

 

 

 

 

Agents subsequently observed a vehicle previously identified driving near the 

residence park in Patino’s driveway. The vehicle departed approximately one 

minute later. Agents briefly followed the vehicle, but terminated surveillance 

“due to counter surveillance measures being deployed.” 

In late May, agents obtained through investigative efforts uncorroborated 

information that one of the third parties who had ordered and received firearms 

from a straw purchaser was a convicted felon. The day after agents obtained 

this information, the wiretap and physical surveillance indicated that this 

individual had ordered additional firearms and made arrangements for their 

delivery. Yet the agents did not take any enforcement action against the 

individual on that day.133

In another example, on May 20, 2010, 

 

 

 Voth told us that that they discussed the situation with 

Hurley and he agreed there was sufficient probable cause to seize the firearms 

and that the plan was to make the seizure after Patino transferred the guns to 

the third party. MacAllister told the OIG that agents planned to “at least stop” 

the vehicle once it left the parking lot, but said she did not remember if she 

 

133 As we describe in Section I.H. below, ATF agents confirmed the individual’s criminal 

status on June 4, 2010, by reviewing court documents and conducted a traffic stop of him on 

that day. However, the guns that the felon had ordered from a straw purchaser in late May 

were not in his car when he was stopped, so ATF agents never seized them.
169 

talked with Hurley in advance of the surveillance. As we noted earlier, Hurley 

told us that he could not recall any instances before June 2010 where agents 

asked him in advance of surveillance whether there was probable cause to 

seize firearms. 

The surveillance team monitored the parking lot where the transfer was 

expected to occur and observed Patino provide to the third party what was 

believed to be the three firearms. After the third party’s vehicle left the parking 

lot, the surveillance team attempted but was unable to locate it despite 

receiving a description of the vehicle over the radio and information about its 

general direction.134

D. Tensions in Group VII 

Just prior to and during this time period, tension developed within 

Group VII that some witnesses told us was attributable to the conduct of 

Operation Fast and Furious and that others said was caused by personality 

conflicts. By March of 2010, several experienced agents had been added to 

Group VII. Most of these agents came to Phoenix from other offices in response 

to a national announcement by ATF seeking voluntary transfers to offices along 

the Southwest Border to work on firearms trafficking investigations. The first 

of the new agents to report was John Dodson, who joined Group VII in the first 

week of December 2009. Dodson was followed by Olinda Casa in late 

December 2009, Mark Sonnendecker in mid-February 2010, and Larry Alt in 

early March 2010. In addition, one agent already working in Phoenix and 

another who was detailed to Phoenix from Tucson began providing support to 

Group VII and the Operation Fast and Furious investigation in March 2010. 

The new agents had varying degrees of involvement with Operation Fast 

and Furious, but were uniformly critical of the decisions to not approach 

subjects and to not seize firearms. They told us that in their experience 

approaching suspects was an effective tactic for gathering evidence about 

others involved in firearms trafficking, including the financiers of the weapons 

purchases. The agents said they did not understand how conducting 

surveillance of purchases and transfers without taking any overt enforcement 

action was a viable, or responsible, approach to developing the case. 

 

134 Despite the failure to seize the firearms 

 Voth reported the incident as “[g]ood news” in an e-mail to 

ASAC Needles the next day providing an update Voth 

 

reported that agents observed the transfer take place. The e-mail did not mention any failed 

effort to seize the firearms.
170 

Dodson told us that his frustration with the case began within weeks of 

his arrival in Phoenix in December 2009, during one of the first surveillances 

he assisted. Dodson said he and Casa conducted surveillance of a purchase at 

FFL1 by one of the subjects who had already made dozens of earlier purchases, 

and were prepared to interdict and seize the firearms.135

Dodson told us that he asked Voth, MacAllister, or English on several 

occasions why firearms were not being seized in the case. According to 

Dodson, he was told that he did not understand gun trafficking in Phoenix, 

that they did not have to explain the approach to him, and that they knew how 

to handle the case. Dodson said that he became so frustrated with the case by 

approximately May 2010 that he confronted MacAllister in the common area of 

the Group VII office space and asked her whether she was prepared to attend 

an agent’s or law enforcement officer’s funeral. Dodson said that either 

MacAllister, English, or Voth responded to this and other statements he made 

critical of the case by saying something similar to, “if you’re going to make an 

omelet, you’ve got to scramble some eggs,” which Dodson interpreted to mean 

the ends justify the means. MacAllister told us that she “vaguely” recalled 

Gillett saying something like that during a group meeting, but that she thought 

it was in response to a comment by Casa. MacAllister added that she could 

not remember to what Gillett was referring, but also said she agreed with the 

sentiment that ATF needed to focus on dismantling organizations and not 

simply on the straw purchasers. With respect to Dodson asking whether she 

was prepared to attend an agent’s or law enforcement officer’s funeral, 

MacAllister said she did not specifically recall this but did recall him making a 

statement about being able to stand in front of Congress and explain the 

conduct of the case. Alt said that he also remembered Gillett saying something 

to that effect and that it was said in response to a comment by Dodson. Gillett, 

however, told us that no one, including Dodson, ever complained or raised 

concerns about the tactics in the case until after the shooting death of Border 

Patrol Agent Terry.

 Dodson said he was 

instructed to “stand down” and not take any enforcement action. Dodson said 

he could not recall who gave him this instruction, but that it would have been 

Voth, MacAllister, or English. Dodson told us that during the time he 

participated in surveillances for Operation Fast and Furious, which ended in 

approximately July 2010, all he did was watch and sometimes photograph the 

subjects making purchases as well as some transfers of firearms. 

136

 

135 Casa told us that the first surveillance he participated in was in March 2010. We 

reviewed the Operation Fast and Furious surveillance reports and found that Casa and Dodson 

first conducted surveillance together on February 15, 2010.

136 During the course of our review of Operation Fast and Furious, several witnesses 

told us about an investigation Dodson conducted in which he sold firearms in an undercover 

(Cont’d.)
171 

Casa shared Dodson’s criticism of the case and told us that he recalled 

frustration “boiling over” in March 2010 when it became evident to him that 

ATF was “letting all these guns out” despite sufficient evidence to take 

enforcement action. Casa said he witnessed Dodson’s statement about 

attending the funeral of a law enforcement officer and told us that there were 

daily conversations about how no action was being taken to stop the purchases 

and that ATF was “enabling traffickers.” Casa told us that he had specific 

conversations with Voth and MacAllister on the subject. 

Casa also told us that on several occasions he called MacAllister or Voth 

during surveillance, told them that a subject had just purchased some 

firearms, and asked whether he should have Phoenix Police Department 

officers attempt to interdict the subjects. Casa told us that the response on 

each occasion was negative, and that when he questioned the decision the next 

day, he generally was not provided an explanation. Casa said that he 

requested and was denied permission to conduct a stop or seizure on 

approximately six occasions. He said he was never told or given the impression 

that there was not probable cause to make the requested seizures. Casa said 

 

capacity to the subject of the investigation. According to investigative reports we reviewed, in 

late April 2010, Dodson became aware of allegations that was paying others 

to purchase firearms on his behalf from a cooperating defendant. On two occasions in May, an 

informant working with Dodson made straw purchases of a total of six firearms for 

at request. In late May, Dodson proposed a plan to Voth whereby Dodson would 

act in an undercover capacity as a straw purchaser and provide firearms to The 

plan explicitly provided that would be allowed to walk with the firearms. Voth told 

us he opposed the plan, which Needles approved.

On June 1, 2010, Dodson purchased six AK pistols from two licensed gun retailers then 

sold the six pistols to After the sale was complete, other ATF agents followed 

to a gated storage facility and then terminated their surveillance. In August 2010 

told Dodson he was no longer in the business of obtaining firearms from straw 

purchasers and reselling them for profit. In October 2010, Dodson met with , 

identified himself as an ATF agent and interviewed him, and told Dodson he no 

longer possessed the six AK pistols. Dodson then closed the case and was not 

arrested.

Dodson told the OIG that he and other agents had joked that ATF should sell the guns 

directly to and then decided to propose the operation. According to Dodson, he and 

the other agents thought that the proposal would be rejected and that when the managers saw 

such a plan in “black and white” they would be shocked into realizing what they were doing in 

Operation Fast and Furious. Dodson also told us that after his plan was approved he 

reluctantly went forward with it and that he still regretted delivering the AK pistols and letting 

them “walk.”

As noted in Chapter One, the OIG is completing its investigation of an allegation that

Department employees provided to a member of the media a copy of the May 2010 

undercover proposal memorandum. Shortly after this investigation was initiated, Burke 

admitted to the OIG that he provided the memorandum to a reporter at the reporter’s request.
172 

he stopped assisting Operation Fast and Furious in approximately May 2010, 

calling it a “happy divorce” because of his impression that Voth and MacAllister 

no longer wanted him working on the case. 

Other agents told us they shared Dodson’s and Casa’s concerns, but did 

not raise them to Voth or MacAllister. They told us that many of the agents 

detailed to Phoenix as part of the Gun Runner Impact Team (GRIT) initiative in 

May 2010 also disagreed with what appeared to be a strategy to not interdict 

and seize firearms.137

The investigation, however, was not without supporters within ATF 

Phoenix. The two agents already assigned to Phoenix who started to work on 

Operation Fast and Furious in March 2010 supported the strategy in the case 

to develop a prosecutable case against the trafficking organization. These 

agents told us that they were familiar with the challenges of straw purchaser 

investigations, including the Phoenix U.S. Attorney’s Office’s resistance to 

prosecuting such cases and the potential ineffectiveness of confrontational 

interviews. One agent also told us that it was well known by agents in the ATF 

Phoenix office that the U.S. Attorney’s Office imposed a very high legal 

threshold for interdictions. On the other hand, this agent also told us that she 

understood it was a strategic decision in this case to forego interdictions and 

arrests of straw purchasers because the goal of the case was to also prosecute 

individuals higher-up in the organization. 

 One GRIT agent told us that he was not aware of a 

single GRIT detailee who agreed with how the case was conducted, and said 

there was consensus that it was not how ATF operates. This agent said that 

MacAllister told him firearms were not being interdicted in the case because 

the subjects in Phoenix were different than in other parts of the country. We 

also interviewed an officer from the Phoenix Police Department who 

participated on some Operation Fast and Furious surveillances. He told us 

that he recalled agents starting to complain in the spring of 2010 about 

firearms not being interdicted. The officer described the issue as a “hot topic” 

that “everybody was talking about.” 

The agents who supported the investigation also described a 

dysfunctional work environment in Group VII, but these agents attributed the 

discord to conflicts some agents had with Voth, MacAllister, and English that 

reflected both personality differences and disagreements over work 

assignments, but not disagreements about tactics. 

 

137 Under the GRIT initiative, ATF sent temporary “surges” of agents to Southwest 

Border offices to conduct firearms trafficking cases. Group VII received several of the GRIT 

detailees sent to Phoenix and used them briefly to assist with surveillance on Operation Fast 

and Furious.
173 

Voth told us that disagreements about how the wire room would be 

staffed prompted him to send an e-mail to Group VII on Friday, March 12, 

2010, calling for a group meeting. The e-mail stated: 

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 apart. We are all entitled to our respective (albeit 

different) opinions however we all need to get along and realize that 

we have a mission to accomplish. 

I am thrilled and proud that our Group is the first ATF Southwest 

Border Group in the country to be going up on a wire. On that 

note I thank everyone for their efforts thus far and applaud the 

results we have achieved in a short amount of time. 

. . . 

We need to resolve 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 are but we are adults, we are all 

professionals, and we have an exciting opportunity to use the 

biggest tool in our law enforcement toolbox. If you don’t think 

this is fun you’re in the wrong line of work – period! This is the 

pinnacle of domestic law enforcement techniques. After this the 

tool box is empty. Maybe the Maricopa County jail is hiring 

detention officers and you can get paid $30,000 (instead of 

$100,000) to serve lunch to inmates all day. 

. . . 

We need to get over this bump in the road once and for all and get 

on with the mission at hand. This can be the most fun you have 

with ATF, the only one limiting the amount of fun we have is you! 

(Emphasis in original.) This meeting held the following Monday deteriorated 

into a yelling match between two of the agents about work schedules. 

According to the individuals who attended the meeting, concerns about the 

lack of seizures or arrests were not discussed. 

We asked Voth, MacAllister, and English about their knowledge of any 

concerns raised by Group VII agents regarding the conduct of Operation Fast 

and Furious with respect to seizing firearms. MacAllister said Dodson told her 

he wanted to interdict more firearms and also told her that there would be a 

Congressional inquiry into the investigation. She said that in response she told 

Dodson about the challenges agents in Phoenix faced with straw purchasers 

and what she felt was necessary to establish probable cause to seize firearms. 

MacAllister said she also told Dodson that she would be willing to consider 

suggestions he might have about developing probable cause, but did not recall 
174 

him offering any. MacAllister said she did not tell Voth or Gillett about 

Dodson’s statements. 

MacAllister also said she recalled two particular instances involving Casa 

in which the conduct of the case was at issue. The first occurred on a 

surveillance on April 27, 2010, during which a dispute arose between Casa and 

English about the wisdom of making a traffic stop of a subject who had just 

purchased some firearms. The second instance related to Gillett’s “scrambled 

eggs” comment. MacAllister recalled that Casa was upset after the meeting 

with the sarcasm of the comment. However, as we noted above, MacAllister 

said she could not recall what Gillett was responding to in making this 

comment. With respect to Group VII dynamics, MacAllister acknowledged to 

us that there were personality clashes. 

English also told us that she recalled Dodson stating to MacAllister in 

March 2010 that the office might have to eventually answer to Congress about 

the conduct of the case, and understood that Dodson felt they should be 

seizing firearms. English said that she recalled MacAllister responding that 

there was insufficient evidence to seize firearms at that point but that she was 

open to any suggestions he might have. English told us that she was not 

aware of anyone other than Dodson raising concerns about seizing firearms. 

Voth told us that no agent in Group VII complained to him about the 

lack of seizures, nor did he recall MacAllister bringing any such complaints to 

his attention. Voth also told us that he did not recall any conversations in 

which – as claimed by Dodson and Casa – he told an agent that he did not have 

to provide an explanation regarding the goals or strategy of the case. 

We reviewed the e-mail communications of the Group VII agents to see if 

the agents who told us they raised oral concerns about the conduct of the case 

to Voth and MacAllister also made any written complaints. We did not identify 

any e-mail communications of this nature sent to Voth or MacAllister, nor did 

we identify any e-mailed complaints or concerns about the case regarding the 

lack of seizures to the SAC or to the ASAC. Newell and Gillett both told us that 

they were not aware of any such concerns raised by agents during the conduct 

of the investigation. 

By approximately May 2010, several of the agents who had worked on 

Operation Fast and Furious when they first joined Group VII ceased having 

significant involvement with the case and began to work on other Group VII 

investigations. The investigative work on Operation Fast and Furious from that 

point forward was handled primarily by MacAllister, English, the ICE agent 

detailed to Group VII, and the two Phoenix agents who joined the group in 

March 2010. The Phoenix Police Department continued to provide substantial 

assistance with physical surveillance. The GRIT agents assigned to Group VII 

in May 2010 provided some early surveillance support, but both Voth and 
175 

MacAllister told us that this was ineffective because of the older equipment the 

agents were provided and their lack of familiarity with the Phoenix area. These 

GRIT agents consequently were assigned to other cases.138

E. ATF Phoenix Field Division Drafts an Exit Strategy in April 

In March 2010 Deputy Director Hoover received a detailed briefing about 

Operation Fast and Furious that left him sufficiently concerned about the size 

of the case to require that the Phoenix Field Division draft an exit strategy that 

established a time line for completing the investigation. As we describe in 

Chapter Five, Hoover’s direction was communicated to Newell by Deputy 

Assistant Director McMahon. 

Newell did not provide the exit strategy until April 27, when McMahon emailed Newell about the request. Newell replied to McMahon: 

I have already discussed an exit strategy and will have that today 

as well. The issue has been getting a rolling T-III approved. We 

are getting great conversation on the wire we [sic] flip the switch 

but only for a couple of days due to the delays in getting the 

approvals and the pre-paid phone issue. I don’t like 

[Headquarters] 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, the T-IIIs are our 

best shot. 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. 

Newell forwarded this e-mail to Douglas Palmer, the acting ASAC for 

Group VII, and stated: 

Do not forward. Keep this between us. My response speaks for 

itself but I too have been getting close to asking for an “exit 

strategy” on Fast and Furious. At some point, regardless of the T-

 

138 In late summer 2010, Dodson was detailed to Group II and ceased having 

involvement with Operation Fast and Furious. Dodson was subsequently assigned to the FBI’s 

Joint Terrorism Task Force in Phoenix in October 2010. We did not investigate as part of this 

review whether these personnel moves were in retaliation for Dodson raising concerns about 

the conduct of Operation Fast and Furious, although the OIG is investigating other issues 

involving possible retaliation against Dodson. As we indicated in Chapter One, on January 27, 

2011, Sen. Grassley’s staff brought Dodson’s concerns to the attention of the Office of the 

Inspector General (OIG) after Dodson indicated that he was unsuccessful in his efforts to 

contact our office. Dodson made a significant contribution to bringing to light the flaws in 

Operation Fast and Furious that are described in this report.
176 

III issue, we need to take action just because of the amount and 

type (.50 cal, 8mms, etc.) of guns being purchased. Get with Dave 

[Voth] and start planning a rough timeline of when to seek either 

Grand Jury subpoenas for some of the “weak links” in this case 

(young female straws who bought early on), etc. I foresee us taking 

enforcement action in June/July so that gives them another 60-90 

days. I’m not sure I can keep [Headquarters] at bay any longer 

than that. 

Newell’s e-mail did not indicate that, as he asserted to us, the lack of 

enforcement action to date was attributable to legal obstacles erected by the 

U.S. Attorney’s Office. In fact, Newell’ s e-mail indicated that the lack of action 

was attributable to issues with the wiretap, which as we described earlier, 

related to delays in getting the applications reviewed and approved. 

Voth drafted an exit strategy that same day in just a few hours. 

MacAllister told us that she did not help Voth draft it and could not recall what 

input she provided. She also said that she wondered why it had been 

requested, but did not ask and was not told. There is no indication that Voth 

consulted with Hurley on the strategy. 

Newell e-mailed the completed document to McMahon that same day and 

sent it to Burke as an “FYI.” Newell also went to the airport that night to meet 

with Burke, who was departing for a trip to Mexico City. Newell spoke to Burke 

about ATF’s concerns about the wiretap delays, and followed up with an e-mail 

two days later stating, “Need help with OEO!!”139

According to the exit strategy prepared by Voth, the goal of the case was 

to intercept conversations of Celis-Acosta engaging in firearms trafficking with 

known and unknown subjects. The document described Patino and the other 

subjects as the “lowest rung on the preverbal [sic] criminal firearms trafficking 

organizational ladder,” and stated that if Patino was arrested for the firearms 

he purchased to that point, “we will only minimally impact the organization 

before Patino is replaced by another member of the organization.” The 

document stated that without the actual oral communications showing that 

Celis-Acosta was directing the activities of Patino and others, there was only 

circumstantial evidence. However, the document also stated that “every call we 

 As we noted earlier, just a 

few days later, ATF’s concerns received the attention of Deputy Assistant 

Attorney General Jason Weinstein, who contacted OEO personnel in early May 

about the high priority of Operation Fast and Furious and arranged for 

expedited review of the applications. We further describe Weinstein’s 

knowledge of Operation Fast and Furious in Chapter Five. 

 

139 However, as we noted previously, our review indicated that OEO had responded to 

the U.S. Attorney’s Office in a timely manner.
177 

have intercepted thus far 

 

 

The exit strategy document also described some of the frustrations with 

the wiretaps, such as the interrelated issues of the targets regularly switching 

telephones and the perceived delays in getting the wiretap applications 

approved. In addition, the document described the difficulty in identifying and 

tracking the financial source for the organization and noted that subjects had 

purchased over $900,000 in firearms during a 6-month period. The document 

said the financial component of the investigation was moving slowly because of 

the time required to obtain financial records. The document did not describe 

any efforts to seize firearms or arrest subjects, or any frustration about the 

inability to take such enforcement action. To the contrary, the document 

reaffirmed the strategy established in December 2009 to defer overt action as 

additional evidence was gathered. 

The exit strategy memorandum included 30-, 60-, and 90-day goals, but 

stated that the 90-day goal appeared reasonable. The 90-day goal anticipated 

intercepting communications of a member of a drug trafficking organization 

within Mexico who tied that organization to the firearms trafficking conspiracy, 

and securing indictments against the subjects of the investigation. As we 

discuss further in Chapter Five, Deputy Director Hoover and Acting Director 

Melson did not review the exit strategy until 2011, after the Fast and Furious 

investigation was publicly announced on January 25, 2011.

F. Celis-Acosta has Direct Contact with Law Enforcement in 

April, May, and August 

For several months after first identifying Celis-Acosta in December 2009, 

agents did not observe him during surveillances, although records revealed he 

had been crossing back and forth into Mexico.140

 

140 According to records provided by the El Paso Intelligence Center (EPIC), Celis-Acosta 

crossed into the United States from Mexico on 15 occasions between December 17, 2009, and 

August 1, 2010 (no crossings indicated after that date). ATF had a “Lookout” on Celis-Acosta 

that resulted in his vehicle being subjected to a secondary inspection on two occasions. CelisAcosta was also subjected to a secondary inspection on three other occasions based on officer 

suspicion. The result of each of these inspections was negative. The EPIC information also 

indicated that Patino, the most prolific Operation Fast and Furious purchaser, did not make 

any crossings from Mexico into the United States since at least August 2009.

 However, in April, May, and 

August 2010, Acosta had contacts with law enforcement, one of which was 

with MacAllister. 
178 

The first occurred on April 2, 2010. Without ATF advance knowledge, 

Phoenix Police Department officers stopped a vehicle containing Celis-Acosta 

and two other Operation Fast and Furious subjects because the vehicle was 

operating without headlights. Prior to the stop, and while following the vehicle, 

officers observed an object later determined to be a firearm thrown from the 

vehicle. The firearm had been purchased by Patino a week earlier, on March 

26. The officers recovered two additional handguns, a cell phone, and 

substance suspected to be cocaine during a search of the vehicle. The officers 

arrested one occupant for aggravated driving under the influence, one 

occupant for carrying a concealed weapon without a permit, and Celis-Acosta 

for possession of narcotics.141

The contacts list on the recovered cell phone included a telephone 

number for an individual identified as a name that ATF agents first 

heard from the DEA in December 2009 and 

 

 

 

 

 

 

 

The second contact occurred on May 29, 2010, when Border Patrol 

agents at the Lukeville, Arizona POE stopped a vehicle driven by Celis-Acosta, 

with two passengers, for inspection. The agents queried a database with the 

names of the occupants, determined that Celis-Acosta was under investigation 

for firearms trafficking, and contacted an agent with ICE who in turn contacted 

MacAllister. 

While the Customs and Border Protection agents awaited instruction, 

they conducted an inspection of the vehicle and located underneath the spare 

tire in the trunk a drum magazine loaded with 74 rounds of AK-47 

ammunition. The inspection also found nine cellular phones and some other 

documents. At the request of ICE and ATF, the individuals were read their 

Miranda rights. Celis-Acosta reportedly waived his rights. 

MacAllister and the ICE agent assigned to the Operation Fast and 

Furious investigation traveled to Lukeville and interviewed Celis-Acosta. 

MacAllister said she represented to Celis-Acosta that she was an ICE agent 

 

141 The Maricopa County prosecutor’s office did not file charges against Celis-Acosta. 

The individual arrested for carrying a concealed weapon pled guilty to a misdemeanor and was 

fined, and the charges against the driver are still pending.
179 

because “he seemed much more comfortable with ICE than he did with some 

other federal agencies.” MacAllister did not tell Celis-Acosta that he had been 

under investigation for firearms trafficking for several months. 

According to the ATF report, Celis-Acosta denied knowing the 

ammunition was in the vehicle but said that it would have his fingerprints on it 

because he had been hunting with the magazine drum the previous week. 

Celis-Acosta further stated that one of the cell phones in the vehicle was his. 

MacAllister told us that Celis-Acosta also said that he had bought firearms in 

the past from a Phoenix FFL. However, based on her impression that CelisAcosta was not forthcoming during the interview, MacAllister “didn’t feel a need 

to dig into his firearms activity.” 

MacAllister told us that she spent some time trying to decide what to do 

with Celis-Acosta. She said that after Customs and Border Protection 

indicated it was not going to arrest Celis-Acosta, she contacted Hurley to 

discuss whether there was enough evidence for ATF to charge him with a 

crime. According to MacAllister, there was some question whether there was a 

chargeable crime in light of his purported lack of knowledge that the 

ammunition was in the vehicle and the fact that the vehicle was not his. 

Ultimately, a decision was made to not arrest Celis-Acosta and to release him. 

Prior to releasing Celis-Acosta, MacAllister gave her telephone number to 

him. MacAllister told us she later made an unsuccessful attempt to contact 

Celis-Acosta at the telephone number he provided, though it was a phone she 

knew he did not use often. She did not get a response and told us that she was 

not surprised that Celis-Acosta never contacted her. Celis-Acosta was included 

in the indictment of Operation Fast and Furious subjects on January 19, 2011, 

but was not located by law enforcement and remained a fugitive until he was 

arrested on February 2, 2011. 

On June 3, 2010, Newell wrote an e-mail to McMahon regarding the May 

29 stop of Celis-Acosta. The e-mail indicated that criminal charges were not 

being brought “due to [the] ‘knowledge’ requirement of Arms Export Control Act 

violation, Acosta can claim ignorance as to existence of drum magazine which 

is what I would do and [the U.S. Attorney’s Office] won’t touch it as a result, 

can’t blame them for that.” He went on to report that Celis-Acosta had not 

called MacAllister, but noted “we are aware of his whereabouts” and that 

agents were maintaining surveillance on him and Steward. Newell concluded 

by reporting that there was an upcoming meeting at the U.S. Attorney’s Office 

“to begin plans to shut [the] case down by approaching several straw 

purchasers, Grand Jury subpoenas, etc.” 

Celis-Acosta had a third contact with law enforcement on August 7, 

2010, when Border Patrol agents in Deming, New Mexico stopped a vehicle in 

which Celis-Acosta was an occupant. According to the incident report, the stop 
180 

was made based on suspicion of immigration violations. Celis-Acosta 

reportedly acted belligerently during the incident by cursing and claiming the 

Border Patrol agents had no right to stop the vehicle. Celis-Acosta, along with 

the other occupants, claimed to be a U.S. citizen when he in fact was a Lawful 

Permanent Resident. The agents conducted a consensual search of the vehicle 

and discovered a small amount of marijuana. Celis-Acosta admitted to 

previously having marijuana in the vehicle and was issued a citation for this by 

a sheriff’s deputy at the scene. Celis-Acosta also claimed to have an 

outstanding felony warrant for another narcotics charge, but the agents’ 

records checks did not reveal any warrants. Celis-Acosta also said he had 

purchased some firearms knowing he should not have because of the felony 

warrant he said was outstanding, and said that he would dispose of the guns. 

There were no firearms in the vehicle. 

G. FFL2 Expresses Concerns and Requests Meeting with the 

Government in May 

In May 2010 Voth and Hurley met with the owner of FFL2 in response to 

the owner’s concerns about the store’s cooperation with ATF’s investigation. 

We described in Section IV of this Chapter that in December 2009 the owner of 

FFL1 requested a similar meeting with ATF and the U.S. Attorney’s Office. The 

owner of FFL1 told us that he asked for the meeting, which took place on 

December 17, because of his growing concern that the same individuals were 

making repeated multiple gun purchases from his store and he saw no 

indication that ATF’s investigation of these buyers was coming to close. 

The owner of FFL2 told the OIG that his store’s cooperation with ATF 

began in late November 2009, when agents contacted him to request Form 

4473s for particular individuals of interest to ATF. The owner agreed to assist 

and the store created a one-page “Project Gunrunner Compliance” form that 

FFL2 employees would complete and fax to ATF whenever one of these 

individuals purchased firearms. The form listed several key indicators of 

unlawful transactions, such as whether the purchase was of a large number of 

the same model firearm, the purchaser had made similar purchases on 

multiple occasions, the purchases were paid for in cash, and the purchaser did 

not try to negotiate the price of the firearms. The store employee would check 

the boxes next to the indicators that applied to the transaction being reported 

to ATF. 

The owner of FFL2 said his concerns grew as months passed and the 

same individuals continued purchasing the same weapons. He told us that he 

knew these individuals were straw purchasers and could not understand why 
181 

they were not being arrested.142

The owner of FFL2 expressed his concerns to Voth in April 2010. Voth 

replied to the owner by e-mail dated April 13: 

 Like the owner of FFL1, the owner of FFL2 

told us his previous experience with ATF was that after the store provided 

agents with the name of a suspicious purchaser, the individual was not seen 

again. The owner of FFL2 said he did not know what ATF did after it received 

the name, but that he would often get subpoenaed months later to testify at the 

trial of that suspicious purchaser. 

I understand that the frequency with which some individuals 

under investigation by our office have been purchasing firearms 

from your business has caused concerns for you. I totally 

understand and am not in a position to tell you how to run your 

business. However, if it helps put you at ease we (ATF) are 

continually monitoring these suspects using a variety of 

investigative techniques which I cannot go into detail. We are 

working in conjunction with the United States Attorney’s Office 

(Federal Prosecutors) to secure the most comprehensive case 

involving the different facets of this organization. If it puts you at 

ease I can schedule a meeting with the Attorney handling the case 

and myself to further discuss this issue. Just know that we 

cannot instruct you how to run your business but your continued 

cooperation with our office has greatly aided the investigation so 

far. 

The owner of FFL2 replied that he was going to draft a letter of understanding 

“to alleviate concerns of some type of recourse against us down the road for 

selling these items.” The owner stated that the store did not want to be viewed 

as “selling to bad guys.” 

The owner of FFL2 met with Voth and Hurley on May 13, 2010, and told 

us that he raised his concerns at the meeting about FFL2’s cooperation and 

requested a letter of understanding.143

 

142 The owner of FFL2 identified several indicators that caused him to conclude the 

individuals were straw purchasers: multiple purchases of the same firearms without 

additional accessories, sales were usually large cash transactions, limited conversation 

between the buyer and the store employee, sales were for full retail price (suggesting they were 

not being resold), and no attempt to negotiate prices. The owner of FFL2 also said that the 

FFL2 is a “high-end” gun club and retail store that offered amenities most stores do not, and 

that the individuals ATF was interested in were younger and appeared less affluent than FFL2’s 

usual customers.

 The owner of FFL2 said Voth and 

143 According to ATF records, as of the date of this meeting FFL2 had sold 11 .50 

caliber rifles to Operation Fast and Furious subjects and had several sales involving multiple 

FN 5.7 caliber pistols. ATF records show that Operation Fast and Furious subjects purchased 

(Cont’d.)
182 

Hurley did not offer to provide such a letter, but instead stated that they could 

not tell him who he could or could not sell firearms to and could not instruct 

him to make a sale in violation of the law or to refuse to make a lawful sale. 

The owner of FFL2 said Voth and Hurley also told him that the firearms 

being sold were being addressed with investigative techniques that they could 

not discuss. The owner told us that he understood this to mean ATF was 

taking some type of enforcement action to prevent the firearms from being 

transported into Mexico or their use against law enforcement. Voth and Hurley 

also said that they could not instruct FFL2 whether or not to complete 

particular sales, and that all sales had to comport with governing statutes and 

regulations. 

The owner of FFL2 told us that neither Hurley nor Voth made an explicit 

request that he continue to sell to persons he suspected of straw purchasing, 

but the owner said he believed from the context of the meeting and prior 

statements that this is what they wanted him to do. According to the owner of 

FFL2, he would not have continued to sell to the individuals identified by ATF if 

he did not have this belief. The owner also said he continued to assist ATF 

without a letter of understanding because he feared potential retaliation from 

ATF because the agency controlled his license to sell firearms. 

The owner of FFL2 also told us that either at the May 13 meeting or 

sometime before, he told Voth that FFL2 would not assist ATF unless the owner 

was assured that the firearms sold to subjects in the investigation would not be 

allowed to enter Mexico or be allowed to fall into the hands of individuals that 

could use them against law enforcement. The owner said Voth assured him 

that the investigation would be conducted in a manner to prevent that. Voth 

told us that the owner did not make the statement to him about guns entering 

Mexico or being used against law enforcement, and that he did not make any 

assurance to the owner about the conduct of the investigation. 

Voth did not memorialize his report of the meeting on May 13, 2010, 

until April 6, 2011, the same day he drafted the report memorializing the 

December 17, 2010, meeting with FFL1. The report was in all material 

respects identical to the FFL1 report. Hurley wrote about the meeting in a 

March 2, 2011, memorandum to Burke, Cunningham, and Morrissey because 

he understood “that there may be some new inquiry” about the meeting. The 

memorandum stated that the owner of FFL2 understood ATF “could not direct 

him to make a sale in violation of the law or refuse a lawful sale,” and that 

“nothing about the meeting was coercive towards FFL2 and never did anyone 

 

a total of 87 firearms from FFL2 for nearly $250,000. Subjects did not purchase AK-47 style 

rifles from FFL2.
183 

from FFL2 express any reluctance towards the requested cooperation.” In their 

interviews with the OIG, Hurley’s and Voth’s statements about the May 13 

meeting were consistent with their memoranda. 

The owner of FFL2 continued to cooperate with ATF after the May 13 

meeting, but reiterated his concerns on June 17, 2010, when he watched a 

news report about firearms and the border that he said disturbed him. He 

wrote in an e-mail to Voth, “[w]hen you, Emory and I met on May 13th 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 ATF agents 

could or would ever end up south of the border or in the hands of the bad 

guys. I guess I am looking for a little bit of reassurance that the guns are not 

getting south or in the wrong hands.” We did not find a reply e-mail from Voth. 

A notable example of FFL2’s continued cooperation with the investigation 

– and another instance where we questioned why ATF did not make a seizure – 

occurred in July 2010 when, following discussions with MacAllister, the store 

shaved the firing pin of a .50 caliber rifle that had been ordered by an 

Operation Fast and Furious subject. This modification disabled the firearm. 

MacAllister told the OIG that she asked the gun store to shave the firing pin 

after receiving information indicating one Operation Fast and Furious subject 

was purchasing the gun for another subject. MacAllister said she could not 

recall whether the idea to shave the firing pin originated with ATF or FFL2. 

After the subject bought the firearm, ATF requested local law 

enforcement officers to conduct a traffic stop to identify the occupants of the 

vehicle. MacAllister told us that because the subject told officers the gun was 

his and that he had purchased it, there was not sufficient probable cause to 

seize the firearm at that time. ATF was again contacted about this firearm in 

September 2010 by a gun repair shop when the firearm was brought to the 

store for repairs due to the shaved firing pin. An ATF agent went to the store, 

reviewed the repair invoice, saw that the firearm was brought in by an 

individual who was not the original purchaser but was someone from whom 

this same ATF agent had previously seized a .50 caliber rifle, and took custody 

of the firearm.144

We asked MacAllister why she believed there was sufficient evidence to 

shave the firing pin in order to render the rifle inoperable, but not to seize the 

firearm during the traffic stop that occurred shortly after the transaction was 

completed. She said that she did not think there was enough information 

 

144 As we discuss below, this individual was connected to Avila and made admissions to 

the ATF agent when questioned about the disabled rifle. 

 
184 

about the purchase at that time to seize the gun, and that when she talked to 

Hurley about what could be done about the purchase, he agreed that shaving 

the firing pin was acceptable even though the evidence was insufficient to make 

a seizure. MacAllister told us that if there had been sufficient cause to seize 

the gun, the firing pin would not have been shaved because they probably 

would have seized it. 

Hurley told us that while he could not recall the particular underlying 

facts associated with this transaction, he recalled advising ATF that shaving 

the firing pin was acceptable. He said this advice would have been based on a 

judgment at that time that there was also probable cause to seize the firearm. 

Hurley said he would not have authorized shaving the firing pin if there had 

not been probable cause to seize the weapon. Hurley said he recalled a 

conversation with ATF agents in which they discussed concern about the risk 

of losing the gun, but also discussed that the sale was of interest to the 

investigation because it would possibly connect others to the conspiracy. 

A second notable example of FFL2’s cooperation with ATF occurred in 

August 2010, when the store manager contacted Voth to ask how FFL2 should 

handle a potential order from Patino. The manager sent Voth an e-mail on 

August 25, 2010, advising that Patino wanted to purchase 20 of a particular 

model of firearm. The manager stated that FFL2 only had four in inventory 

and would need to order the additional 16 to make the sale. The manager 

stated, “I am requesting your guidance as to whether or not we should perform 

the transaction, as it is outside of the standard way we have been dealing with 

him.” Voth provided the following response: 

Thank you very much for contacting us regarding Mr. Patino and 

this order/inquiry. We (ATF) are very much interested in this 

transaction and would like to coordinate (with your cooperation) 

the delivery of these firearms to Mr. Patino under our direction; i.e. 

date, time, etc. Be assured no enforcement action will take place 

on or near the [FFL2] property. We have other matters pressing 

but late next week (Thursday/Friday) would be good timing for us. 

Another technique to allow for greater control would be if you are 

willing to request a partial down payment from Mr. Patino for a 

“special order.” This tends to increases [sic] the individual’s future 

compliance when they are already financially invested in the 

situation. 

In summary our 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 

([FFL2]) willingness to cooperate and assist us. 
185 

Special Agent Hope MacAllister (CC’d in this e-mail) is the ATF case 

agent for this investigation. Please coordinate this delivery of these 

firearms to Mr. Patino through her [. . .] or by contacting me when 

she is not available.

Thanks again for your cooperation and support of our joint 

mission. 

In another e-mail later that day, Voth asked the manager to coordinate with 

ATF when Patino made the down payment because ATF wanted to bring to the 

store a police dog trained to detect the odors of chemicals associated with 

certain narcotics drug. This never occurred, however, because the sale never 

took place. 

We asked Voth why, in light of his assertion that he had previously 

advised FFL2 that ATF could not provide guidance about whether a sale should 

or should not be made, he would tell FFL2 in this instance that ATF wanted it 

to complete the sale. Voth told us that by this time in the investigation, Hurley 

had concluded that there was sufficient probable cause to seize firearms from 

individuals like Patino involved in the trafficking conspiracy. He said that he 

spoke with Hurley about this particular situation and that he (Voth) viewed the 

arrangement as a controlled delivery that ATF intended to seize. Voth said he 

should have stated in his e-mail to the manager that ATF could not advise the 

FFL about whether it should make the sale. 

We found that Voth’s request to the manager of FFL2 on this occasion 

reflected ATF’s influence over the FFLs, and its interest throughout the case 

that FFL2 and FFL1 continue making sales to the Operation Fast and Furious 

straw purchasers because doing so advanced ATF’s investigative interests. For 

reasons we discuss in our analysis, we do not believe the arrangement between 

ATF and these FFLs was appropriate or responsible. 

H. ATF Initiates Several Seizures in June and July and the 

Investigative Phase of Case Draws to a Close 

For the first several months of Operation Fast and Furious, ASAC Gillett 

supervised Group VII and therefore the investigation. On June 6, 2010, 

supervision of Group VII was transferred to the other ASAC in the Phoenix 

office, James Needles. Needles’ supervision commenced within weeks of a 

request from ATF Headquarters that Phoenix draft an “exit strategy” for the 

case, and Newell’s own acknowledgement that given the volume and type of 

firearms being trafficked it was time to begin taking enforcement action in the 

investigation. 

Needles told us that that when he became the ASAC responsible for 

Operation Fast and Furious, SAC Newell instructed him to transition the case 

from the investigative to the prosecutive phase. Needles told us that he 
186 

directed the agents, including Voth, to be more aggressive by conducting 

interviews and seizing firearms when there was an opportunity to do so, and 

requested that MacAllister draft a list of potential charges against the subjects. 

Needles said the feeling was that the wiretaps had been given enough time to 

produce evidence and that it was time to bring the case to a close. Needles told 

us that the decision to be more aggressive with subjects was not based on 

concerns about how the case had been conducted prior to that time, but 

instead characterized the change as a shift in strategy. Needles said the feeling 

was that there was sufficient evidence to charge people at that point, and 

therefore seizing some firearms and trying to get some people to cooperate 

would not compromise the investigation. 

The subjects’ firearms purchasing activity in June and July 2010 

remained significant. Patino purchased another 49 firearms in June for nearly 

$38,000, and 44 firearms in July for over $31,000. Steward, after purchasing 

no firearms in February and March, and only 8 in May, purchased 42 firearms 

in June for nearly $30,000, including a Barrett .50 caliber rifle. Avila spent 

$23,000 in June on 15 firearms, including over $18,000 for two Barrett .50 

caliber rifles. Alfredo Celis, identified in the investigation in December 2009, 

purchased 51 firearms in June 2010 for over $37,000, including a Barrett .50 

caliber rifle; and Jacob Montelongo, identified by agents in January 2010, 

purchased 14 firearms in June for over $26,000, including two Barrett .50 

caliber rifles.145

According to the OIG’s review of ATF records, ATF agents initiated 4 

interdictions in June and July 2010 that resulted in the seizure of 52 

firearms.146

 

145 There was a total of 37 .50 caliber rifles purchased by Operation Fast and Furious 

subjects from November 13, 2009, to August 31, 2010. ATF records indicate that agents took 

custody of four: one on July 13 during a search warrant executed by the Phoenix Police 

Department based on an anonymous tip that office received; one on August 8 when an FFL did 

not transfer the rifle to an Operation Fast and Furious subject because there was an 

outstanding warrant for his arrest (the rifle had originally been purchased by another subject); 

one on August 31 after the FFL contacted ATF about the purchase of the rifle by an Operation 

Fast and Furious subject and agents contacted the buyer, who admitted to straw purchasing 

and abandoned the rifle to ATF; and one on September 17 when agents were notified by an FFL 

that an individual – the same subject who abandoned the .50 caliber to agents on August 31 – 

had brought a .50 caliber rifle in for repairs.

 The first occurred on June 4, 2010, when agents seized two 

handguns from an individual who, as described earlier in Part II.C., agents had 

determined had prior felony convictions and therefore could not lawfully 

146 Internal ATF records claim credit for 3 additional interdictions that resulted in the 

seizure of 32 additional firearms during this time period. However, the OIG reviewed these and 

other records and determined that these additional seizures resulted from seizures made by 

other law enforcement agencies, and therefore we did not count them as “ATF-initiated” 

seizures.
187 

possess any firearms. The individual was arrested at the scene for driving on a 

suspended license. ATF included him among the subjects referred to the U.S. 

Attorney’s Office for prosecution in Operation Fast and Furious, but he was not 

part of the January 19, 2010, indictment. 

The next ATF-initiated seizure occurred on June 30, 2010, when agents 

observed an Operation Fast and Furious subject Alfredo Celis purchase 20 AK47-style rifles from FFL1. After a police dog detected the odor of chemicals 

associated with narcotics on the $11,000 cash used to make the purchase, 

MacAllister consulted with Hurley, who said he believed there was probable 

cause to seize the firearms. ATF then requested that the Phoenix Police 

Department conduct a traffic stop of the vehicle. The officers made the stop 

based on the vehicle’s expired license plate and seized the firearms despite 

Celis’s claim that the guns were his and that he had bought them to go 

hunting. The officers released Celis. Following the traffic stop, the officers 

transferred custody of the firearms to ATF. According to English, Celis 

subsequently contacted the police department to request that the firearms be 

returned, and was told they would not be.147

ATF initiated a similar seizure on July 8, 2010, of 10 AK-47 style rifles 

that had been purchased by Patino at Celis-Acosta’s direction and transferred 

to a vehicle driven by two individuals. Phoenix Police Department officers 

stopped the vehicle and learned that the driver was a previously deported felon. 

The passenger was Francisco Ponce, a previously identified Operation Fast and 

Furious subject who had himself bought over 20 firearms. Ponce was carrying 

a concealed weapon permit and was released. Ponce and the 10 guns that 

were seized from the vehicle were included in the January 19, 2011, Operation 

Fast and Furious indictment. 

 The January 19, 2011, 

indictment of Operation Fast and Furious subjects included Celis and this 

June 30 purchase. 

ATF seized another 20 firearms on July 12, 2010, when after observing a 

transfer between a subject and some unknown individuals at the subject’s 

residence, ATF requested that police officers from the City of Peoria conduct a 

traffic stop of the unknown individuals’ vehicle. When officers attempted to 

stop the car, a chase ensued and shortly thereafter the vehicle crashed into a 

brick wall. One occupant escaped and the other was given a ticket and 

complaint for speeding, failing to obey an officer, trespassing, and failing to 

remain at the scene of an accident. The officers seized the 20 AK-47 style rifles 

and 2 pistols found in the vehicle. 

 

147 MacAllister cited this subject’s conduct in support of her contention that straw 

purchasers in Phoenix are trained how to respond to law enforcement and are less likely than 

in the past to admit they were buying firearms for another party.
188 

According to Voth, Needles never told him to be more aggressive about 

seizing firearms and the increase in interdictions and seizures in June and 

July 2010 was based on the totality of the evidence that existed at that time. 

Voth told us that the wiretap produced evidence of the purchaser’s intent that 

was sufficient to satisfy the U.S. Attorney’s Office’s legal threshold for seizing 

firearms. MacAllister also told us that seizures conducted in June 2010 and 

thereafter were attributable to the totality of the evidence, including that 

obtained from the electronic surveillance. 

However, there were other purchases surveilled during this period that 

agents did not interdict, despite the totality of evidence the existed at that time. 

For example, on July 6, 2010, agents conducted surveillance of Patino as he 

purchased firearms from FFL1 in order to observe to whom Patino transferred 

the guns. Prior to the purchase, 

 

 

 

 

 Patino was observed arriving at FFL1 with his girlfriend 

approximately one hour later. There, agents observed Patino place 10 long gun 

boxes into his vehicle and depart. 

 

 

Officers assisting the surveillance subsequently observed a vehicle back 

up to the rear of Patino’s vehicle and both rear compartment doors open. The 

officers were unable to observe the transfer, but one minute later, both vehicles 

left and the officers followed Ponce to a residence, where they observed him 

open the rear door of the vehicle but could not see the activity. The vehicle left 

the residence about 15 minutes later and the officers conducted a traffic stop. 

Ponce identified himself, said he worked as a bouncer, and that he had $6500 

in the vehicle and was going to Lowe’s. Ponce was carrying a handgun, but 

had a permit. 

 Several minutes later, he was 

observed arriving at Celis-Acosta’s residence. 

The month of July also included a reminder to ATF and the U.S. 

Attorney’s Office of the destination and purpose of the firearms Operation Fast 

and Furious subjects were trafficking. According to an ATF investigative 

report, on July 1, 2010, approximately a dozen firearms were recovered in 

Sonora, Mexico “in the aftermath of a violent shootout between two rival 

Mexican drug cartels which resulted in twenty-one deaths (some news and law 

enforcement sources list the death toll up to twenty-nine killed).” One of the 

firearms recovered from the scene was purchased by Operation Fast and 

Furious subject Joshua Moore on November 11, 2009; another was purchased 

by an individual who ATF identified as a subject as a result of this recovery. 
189 

On July 15, Newell sent an e-mail to Burke and Hurley advising them of the 

incident, noting that 21 people had been killed and that “[f]irearms come from 

our area and ATF traces link one, maybe more, to our ‘Fast and Furious’ case.” 

Newell also attached a 13-slide PowerPoint presentation prepared by Mexican 

federal police that described the shootout and included graphic photos from 

the scene of bullet-ridden vehicles and those killed or arrested. 

Photos 4.4 and 4.5: Sonora, Mexico Seizure 

Source: ATF

VI. Operation Fast and Furious Moves Toward Indictment (August 2010 

- January 2011) 

Management in ATF’s Phoenix Field Division told the OIG that the end of 

July was the point when the activity in Operation Fast and Furious began to 

transition from investigation to indictment. From August to December 2010 
190 

the purchasing activity of subjects in Operation Fast and Furious dropped 

dramatically. ATF agents involved in the case conducted very limited 

surveillances of purchases during this time period. ATF seized several firearms 

during this period and in October 2010 began to conduct interviews of some 

Operation Fast and Furious subjects. Still, no arrests were made and no 

indictment was filed until January 19, 2011. 

On December 14, 2010, Customs and Border Protection Agent Brian 

Terry was shot and killed near Rio Rico, Arizona. Two firearms seized at the 

scene of the shooting had been purchased by Operation Fast and Furious 

subject Jaime Avila on January 16, 2010. On December 15, 2010, a day after 

Agent Terry’s death, ATF agents arrested Avila and charged him with making 

false statements on a Form 4473 for a firearms purchase he made in June 

2010. This charge was subsumed by the January 19, 2010, indictment of Avila 

and 19 other subjects from Operation Fast and Furious. 

In this section we describe some of the investigative activity ATF 

conducted during this period, the transition of the case towards indictment, 

and the explanations we were provided for the time it took to obtain the 

indictment. We also discuss the impact that the shooting of Agent Terry had 

on the timing of the indictment. 

A. Purchasing and Investigative Activities Decline 

The purchasing activity by Operation Fast and Furious subjects slowed 

dramatically in August 2010 and essentially stopped thereafter. ATF records 

show that 77 firearms were purchased by subjects in August. Of those, 49 

were purchased by an individual first identified as a subject that month and 14 

were purchased by Patino. A total of two firearms were purchased in 

September, both by Patino, and seven in October – six by Patino and one by 

another subject. MacAllister told us that she thought the drop in activity was 

attributable to Celis-Acosta becoming more involved in drug trafficking. We 

took note of the fact that the drop followed the seizures by ATF in June and 

July. 

ATF’s investigative activity also slowed in August. The final period of 

electronic surveillance commenced on August 3, 2010, but was short-lived 

because the subject apparently had discontinued use of the targeted cell 

phone. This surveillance was terminated on August 16, 2010. With respect to 

seizures, Voth told us that by the first week of August, Hurley had given ATF 

agents what Voth characterized as “blanket probable cause” to make seizures 

of firearms purchased by Operation Fast and Furious subjects, though he said 

he could not recall whether Hurley provided this guidance directly to him or to 

MacAllister. Hurley told us that he did not recall providing any “blanket 

probable cause” and said that he was not aware of any change in interdiction 

strategy after the last wiretap concluded in August. However, Hurley said the 
191 

investigation had progressed to a point by August, and possibly earlier, where 

if a subject’s firearms purchases reflected the previous pattern with respect to 

the model type and quantity, the firearms could be seized without an 

admission. 

There were five seizures between August and October 2010. On August 

19, 2010, agents seized nine AK-47 style rifles from an individual ATF had 

identified as a suspected straw purchaser earlier in the month. At ATF’s 

request, officers with the City of Glendale Police Department conducted a traffic 

stop and MacAllister interviewed the individual and the other occupant of the 

vehicle (who ATF also had identified earlier in the month). The purchaser said 

he was planning to sell the guns over the internet to help his mother financially 

and admitted he had previously bought and sold approximately 29 firearms. 

MacAllister advised him of the laws concerning unlicensed dealing and seized 

the firearms. The individual was then released but was later among those 

indicted on January 19, 2011. 

On August 31, 2010, an ATF agent received information from FFL2 that 

an individual had just purchased a .50 caliber rifle for over $9,000. This was 

the same individual who, on August 5, had bought two rifles that were 

recovered on August 18 as part of large seizure by the Phoenix Police 

Department. The ATF agent believed the individual might be a straw purchaser 

and contacted the individual about the .50 caliber rifle. The individual agreed 

to meet with the agent and abandoned the gun to the agent at that time. He 

also told the agent that childhood friend Jaime Avila had recruited him 2 

months earlier to buy firearms “to be used in the drug war in Mexico.” The 

individual said that straw purchasers had been paid $70 per pistol, $100 per 

rifle, and $500 per .50-caliber rifle. The agents made no attempt to locate and 

question Avila in response to these statements. 

Then, in September 2010, this same individual attempted to get the .50 

caliber rifle with the shaved firing pin repaired that had been purchased 

previously from FFL2 by an Operation Fast and Furious suspect. The ATF 

seized the rifle and the individual told ATF agents that he brought the rifle in 

for repairs at the request of an assistant to a Sinaloa cartel leader. Despite this 

individual’s connection to two Operation Fast and Furious subjects, his 

admission about engaging in straw purchasing activity, and his connection to 

the Sinaloa cartel, agents did not arrest him. 

 

 

B. Delays in Moving the Case to Indictment 

As noted above, Newell told us that in approximately July 2010 he 

concluded there was sufficient evidence to move the case to indictment and 

that he directed ASAC Needles, who began overseeing Operation Fast and 
192 

Furious in June 2010, to begin that transition. Needles said the assessment of 

the wiretaps at that point was that they were not producing the evidence that 

ATF had hoped they would about how the firearms were being paid for and 

transported to Mexico. Needles told us the consensus among him and Newell, 

and McMahon at ATF Headquarters, was, “let’s go with the evidence we have 

and the charges we have and start talking to these people and seeing what 

information they’re going to give us and where that’s going to lead us.” Needles 

said he did not discuss this with MacAllister but did with Voth, who he told us 

was in complete agreement with moving the case toward indictment. 

The U.S. Attorney’s Office had similar discussions in the summer of 

2010. Morrissey told us that it appeared to him that the wiretaps had failed to 

identify how firearms were being transported to Mexico, which he understood 

was one of the investigative goals, and that he had discussions with Hurley and 

Burke about bringing the investigation to a close. Burke told us that he agreed 

with this assessment. Hurley told us that at the same time he and agents on 

the case were discussing the possibility of pursuing an eighth wiretap, he 

understood that there were conversations between ATF Headquarters and SAC 

Newell about stopping the wiretaps and moving the case toward indictment. 

He told us that it was his impression “that everybody who was looking at it was 

getting the feeling like there wasn’t going to be a likely benefit to pursuing line 

number eight.” He said that he did not disagree with the decision. 

Newell e-mailed Burke on July 14, 2010, about some recent seizures in 

the investigation and to schedule a briefing about the case in August. Several 

days later, on July 19, Voth e-mailed Hurley and MacAllister that the “[t]he 

case is progressing nicely and [he is] very pleased with how things are turning 

out,” and that Needles had requested that they meet “to discuss how we 

envision the indictment phase taking shape.” 

The timing of the indictment became very much a moving target. Based 

on our interviews and review of contemporaneous documents, it appears that 

discussions in August between ATF and the U.S. Attorney’s Office created some 

expectation that an indictment might be filed by September or October 2010. 

This did not occur, and the first firm date for an indictment and press 

conference was December 7. However, this date also passed without an 

indictment, and the next proposed target date – which appeared in an e-mail 

from Cunningham to Burke on the same day of Agent Terry’s murder, but 

before the shooting – was the first or second week of January 2011. Under 

circumstances we describe later, the case was ultimately indicted on January 

19, 2010. 
193 

Newell and Needles said that during this fall 2010 period, officials at ATF 

Headquarters contacted the Phoenix Field Division regularly to inquire about 

the status of the indictment.148 For example, in an e-mail to McMahon on 

October 19, Newell informed McMahon that the U.S. Attorney’s Office had 

pushed back the indictment date to December 7, “saying they need this time to 

‘prepare’. I have a meeting scheduled with [Burke] to discuss but they aren’t 

budging so there’s not much we can do.” Newell then noted for McMahon that 

the Operation Wide Receiver indictment was on hold until the Operation Fast 

and Furious case was indicted “since they are connected.” After Assistant 

Director Mark Chait, McMahon’s supervisor, learned about the delay, he wrote 

an e-mail on October 29 to Newell with a copy to McMahon, stating “I’m 

concerned that we are not shutting down the activity waiting on an 

indictment.” That same day, Newell forwarded Chait’s e-mail to ASAC Needles 

and instructed Needles to speak with Voth and that they needed to provide 

Newell with a status report on purchases made by suspects over the past 30 

days. Later that same day, Needles replied and told Newell that of the 42 straw 

purchasers identified to date, only 1, Patino, had made any purchases during 

that time period. He stated that the purchase was on October 8, and that all 

five firearms were immediately seized.149 Needles further indicated that the 

subjects had been flagged in the National Instant Criminal Background Check 

System and that ATF would be notified of any purchases.150

Newell forwarded Needles’ e-mail to McMahon, stating that it confirmed 

what Newell previously told McMahon and Chait about the purchases slowing. 

Newell also told him that one of the reasons for this change was that CelisAcosta was involved in a shooting incident at his home that local officers 

responded to, and that agents had been successful over the last several 

months “seizing guns before they head south” after responding to calls from 

cooperating FFLs. 

We identified several factors that contributed to the delay in obtaining 

the indictment. The first related to the financial component of the 

investigation. Hurley also told us that by August the subjects likely to be 

indicted were sufficiently established that he sought ex parte orders from the 

 

148 We further describe these officials’ frustration and their efforts to hasten the 

indictment in Chapter Five.

149 MacAllister told us that the basis for this seizure was that Patino admitted to using 

a false address on the Form 4473. MacAllister said she did not know whether she would have 

had the guns seized without this admission, and told us she probably would have consulted 

with the U.S. Attorney’s Office.

150 The National Instant Criminal Background Check System, or NICS, is administered 

by the FBI and used by FFLs to determine whether a prospective buyer is eligible to buy 

firearms or explosives.
194 

court for tax return information. Hurley said the analysis of that information 

was important for the money laundering charges that he anticipated including 

in the indictment. This information and analysis was also important for the 

potential forfeiture of property from the subjects, such as residences and 

vehicles. The tax return information was not obtained until November, and 

some not until December. 

Second, ATF and the U.S. Attorney’s Office continued to have 

discussions through September and October about the number of subjects to 

include in the indictment. Hurley stated in an August 16, 2010, memorandum 

to Burke, described further below, that the first indictment in Operation Fast 

and Furious would focus on the top 10 or 12 subjects in the trafficking 

conspiracy. Newell told us that ATF initially sought to include approximately 

40 subjects, but that the U.S. Attorney’s Office pushed back on that figure and 

ATF agreed in approximately September to keep the indictment to about 20 

subjects. Hurley stated to a colleague in a September 21 e-mail that he was 

hoping to indict the 10 most culpable defendants in late October, but that ATF 

expanded this group to 15. He told the colleague that this change might add 

some time for ATF to prepare the necessary translations of intercepted 

telephone calls and for him to review this and other materials, but that he was 

still hoping for a “late October/early November GJ date.” Hurley wrote this 

same colleague in October that he had revised his target indictment date to 

December 7, a date that as noted above was also missed. 

Third, Hurley might not have received from ATF a complete set of the 

reports of investigation and translations of intercepted telephone calls until 

October 5, 2010. Hurley told us that he recalled that was the date MacAllister 

provided him a thumb drive containing the information. MacAllister also told 

us the thumb drive was provided on that date and recalled that it was in 

response to a request from Hurley. Hurley said the materials totaled over 

3,000 pages and took a substantial amount of time to review. However, 

MacAllister also told us that she also provided Hurley a disc in June 2010 that 

contained the first 300 reports of investigation in the case to facilitate the move 

towards an indictment, which she expected would come by the end of the 

year.151

 

151 On June 8, 2010, ATF had provided to Hurley by e-mail a 48-page “overt acts” 

document that had been prepared by an agent on Group VII. The document, which was 

intended to help Hurley draft the indictment, listed what ATF considered overt acts in 

furtherance of the criminal conspiracy committed by 31 subjects in the case from September 

22, 2009, to June 6, 2010.

 As we discuss below, it appears possible that the disc MacAllister 

described was provided to another prosecutor who expressed an interest in 

assisting Hurley on the case. 
195 

Fourth, Hurley told us that he was occupied by several other matters 

through at least October 2010, including some emergency issues related to an 

immigration bill being litigated in the federal district court and other cases of 

his own. Despite Hurley’s workload, no other prosecutor worked on Operation 

Fast and Furious during this period, even though one was available. As 

described in Chapter Three, Department Trial Attorney Laura Gwinn was 

assigned in 2009 to prosecute subjects from Operation Wide Receiver. Gwinn 

first reached out to Hurley in March 2010 to discuss whether indicting the 

Operation Wide Receiver subjects would cause any problems in Operation Fast 

and Furious, and had subsequent communications on that subject with 

Hurley. On June 17, 2010, following the first Operation Wide Receiver 

indictment in May, Gwinn’s supervisor in the Department’s Criminal Division 

contacted the U.S. Attorney’s Office about any other cases Gwinn could help 

staff. The U.S. Attorney’s Office responded that she could “begin working with 

Hurley on the wire” – Operation Fast and Furious – and take the lead on 

another matter. 

Gwinn told us that she was never really sure if she was assigned to the 

Operation Fast and Furious case, but was merely waiting for word from Hurley 

on whether he needed help. However, she contacted him on June 22 about her 

“assignment to 2 cases with you,” and followed up the next day with the offer to 

begin reviewing any materials he was willing to send her. She again reached 

out Hurley on July 16 about her travel plans to Phoenix and stated, “[i]f you 

have additional documents re the wiretap (10 day reports ROIS etc.) that I can 

peruse it be helpful. Or any writing tasks that need to be done.” Then, on July 

29, 2010, Gwinn e-mailed Hurley to ask whether MacAllister had been able to 

place the reports of investigation on a disc so that Gwinn could begin reviewing 

the materials. Gwinn specifically asked whether she could help Hurley draft 

the prosecution memorandum or an indictment, and suggested “if you have 

any transcripts/call line sheets that I could start digesting, that would be 

great, too.” Hurley replied that he did not yet have the disc but expected it the 

following week, and that he was busy with the final Operation Fast and 

Furious wiretap application and another matter. He identified some other 

cases that he said he hoped Gwinn would be able to handle, at least one of 

which Gwinn in fact began working on in August. 

On August 18, 2010, Gwinn again inquired with Hurley about whether 

MacAllister had provided him the disc containing the Operation Fast and 

Furious reports. We could not locate a reply from Hurley, but Gwinn told us 

that she in fact did receive two discs from MacAllister and that she reviewed 

the materials.152

 

152 As we discuss further in Chapter Five, Gwinn told us that it was apparent to her 

when she reviewed the reports that ATF agents were not seizing weapons in Operation Fast and 

 The next month, Gwinn contacted Hurley again and stated 

(Cont’d.)
196 

that she hoped she could provide some assistance on the Celis-Acosta case 

while she was in the Phoenix area because she did not have enough work to 

keep her busy the entire week. As noted earlier, Hurley told Gwinn in reply 

that ATF was still putting together binders on each defendant and had 

expanded the list of indictees to 15, but that he was still hoping to indict the 

case in late October or early November. Gwinn responded, “[a]s you know, I 

am eager to assist you with anything that would be helpful to you on CelisAcosta, so feel free to assign tasks to me!” 

Hurley told us that he did not recall Gwinn having any involvement with 

Operation Fast and Furious, nor did he recall her requests for the reports of 

the investigation in the case. He said another of his cases was transferred to 

Gwinn (as we noted above) and that this allowed him to spend more time on 

Operation Fast and Furious. As we discuss in the analysis, we believe failing 

to use Gwinn, or any other available prosecutor, on Operation Fast and 

Furious in light of Hurley’s workload and the substantial volume of 

investigative material in the case was a significant mistake. 

In mid-July 2010, Newell made arrangements to provide Burke a briefing 

about ATF OCDETF Strike Force cases. Newell told Burke in an e-mail that: 

you need to know what this ATF Strike Force is doing, one case in 

particular – “Fast and Furious.” For instance, in just the past 24 

hours and in 3 separate incidents they have seized over 100 guns, 

225 rotary drum magazines (fire 75 rounds of AK47 ammo each) 

and ammo. In the past 30 days it’s been double that. This is the 

biggest case this group is working on but they have several other 

cases that aren’t far behind. 

Burke replied, “Awesome! Listo para ti.” 

The briefing took place on August 17, 2010. The day before this briefing, 

Hurley provided Burke with a memorandum updating him on the status of 

Operation Fast and Furious. Hurley stated in the memorandum that “we 

currently anticipate taking the investigation down in October,” that CelisAcosta remained the primary target of the investigation, and that the first 

indictment would focus on the top 10 or 12 subjects in the trafficking 

conspiracy. Hurley’s memorandum also stated that the investigative team was 

still conducting surveillance on one telephone, but that it appeared the subject 

had discontinued the use of the number and that the surveillance would be 

 

Furious despite having probable cause to do so. She said that she assumed this was a strategy 

that had been discussed and agreed to by ATF and the U.S. Attorney’s Office. She did not 

discuss her views of the case with anyone in Phoenix or with her supervisors at in the 

Department’s Criminal Division.
197 

terminated. He stated that agents also were trying to identify another number 

for the subject and anticipated seeking another wiretap on that line in order to 

focus on what Hurley described as the “drug trafficking side of the 

organization.” Burke told us that he did not recall the memorandum giving 

him any expectation for the timing of the indictment. 

Hurley’s memorandum concluded by stating that the investigation had 

so far interdicted approximately 200 firearms and that “agents have pursued 

interdiction of the firearms transferred to the conspirators where possible. 

Agents have not purposely let guns ‘walk.’ Interdiction in some cases has been 

hampered by counter surveillance used by the targets.” Hurley told us that he 

included this in the memorandum because, on the previous day, Voth told him 

about an e-mail that Voth had received from an agent about a recent seizure. 

The agent questioned whether Phoenix was going to stop any subjects soon or 

if it was “just letting these guns walk.”153

Burke told us that he attended the briefing with Hurley, and possibly 

Morrissey. The briefing addressed Operation Fast and Furious and several 

other cases. Burke said what struck him most about the information 

pertaining to Operation Fast and Furious was the number subjects that were 

involved in the trafficking and that ATF knew how many were involved, and the 

challenges of investigating straw purchasers that are easily replaced. He told 

us that he asked Newell and Voth at the briefing whether interviews of the 

subjects had been or were being conducted. Burke said the response he got 

back was that not much would be learned from such interviews and that 

taking that step would tip off other subjects to ATF’s knowledge of their 

activities. 

MacAllister told us that during the period between the last wiretap in 

August and Agent Terry’s murder in December, her time was occupied with 

completing Operation Fast and Furious investigative reports and serving as the 

ATF case agent on a significant weapons trafficking case. She told us that she 

could not recall ever checking in with Hurley during this time on the status of 

Operation Fast and Furious, but assumed he was working on the indictment. 

Co-case agent English told us that from the time the wiretap ended in August, 

it took agents two months to gather all of the necessary investigative records 

for Hurley and to be able to direct him to particularly significant information in 

that material. 

Hurley noted in a November e-mail to his management that agents were 

approaching subjects to see if they could be developed as cooperators. English 

told us that interviews were conducted with subjects who ATF believed were 

 

153 We described Voth’s response to this e-mail earlier in footnote 130.
198 

less likely to report the contact to Celis-Acosta. Beginning in late October 

2010, agents conducted interviews of several Operation Fast and Furious 

subjects, one of whom admitted to being a straw purchaser. After the January 

19, 2011 indictment, most of the subjects who were interviewed incident to 

their arrests admitted being straw purchasers and identified co-conspirators in 

the firearms trafficking. 

As the case was moving toward indictment, ATF continued to receive 

information about recoveries of firearms purchased by Operation Fast and 

Furious subjects. For example, a rifle purchased by Steward was recovered on 

September 18, 2010, at the scene of a confrontation between the Mexican 

military and an armed group. Two rifles purchased by Alfredo Celis were 

among the 20 recovered on September 24 at the scene of a similar 

confrontation. A rifle purchased by Patino was among the firearms recovered 

on September 28 at the scene of a gun battle between the Mexican Marines and 

members of the Gulf Cartel. On November 27, the Mexican military, after 

stopping a suspicious vehicle and tracking the driver as he ran to a house, 

recovered 10 firearms, 7 of which has been purchased by Chambers. 

On November 4, 2010, after a gun battle, Mexican police arrested eight 

members of the Sinaloa drug cartel in connection with the kidnapping and 

slaying of the brother of the former Chihuahua state attorney general.154

On November 16, ATF advised Hurley of the recovery and connection to 

Operation Fast and Furious. Hurley in turn informed Burke and other 

managers in the U.S. Attorney’s Office and stated that “ATF provided this 

information to keep this office from being surprised by any official inquiry, not 

because they thought it changed the posture of the case.” Several days later, 

in an e-mail exchange with a colleague about enforcing gun sale laws at FFLs 

and gun shows, Burke noted that his office was about to indict a wiretap case 

that was going to bring a lot of attention to straw purchasing of assault 

weapons. He stated, “[s]ome of the weapons bought by these clowns in Arizona 

have been directly traced to murders of elected officials in Mexico by the 

Cartels, so Katie-bar-the-door when we unveil this baby.” 

 Two 

of the firearms recovered at the scene of the gun battle traced back to 

Operation Fast and Furious – one purchased by Steward, and the other by 

Patino. On November 15, 2010, ATF Phoenix learned of this recovery and the 

connection to Operation Fast and Furious from an analyst at ATF 

Headquarters. Voth informed Newell of the recovery on November 15, and then 

informed ATF’s Acting Attaché in Mexico City. 

 

154 According to the Analyst Chief in ATF’s Mexico City Office, the brother was killed by 

strangulation. 
199 

C. Murder of Agent Terry 

On December 14, 2010, four Customs and Border Protection agents, 

including Brian Terry, were conducting law enforcement operations near Rio 

Rico, Arizona, approximately 18 miles north of the United States-Mexico 

border, when they spotted at least five suspected aliens, at least two of whom 

were carrying rifles. The suspected aliens refused the agents’ demand that 

they drop their weapons, and a shootout occurred. Agent Terry was shot in the 

exchange and died soon afterward. One of the suspects was shot and taken 

into custody at the scene. Five suspects, including the suspect who was shot, 

were subsequently charged with Terry’s murder or other related crimes. Three 

suspects remain at large and are fugitives. 

Law enforcement officers and agents searched the scene of the shooting 

and recovered, among other items, two AK-47 style rifles. A trace of the serial 

numbers showed that the firearms had been purchased by Jaime Avila on 

January 16, 2010, from FFL1.155

According to ATF records, agents never received advance notice of any of 

Avila’s purchases, but they did conduct surveillance on Avila on November 24, 

2009, shortly after he purchased five FN 5.7 pistols. During that surveillance, 

ATF agents were able to link Avila, for the first time, to another suspect in the 

case – Patino. ATF did not learn about Avila’s January 16 purchases until 

three days later on January 19, 2010.

 As described in Section IV of this chapter, 

ATF agents first identified Avila as a suspected straw purchaser involved with 

other subjects in Operation Fast and Furious on November 24, 2009, and 

added him as a suspect in ATF’s case management system on November 25, 

2009. Between December and June 2010, Avila purchased an additional 47 

firearms for approximately $50,000. Avila had no reported wages or income for 

the first three quarters of 2010 and approximately $10,000 in 2009. 

156

After ATF learned of the connection between the Terry shooting and 

Operation Fast and Furious, agents reviewed the Form 4473s that Avila had 

executed between November 2009 and June 2010. At approximately 8:00 p.m. 

on December 15, agents drove to the address Avila provided on the forms in 

order to make contact with him. The current residents at the address told the 

 

155 The FBI tested the two firearms recovered at the scene of the shooting and was 

unable to determine whether or not either gun was used to shoot Agent Terry.

156 Avila’s purchase that day included a total of three AK-47 style rifles. According to 

co-case agent English, Avila purchased the firearms from FFL1 on Saturday evening, January 

16, and FFL1 faxed ATF the Form 4473 on January 17. The following day was Martin Luther 

King Day and therefore case agents did not see the Form 4473 until January 19. The Form 

4473 provided to the OIG for this purchase does not contain any markings that indicate the 

date on which it was faxed to ATF.
200 

agents they had lived there since April 2010 and that they did not know 

Avila.157

The agents and Avila discussed Avila’s current residence and 

employment status. With respect to purchasing firearms, Avila initially stated 

that that he had only purchased three AK-47 style rifles and that he sold those 

to a friend. After further questioning, Avila stated that he had purchased 

approximately 40 firearms and admitted that they had been purchased for 

someone else. He further stated that he had been paid approximately $50 for 

each firearm purchased. The agents asked him additional questions about the 

money he used to purchase firearms and then showed him the Form 4473 for 

the January 16, 2010, purchase. Avila said he recalled filling out the form and 

that he had purchased the guns for another person who had given him the 

money, but could not specifically recall making the January 16 purchase. 

Agents also showed Avila the Form 4473 for a purchase of three pistols on 

June 15, 2010, and Avila stated that the written numbers on the form did not 

look like his and said that his identification had been stolen at some point and 

his vehicle broken into.

 Agents then traveled to the address listed for Avila with the Arizona 

Department of Transportation and spoke with Avila’s father and sister. Avila 

arrived at the residence a short time later and the agents told him they wanted 

to talk to him about firearms he had purchased. 

158

The U.S. Attorney’s Office drafted a complaint charging Avila with 

knowingly making false statements in connection with firearms purchases on 

June 12, 2010 (3 pistols), and June 15, 2010 (3 pistols and 1 .50 caliber rifle), 

in violation of 18 U.S.C. § 924(a)(1)(A). The complaint charged that Avila 

represented on the Form 4473s that he lived at an address that he in fact knew 

he did not. The complaint did not include Avila’s January 16, 2010, purchase. 

Hurley told us that this was because he was advised the FBI wanted to 

preclude the possibility that Avila might plead guilty to those charges and 

thereby insulate himself from liability for Terry’s death, should any evidence 

connecting him to the murder be discovered. The complaint was filed on the 

 Agents reiterated that Avila should be truthful, and 

Avila responded that it might be better to be locked up because people might 

now be looking for him, and also stated that he would not provide the agents 

with the names of these individuals. After the interview concluded, Avila was 

arrested, read his Miranda rights, and transported to the Maricopa County jail. 

 

157 The complaint filed against Avila stated that the property was sold at a public 

auction on April 5, 2010.

158 According to the ATF report, the handwritten numbers on the June 15, 2010, Form 

4473 appeared to be written by the same individual who wrote the numbers on the January 

16, 2010, Form 4473. The report also stated that the vehicle break-in occurred after June 15, 

2010. 
201 

afternoon of December 16, 2010. Avila made his initial appearance before the 

court, waived his probable cause hearing, and was released on conditions. 

Witnesses from the U.S. Attorney’s Office told us that the Terry murder 

had no effect on the timing of the indictment for Operation Fast and Furious. 

Morrissey told us that given the volume of information ATF sent Hurley in 

October 2010, completing the indictment by January was a significant 

accomplishment for what Morrissey said was the most complex gun indictment 

he had ever seen. Cunningham said the actual drafting of the indictment 

began in October when Hurley received the ATF reports and that prior to this, 

Hurley was consulting with other attorneys about how best to charge the drug 

and money laundering counts. As we noted earlier, Hurley told us he had done 

some work on the draft indictment before the Terry shooting, but did not 

complete a rough draft until afterward. 

On December 15, 2010, after the Terry shooting, Criminal Chief 

Cunningham e-mailed U.S Attorney Burke with proposed dates for the 

indictment (as early as January 19), the executions of search and seizure 

warrants, and the press announcement for the case. Hurley told us that it 

took him approximately one month to draft the indictment. English, the agent 

who testified before the grand jury, said she spent a week straight in Hurley’s 

office to compile the charging document against the 20 defendants. 

A week after Agent Terry’s murder, Newell provided Deputy Assistant 

Director McMahon some figures reflecting recoveries of Operation Fast and 

Furious firearms. According to data compiled by Voth, there were 

approximately 241 firearms recovered in Mexico and 350 in the United States. 

Newell stated to McMahon: 

For what it’s worth and since I don’t like the perception that we 

allowed guns to “walk,” I had David Voth pull the numbers of the 

guns recovered in Mexico as well as those we had a direct role in 

taking off here in the US. Almost all of the 350 seized in the US 

were done based on our info and in such a way to not burn the 

wire or compromise the bigger case. The guns purchased early on 

in the case we couldn’t have stopped mainly because we weren’t 

fully aware of all the players at that time and people buying 

multiple firearms in Arizona is a very common thing. 

In fact, the OIG identified only 105 firearms that were seized by ATF 

agents or by other law enforcement officers at ATF’s request. In addition, 

regardless of what time period Newell intended when he referred to firearms 

“purchased early on in the case,” we have described several instances in this 

Chapter where ATF agents had sufficient cause to seize firearms, but did not. 

We also note that Newell did not attribute the lack of more seizures to the legal 

standard imposed by the U.S. Attorney’s Office. To the contrary, Newell’s e-
202 

mail to McMahon reaffirmed that the actions taken, or not taken, by agents 

during the case were driven by the imperative to not “compromise the bigger 

case.”159

On January 19, 2011, a Federal Grand Jury returned an indictment 

against 20 Operation Fast and Furious subjects and related individuals. The 

indictment included charges of conspiracy, dealing in firearms without a 

license, making false statements in the acquisition of firearms, and several 

drug and money laundering counts. Because the indictment included charges 

against Avila, the government moved to dismiss the December 16, 2010, 

charges previously filed against him. On January 21, 2011, the court approved 

four applications for search warrants for locations associated with the firearms 

trafficking conspiracy. 

The indictment remained sealed until January 25, 2011, in order to 

preserve operational security and agent safety as arrests and searches were 

conducted. The arrest operation involved agents and officers from multiple 

federal and local law enforcement agencies. The four search warrants were 

executed early in the morning on January 25. Arrests followed, and by the end 

of the day 18 of the 20 defendants had been apprehended and made their 

initial court appearances. Celis-Acosta was among the two defendants not 

located that day. A fugitive warrant was issued and Celis-Acosta was arrested 

on February 2, 2011, in El Paso, Texas. As of August 1, 2012, 14 defendants, 

including Avila, have entered guilty pleas to 1 or more counts of the 

indictment. 

Officials from the U.S. Attorney’s Office, ATF, the DEA, and IRS also held 

a press conference on January 25 to announce the Operation Fast and Furious 

indictment and arrests, as well as several other firearms trafficking 

indictments.160

 

159 This was not the only time ATF Phoenix provided inaccurate information about 

seizures made in the case. For example, in July 2010, the ATF’s then-Assistant Attaché to 

Mexico inquired about the number of .50 caliber rifles Patino had purchased because one had 

just been recovered in Mexico that was used to shoot at members of the Mexican military. The 

Assistant Attaché asked, “How many 50 cals did this guy buy? Is he still buying guns? And r 

u guys taking off any guns before they get here.” The agent who was serving as acting 

supervisor in Voth’s absence replied that Patino had purchased five to eight .50 caliber rifles, 

that he was still purchasing but at a slower pace, and that agents were seizing guns every 

chance they could. He also stated, inaccurately, “[i]n recent weeks, we have seized hundreds of 

guns from the suspects in this case.”

 At the conclusion of the prepared remarks, a member of the 

media in attendance reportedly asked whether agents allowed firearms to enter 

160 As we describe further in Chapter Five, neither the Attorney General nor the 

Assistant Attorney General for the Criminal Division, Lanny Breuer, attended the press 

conference.
203 

Mexico as part of the investigation. SAC Newell responded, “Hell, no,” but said 

subjects sometimes defeated the surveillance and that firearms could end up in 

Mexico that way. 

D. Summary of Firearms Purchases and Seizures 

ATF maintained detailed records of the volume and cost of firearms 

purchased by Operation Fast and Furious subjects, as well as any recoveries of 

these firearms in the United States and Mexico. We have provided some of this 

information at various points in this chapter. According to the records we 

reviewed, the subjects purchased 1,961 firearms from October 2009 to 

December 2010 for $1,475,948. The top seven subjects were responsible for 

nearly 80 percent of the purchases. The distribution among the top seven 

purchasers is shown below. The table also indicates how many of these 

individuals’ purchases were recovered as of February 2012. 

Table 4.1: Purchases from October 2009 to December 2010 and 

Recoveries through February 2012 

Subject

Number of 

Firearms

Purchased Total Cost

Number of 

Firearms 

Recovered

Uriel Patino 723 $575,411 184

Sean Steward 290 $175,308 113

Alfredo Celis 144 $90,131 75

Joshua Moore 141 $107,972 50

Jacob Montelongo 109 $145,294 20

Jacob Chambers 72 $27,751 34

Jaime Avila 53 $54,968 8

Others 429 $299,113 226

Total 1,961 $1,475,948 710

Source: ATF

The monthly distribution of purchases is illustrated in the charts below. Chart 

4.1 illustrates the cumulative monthly totals for each of the top seven 

purchasers and the remainder of the purchasers (designated “others”) and 

Chart 4.2 illustrates the aggregate purchases by month.
204 

Chart 4.1: Cumulative monthly purchases from October 2009 to December 2010 

Source: ATF

0 

300

600

900

Oct 

2009

Nov 

2009

Dec 

2009

Jan 

2010

Feb 

2010

Mar 

2010

Apr 

2010

May 

2010

June 

2010

July 

2010

Aug 

2010

Sept 

2010

Oct 

2010

Nov 

2010

Dec 

2010

Number of firearms

Date

Cumulative Monthly Totals of Firearms Purchased by Fast and Furious Suspects

Jaime Avila Alfredo Celis Jacob Chambers Jacob Montelongo

Joshua Moore Uriel Patino Sean Steward Others
205 

Chart 4.2: Aggregate monthly purchases from October 2009 to December 2010 

Source: ATF

0 

300

600

900

1200

1500

1800

2100

Oct 

2009

Nov 

2009

Dec 

2009

Jan 

2010

Feb 

2010

Mar 

2010

Apr 

2010

May 

2010

June 

2010

July 

2010

Aug 

2010

Sept 

2010

Oct 

2010

Nov 

2010

Dec 

2010

Number of firearms

Date

Aggregate Monthly Totals of Firearms Purchased by Fast and Furious Suspects
206 

As noted, the ATF also maintained records about the recovery of 

firearms in the United States and Mexico. In preparation for the January 

2011 press conference announcing the indictments in Operation Fast and 

Furious and several other investigations, ATF prepared a map reflecting the 

distribution of the 372 firearms recovered in the United States and the 195 

recovered in Mexico that ATF had documented by that time. We reproduce 

that map on the next page as Map 4.1.161 As part of our review, we sought 

to determine the number of seizures during the course of the investigation 

that Group VII initiated or seizures that were made at the direction of Group 

VII. We concluded that ATF-initiated seizures totaled 105 firearms – we 

described the circumstances of most these incidents earlier in this chapter. 

The information is summarized below in Table 4.2. 

 

161 During the course of our review, the ATF provided the OIG updated recovery 

figures. According to that data, by February 2012, an additional 118 firearms were 

recovered in Mexico and 25 in the United States.
207 

Map 4.1: Operation Fast and Furious Recoveries 

Source: ATF
208 

Table 4.2: ATF Group VII-initiated seizures 

Purchaser 2010

20-Feb 4-Jun 30-Jun 8-Jul 12-Jul 3-Aug 19-Aug 31-Aug 17-Sep 8-Oct

Avila Davila, Erick 1

Celis, Alfredo 20

Fernandez, Jonathan 9

1

Moore, Michael 1

Patino, Uriel 37 1 10 5

20

Total 37 1 20 10 20 1 9 1 1 5

Source: OIG analysis of ATF data
209 

VII. OIG Analysis 

In this section we analyze key aspects of the conduct of Operation Fast 

and Furious, including early decisions by ATF and the U.S. Attorney’s Office 

that set the strategy for the case, the issue of whether and when there was 

probable cause to seize firearms, and ATF’s use of cooperating FFLs to advance 

the investigation. We also assess the consequences of using court-ordered 

electronic surveillance and the time it took the government to obtain 

indictments of Operation Fast and Furious subjects. We address individual 

performance issues in Chapter Seven. 

We found that what began as an important and promising investigation 

of serious firearms trafficking along the Southwest Border that was developed 

through the efforts of a short-staffed ATF enforcement group quickly grew into 

an investigation that lacked realistic objectives, did not have appropriate 

supervision within ATF or the U.S. Attorney’s Office, and failed to adequately 

assess the public safety consequences of not stopping or controlling the 

alarming purchasing activity that persisted as the investigation progressed. 

Both ATF and the U.S. Attorney’s Office focused almost from the outset on a 

longer-term investigative approach that prioritized obtaining court-authorized 

electronic surveillance in order to gather evidence about the trafficking 

conspiracy and to identify the individuals who were financing the purchases 

and transporting the weapons to Mexico. We found that the wiretap was 

pursued to the exclusion of, instead of in combination with, additional tactics 

that could have deterred some of the purchasing activity and resulted in more 

firearms seizures and arrests. As a consequence, in the months prior to and 

after the wiretap was in place, the purchasing activity by Operation Fast and 

Furious subjects continued unabated, individuals who had engaged in serious 

and dangerous criminal conduct remained at large, and the public was put in 

harm’s way. 

We were not persuaded by ATF’s claim that the U.S. Attorney’s Office 

would not permit agents to seize firearms during most of the investigation 

because there was a lack of probable cause. We concluded that the prosecutor 

assigned to Operation Fast and Furious had an exceedingly conservative and 

questionable view of the evidence required to establish probable cause to seize 

and forfeit firearms, and that he, like the agents, did not propose arresting any 

of the straw purchasers for their trafficking activity during the investigation 

despite sufficient evidence to do so. However, the prosecutor acknowledged to 

us that there were instances both before (at least with respect to Patino) and 

after the wiretaps began in March 2010 where agents could have made a case 

for seizing firearms. We did not find persuasive evidence that agents sought to 

seize firearms or make arrests during the investigative stage of the case and 

were rebuffed by the prosecutor, or that absent one incident with a .50 caliber 

rifle purchased by an individual not connected to Operation Fast and Furious, 
210 

ATF agents or management complained during the investigation to anyone at 

the U.S. Attorney’s Office about unreasonable evidentiary requirements for 

making seizures or effecting arrests in the investigation. We found that the 

lack of seizures and arrests was primarily attributable to the pursuit of a 

strategic goal shared by both the ATF and the U.S. Attorney’s Office – to 

eliminate a trafficking organization – and the belief that confronting subjects 

and seizing firearms could compromise that goal. 

We also concluded that ATF’s use of cooperating FFLs in this 

investigation was problematic because, at a minimum, it created at least the 

appearance that the FFLs were continuing to sell firearms to Operation Fast 

and Furious subjects in order to further ATF’s investigation. We were not 

persuaded by the position of ATF and the U.S. Attorney’s Office that the FFLs 

viewed the sales as legitimate transactions, and that the government did not 

implicitly encourage the sales to continue. We believe that at a minimum the 

government’s requests for substantial assistance and its equivocal explanations 

about what it was doing with respect to the firearms being sold reasonably led 

the FFLs to believe that ATF and the U.S. Attorney’s Office were taking steps to 

prevent the weapons’ unlawful transfers and might have caused them to 

complete sales they otherwise would not have. 

In addition, we found that while there were plans to indict the Operation 

Fast and Furious subjects several times before the shooting death of Agent 

Terry, that tragedy created urgency in the U.S. Attorney’s Office that did not 

previously exist with respect to Operation Fast and Furious and likely hastened 

obtaining the indictment. 

In sum, while we found no evidence that the agents and prosecutors 

responsible for Operation Fast and Furious had improper motives or were 

trying to accomplish anything other than dismantling a dangerous firearms 

trafficking organization, we concluded that the conduct and supervision of the 

investigation had significant flaws. We were most troubled by the fact that an 

investigation of this scope and nature did not receive greater review or scrutiny 

in light of the substantial resources devoted to it, the extraordinary purchasing 

activity by a large number of subjects, and the conspicuous lack of ATFinitiated enforcement action. Indeed, no one responsible for the case at either 

ATF Phoenix Field Division or the U.S. Attorney’s Office in Arizona raised a 

serious question or concern about the government not taking earlier measures 

to disrupt a trafficking operation that continued to purchase firearms with 

impunity for many months. Similarly, we did not find persuasive evidence that 

any supervisor in Phoenix, at either the U.S. Attorney’s Office or ATF, raised 

serious questions or concerns about the risk to public safety posed by the 

continuing firearms purchases or by the delay in arresting individuals who 

were engaging in the trafficking. This failure reflected a significant lack of 

oversight and urgency by both ATF and the U.S. Attorney’s Office in Phoenix, 
211 

and a disregard by both for the safety of individuals in the United States and 

Mexico. 

A. Investigative Goal and Strategy 

We found that in the earliest weeks of the investigation that would 

become Operation Fast and Furious, ATF agents pursued a strategy that broke 

from the traditional approach of confronting suspected straw purchasers. As 

we discussed in Chapter Three, this was similar to what we found in Operation 

Wide Receiver, although in Operation Fast and Furious, unlike in Operation 

Wide Receiver, the U.S. Attorney’s Office was an equal partner in supporting 

this strategy. This alternative approach involved agents developing the 

investigation through surveillance and the collection and review of phone, 

financial, and other records in order to build a case against the subjects who 

were purchasing the firearms as well as the larger organization that was 

financing the activity and transporting the weapons to Mexico. According to 

case agent MacAllister, who also served as Acting Supervisor for Group VII 

until Voth arrived the first week of December 2009, this approach was 

informed by her experience that confronting a subject about suspicious 

firearms purchases was unlikely to elicit an admission or gain the subject’s 

cooperation, and would only serve to notify the subject and any co-conspirators 

that law enforcement was aware of their activities. In this regard, MacAllister 

had the full support of her management in Phoenix.162

The investigation began with promise. Based on information provided by 

FFL1 in late October 2009 about some suspicious firearms purchases, the 

three agents assigned to Group VII gathered evidence through documents and 

surveillance that showed what appeared to be a significant firearms trafficking 

group operating in the Phoenix area. In fact, within 30 days of receiving the 

Form 4473s from FFL1, ATF agents had identified approximately a dozen 

related subjects responsible for purchasing at least 341 firearms – nearly all 

AK-47 style rifles or FN Herstals – for approximately $190,000, paid in cash. 

The agents also identified a residence and business being used as drop 

locations for the firearms being purchased. In addition, agents learned early in 

the investigation that firearms purchased by this group were being recovered in 

Mexico and were advised with respect to one seizure that Mexican authorities 

believed the firearms were going to the Sinaloa cartel and that its leader was 

“arming for war.” 

 

162 After reviewing a draft of this report, MacAllister submitted comments that disputed 

some of the report’s characterizations and conclusions. With respect to the investigative 

approach taken in Operation Fast and Furious, MacAllister stated that it was part of the overall 

ATF Southwest Border strategy to deal with an international criminal enterprise engaged in 

firearms trafficking and that it was inaccurate and unfair to assign to her responsibility for 

designing the investigative approach.
212 

Despite this rapid accumulation of evidence, the December 1, 2009, 

briefing paper MacAllister drafted for ATF Phoenix management described an 

investigation that would proceed with more surveillance and more phone 

records and financial analysis. The plan stated explicitly that the investigation 

would not proceed to an “overt phase” until the structure of the organization 

and illegal activities were further established. 

This approach was evident in the response to a 42-gun seizure on 

November 20, 2009, in Naco, Sonora that included 19 guns that had been 

purchased by Operation Fast and Furious subjects less than 3 weeks earlier. 

Hurley stated in a November 25, 2009, e-mail to U.S. Attorney Burke that ATF 

needed to “fend off any premature interview attempts by other ICE agents” 

because “the greatest risk to the larger [Fast and Furious] investigation will be 

tipping our hand to the suspects too soon. . . . This case will take time to build 

into an indictable case." Similarly, MacAllister explained in a November 27, 

2009, e-mail to SAC Newell and ASAC Gillett that she chose not to interview 

any of the suspected straw purchasers tied to the seizure because “at this point 

in the investigation we are actively identifying much larger players in the 

organization and contacting any of the purchasers at this point in time will 

adversely affect the success of this investigation.” As we recounted earlier in 

this chapter, ASAC Gillett replied to MacAllister, “that is fine and totally your 

call.” 

MacAllister did not discuss the merits or risks of this approach with 

Phoenix management, though it was clear through the communications 

described in Section IV of this chapter that ASAC Gillett and SAC Newell were 

aware that this was how MacAllister intended to conduct the investigation and 

were supportive of the approach. For example, as described in Chapter 5, ATF 

Headquarters’ Office of Strategic Information and Intelligence (OSII) provided 

analytical assistance to the case. When an official at ATF Headquarters who 

attended a December 15, 2009, briefing that included Operation Fast and 

Furious mentioned the possibility of needing to shut the case down, Gillett 

contacted the official and told him – misleadingly, we believe – that “we will 

slow the purchasers down as much as possible.” Newell told us that he spoke 

with Deputy Assistant Director for Field Operations McMahon about the 

official’s concerns and explained to him that the case was just getting started 

and that they were trying to understand what they were dealing with. Newell 

also e-mailed OSII Deputy Assistant Director Martin and described the official 

who raised concerns as “one of the ‘hand wringers’ on this deal [who was] 

asking why we weren’t shutting this deal down now.” Newell informed Martin 

that he had his ASAC “counsel” the official as to why Phoenix was not going to 

close down the investigation and that the official should not worry about issues 

that he had no control over or “say in for that matter.” 

The strategy of deferring overt action against any individual subject until 

additional evidence was gathered against the larger organization was 
213 

highlighted in numerous records we reviewed. For example, following the 

January 5, 2010, meeting between ATF and the U.S. Attorney’s Office to 

discuss the case, Morrissey stated to Burke in an e-mail that ATF agreed with 

“our strategy” to not simply conduct a small straw purchaser investigation, but 

to instead “hold out for the bigger case, try to get a wire, and if it fails, we can 

always do the straw buyers.” Burke replied, “hold out for bigger.” Newell also 

e-mailed his management after this meeting and informed Deputy Assistant 

Director McMahon that the U.S. Attorney’s Office wanted to proceed with a 

wiretap before conducting any “overt investigative activity,” and that “they 

agree that right now we have very little to prosecute. . . .” Newell stated that 

Phoenix was “doing everything possible to slow these guys down[,]” the same 

misleading statement that Gillett made to ATF Headquarters approximately two 

weeks earlier and that Newell again made to McMahon approximately one week 

later.163

ATF’s January 8, 2010, Operation Fast and Furious briefing paper, in 

language that purposefully tracked ATF’s weapons transfer policy, stated that 

the strategy in the case was “to allow the transfer of firearms to take place, 

albeit it 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 firearms to Mexican DTO producing more armed 

violence along the Southwest Border.” According to the briefing paper, there 

had been successful efforts since early December to “slow down” the pace of 

purchases and that these would continue, “but not to the detriment of the 

larger goal of the investigation.” However, as described earlier in this chapter, 

we found no evidence that ATF Phoenix agents or supervisors were making 

efforts at this time to slow the subjects’ purchasing activity. 

In April 2010, Voth wrote an e-mail to Hurley and Gillett that Voth told 

us was intended to convey his frustration with the time it took to get the 

wiretaps approved. The e-mail stated: 

Our subjects purchased 359 firearms during the month of March 

alone, to include numerous Barrett .50 caliber rifles. I believe we 

are righteous in our plan to dismantle this entire organization and 

 

163 Newell reported to the Deputy Assistant Director on January 13, 2010, about a 42-

gun seizure by the El Paso Police Department. Newell stated in his e-mail, “we are working this 

‘fast and furious’, the good news being we got another 42 off the street and can keep our case 

going. Hopefully the big bosses realize we are doing everything possible to prevent guns going 

to Mexico while at the same time trying to put together a phenomenal case.” As we stated in 

Section IV, we found no basis for Newell’s statement to McMahon that “we got another 42 off 

the street,” given that Group VII played no role in the El Paso seizure. Additionally, we found 

no evidence that ATF Phoenix, or the U.S. Attorney’s Office, had taken any action by this date 

to “prevent guns going to Mexico,” as Newell told McMahon.
214 

to rush in to arrest any one person without taking into account the 

entire scope of the conspiracy would be ill advised to the overall 

good of the mission. . . . 

Just two weeks later, pursuant to Deputy Director Hoover’s request, Voth 

drafted an exit strategy document that stated the goal of the case was to 

intercept conversations of Celis-Acosta engaging in firearms trafficking with 

known and unknown subjects. Voth described Patino and the other subjects 

as the “lowest rung on the preverbal [sic] criminal firearms trafficking 

organizational ladder,” and stated that if Patino was arrested for the firearms 

he purchased to that point, “we will only minimally impact the organization 

before Patino is replaced by another member of the organization.” From 

November 1, 2009, to April 28, 2010 – the date the exit strategy was drafted – 

Patino had purchased 531 firearms for over $410,000. 

In sum, we believe it is clear that the investigative goal and strategy in 

Operation Fast and Furious, endorsed by ATF’s Phoenix Field Division and the 

U.S. Attorney’s Office in Arizona, was to defer action against individual straw 

purchasers and pursue a larger case that dismantled the local trafficking group 

and possibly identified how the firearms were being paid for and transported to 

Mexico. As we discuss below, we were not persuaded by claims that this 

approach was solely grounded in disputes about the sufficiency of evidence to 

take earlier action. 

1. Use of the Wiretap 

The wiretap became the centerpiece of the strategy described above 

because ATF Phoenix agents believed it was more likely to produce direct 

evidence of the trafficking conspiracy than the traditional approach of 

confronting subjects about their activities. The idea of using a wiretap in a 

Group VII case was suggested by Voth before he arrived in Phoenix on 

December 6, 2009, and was shortly thereafter viewed as the direction the case 

would take. According to Hurley, at his January 5, 2010, meeting with Gillett, 

Voth, and MacAllister to discuss the status of the investigation, the ATF 

presented a case for the need to use a wiretap in order to reach the individuals 

involved in the conspiracy above the straw purchaser level. Hurley agreed with 

ATF’s assessment. 

We found the decision to proceed with a wiretap notable. As described 

above, Group VII was staffed by only four agents – including one who had 

graduated from the ATF training academy in November 2009, another who had 

graduated in March 2008, and a third who had arrived in Phoenix just weeks 

earlier – and the timing and availability of additional resources was uncertain. 

The demands of keeping pace with the activity in Operation Fast and Furious 

were already taxing, and it was not the only investigation Group VII agents 

were responsible for. In addition, the agents had already found it very difficult 
215 

to conduct effective surveillance of Operation Fast and Furious subjects for a 

variety of reasons, including the difficulty of maintaining line of sight, the 

counter surveillance techniques used by subjects, and the inability to observe 

what happened to firearms once they entered garages or residences. 

We are aware these were among the reasons a wiretap was sought, but 

also believe these were considerations that should have been examined more 

critically and realistically. The primary objectives of the wiretap were to 

develop sufficient evidence for a prosecutable case against the entire CelisAcosta organization and to learn how the weapons were being paid for and 

transferred out of Phoenix. The most effective way to accomplish these 

objectives was to conduct physical surveillance in tandem with the wiretap 

interceptions. In light of the significant number of subjects identified by that 

time, the finite and already overextended agent resources, and the substantial 

surveillance challenges, harder questions should have been asked about 

whether and how ATF’s Phoenix office could incorporate the wiretap with other 

investigative techniques in order to minimize the risk to public safety posed by 

the volume of sales to the straw purchasers. 

In deciding to seek a wiretap, ATF agents and attorneys in the U.S. 

Attorney’s Office knew that the investigation would continue for at a minimum 

several weeks, and more likely, several months. By January 8, 2010, the 

Operation Fast and Furious subjects had purchased almost 500 firearms for 

approximately $270,000 since the case began on October 31, 2009 – and an 

additional 150 firearms for approximately $80,000 had been purchased during 

the month prior to opening of case – and there had been short time-to-crime 

recoveries of some of those firearms in the United States and Mexico. It was 

also known through the DEA information that Celis-Acosta in fact was 

trafficking firearms to Mexico – this was not a mere suspicion. 

In light of the decision by ATF and the U.S. Attorney’s Office to not seize 

firearms or make arrests during this stage of the investigation seeking a 

wiretap meant that straw purchasing activity would continue unabated for 

many more months. Under these circumstances, we believe there should have 

been careful consideration and discussion by senior management officials at 

ATF and the U.S. Attorney’s Office about whether and how to deter future 

purchasing activity given that arrests were not anticipated in the near future. 

We found that this did not occur. In fact, according to Gillett and English, and 

to a lesser extent MacAllister, the decision to seek a wiretap made it less likely 

that ATF agents, or police officers acting at ATF’s request, would initiate 

contact with Operation Fast and Furious subjects because doing so might have 

alerted the subjects that law enforcement was aware of their activities, thereby 

causing them to discontinue using phones ATF was interested in or ceasing 

activity that ATF sought to observe. 
216 

According to several ATF agents, one explanation for not discussing at 

the meeting on January 5, 2010, or at other times during the investigation, 

whether and how to deter future purchasing activity was tied to the issue of 

whether there was sufficient probable cause to seize firearms. As we discuss in 

the next section, we considered this explanation and ultimately found it 

unpersuasive. Rather, we believe the record in Operation Fast and Furious 

demonstrates that a wiretap was pursued for the reasons stated in Voth’s draft 

January 2010 briefing paper: “[o]ur goal is to secure a Federal T-III audio 

intercept to identify and prosecute all of the tentacles of this larger 

organization,” and that although the group of straw purchasers that had been 

identified was significant, it did not represent “the command and control 

elements of a Mexican DTO” and arresting these individuals “is not going to 

disrupt or dismantle the transportation and distribution cells of the 

organization, nor is it most likely going to lead to the prosecution of the leaders 

of the cartels or their principal facilitators.” 

The view that merely arresting straw purchasers at that stage in the 

investigation was insufficient to fully dismantle the Celis-Acosta trafficking 

organization, and that a wiretap was needed to accomplish more, was shared 

by Newell, Gillett, Voth, and MacAllister at the ATF, and Hurley, Morrissey, and 

Burke at the U.S. Attorney’s Office. We found that the strict adherence to this 

view, and the failure to reassess and possibly shut down the case as weeks and 

months passed and the evidence of firearms trafficking mounted, was a 

significant flaw in the Operation Fast and Furious investigation. 

2. Role of Probable Cause in Developing Case Strategy 

Newell and Voth insisted to us that the lack of seizures and arrests 

during the course of Operation Fast and Furious was attributable to Hurley’s 

refusal, based on a restrictive view of probable cause, to allow agents to seize 

firearms. While we found the statements from witnesses on the subject of 

probable cause at times difficult to untangle, we were not persuaded by 

Newell’s and Voth’s claim given the totality of the evidence and do not believe 

that ATF was drawn reluctantly into a longer-term investigation solely because 

of legal obstacles the U.S. Attorney’s Office erected in firearms trafficking cases. 

We found that Hurley’s questionable early legal guidance about probable cause 

dovetailed with ATF’s tactical approach in the case, namely to allow straw 

purchases to continue without disruption, and that both ATF and the U.S. 

Attorney’s Office failed to reassess the case as it became clear that Hurley’s 

early legal guidance no longer reflected the totality of the evidence being 

gathered by agents. 

Hurley told us that he recalled discussing with MacAllister early in the 

investigation that something more than the evidence known at the time was 

needed to make seizures because transfers of firearms by non-prohibited 

purchasers was not, without more, sufficient. He said that under those 
217 

circumstances, he believed an admission from the subject was needed. Hurley 

said that agents did not call him as the case progressed to ask whether there 

was sufficient evidence under particular circumstances to seize firearms, and 

he never gave the agents an edict that they could not take that action. Rather, 

he said the conversations he recalled concerned what the next steps in the case 

should be in light of what the agents were observing, not whether the agents 

were allowed to seize guns. However, we believe that in light of the substantial 

evidence that was being gathered and the increasing risk to public safety, it 

was as much Hurley’s responsibility to affirmatively raise questions about 

conducting seizures and making arrests, as it was the agent’s responsibility to 

make inquiries of him and raise any concerns to management. 

Hurley said the first time he recalled agents asking whether they could 

seize Operation Fast and Furious-related firearms was in connection with a 

June 30, 2010, seizure of 20 guns from an Operation Fast and Furious 

subject.164

MacAllister told us she believed, based on her previous experience 

working with Hurley and the guidance he provided in Operation Fast and 

Furious, that a non-prohibited party had to admit to involvement in straw 

purchasing before an agent could seize firearms in the party’s possession. 

MacAllister said she was aware that other indicia of straw purchasing were 

probative, but felt that that without an admission, a seizure could not be made. 

While it surely was reasonable for MacAllister to rely on Hurley’s views on 

probable cause, we found that MacAllister had made the tactical decision in 

Operation Fast and Furious not to confront subjects to solicit admissions in 

order to avoid tipping off subjects to the investigation so that a larger case 

could be built. 

 Hurley said the decisions ATF agents made with respect to 

approaching subjects during the investigation reflected tactical judgments 

about the most effective way to determine how firearms were crossing the 

border and who was placing the orders, and that he did not play a role in 

making those tactical calls. 

We also found that Hurley’s focus with respect to the sufficiency of 

evidence in firearms cases was on what he believed was needed to prevail in 

court, whether at a criminal trial or a forfeiture hearing, and that Hurley and 

the agents infrequently discussed the related but distinct question of what 

constitutes mere probable cause to seize or arrest in specific instances.165

 

164 Hurley told us that he advised the agents that it was permissible to seize these 

firearms. He said he could not recall the specific conversation, but believes the discussion 

would have been about the number and type of firearms purchased and whether there was 

pertinent information from the wiretap.

 

165 As noted in Section I of this chapter, ATF’s policy on “Weapons Transfers” in effect 

during Operation Fast and Furious described agents’ ability to seize firearms when they 

(Cont’d.)
218 

However, what we found in Operation Fast and Furious was that Hurley’s 

questionable early legal guidance that an admission was required to seize guns 

dovetailed with MacAllister’s judgment that approaching suspected straw 

purchasers was an ineffective tactic. As discussed later, we believe these 

problematic legal and tactical views should have been regularly reassessed and 

reconsidered by MacAllister, Hurley, and their respective supervisors as the 

evidence of firearms trafficking and the risk to public safety mounted. 

Both Newell and Voth told us that Hurley’s position on probable cause 

impeded ATF’s ability to seize guns for months, until he at last relented in June 

2010 and deemed that there was sufficient evidence for agents to seize firearms 

that fit a pattern of purchasing activity by a subject that had been previously 

observed or documented. We expected, based on these statements, to see 

substantial contemporaneous evidence of a dispute between ATF and the U.S. 

Attorney’s Office about the ability to seize firearms from Operation Fast and 

Furious subjects, and possibly even about making arrests. We did not find 

this. To the contrary, the message in internal briefing papers and 

communications to ATF Headquarters was that ATF Phoenix and the U.S. 

Attorney’s Office were in agreement about how to proceed. There was no 

mention of disagreement or tension between the offices related to seizing 

firearms or making arrests. In fact, Newell told us that he was never presented 

with a concern about the lack of seizures, and that he was comfortable during 

the investigation with its progress. Gillett similarly told us that no one ever 

said to him that the agents should be more aggressive and, with the exception 

of the time it took to obtain the wiretap, that he was not frustrated with 

Hurley.166

Further, we were not persuaded that ATF was prevented from taking 

enforcement action throughout most of the case by a single prosecutor’s legal 

guidance. Hurley told us that in his experience ATF agents were not hesitant 

to voice their displeasure or frustrations with the U.S. Attorney’s Office. 

 

observed transfers based on “probable cause” to believe a criminal violation had occurred, and 

not on whether there was a prosecutable case. With respect to initiating a prosecution, the 

United States Attorneys’ Manual – a reference guide for attorneys responsible for prosecuting 

violations of federal law – states that “as a matter of fundamental fairness and in the interest of 

the efficient administration of justice, no prosecution should be initiated against any person 

unless the government believes that the person probably will be found guilty by an unbiased 

trier of fact.” USAM, Section 9-27-220, Comment B.

166 After reviewing a draft of this report, Voth submitted comments in which he 

asserted that he in fact did challenge his management in Phoenix about the U.S. Attorney’s 

Office’s restrictive interpretation of the law, but was told it had been a frustration for ATF for 

years and that the office simply had to abide by it. Voth also stated that he pushed back 

against the U.S. Attorney’s Office’s restrictive views by, for example, pursuing the use of civil 

asset forfeiture in the Fall of 2010 to seize firearms.
219 

Indeed, Newell, Voth, and ASAC Needles (who began supervising Group VII in 

June 2010) did just that during the course of the investigation with respect to 

what they perceived as unreasonable delays in getting the wiretaps approved 

and in bringing the indictment against Operation Fast and Furious subjects. 

In addition, Newell personally and through his Division Counsel worked to 

resolve ATF’s disagreement with the U.S. Attorney’s Office’s application of the 

corpus delicti doctrine to firearms trafficking cases. The absence of a similar 

record with respect to Hurley’s alleged persistent denial of ATF’s requests to 

seize weapons in Operation Fast and Furious is compelling.167

We found that whatever concern Newell may have had about probable 

cause in Operation Fast and Furious, he did not raise it with Hurley or senior 

managers in the U.S. Attorney’s Office. Similarly, we did not find persuasive 

evidence that Voth raised such concerns with Hurley, with the exception of an 

incident unrelated to Operation Fast and Furious in which Hurley advised that 

agents could not seize a .50 caliber rifle. We believe the briefing papers, the 

exit strategy, and various e-mail communications strongly indicate that little 

consideration was given to confronting or arresting first-line straw purchasers 

or seizing firearms earlier and more frequently because ATF agents and the 

prosecutor in the U.S. Attorney’s Office believed that these actions would not 

advance the goal of dismantling a large trafficking organization.

3. Failure to Exploit Information 

We found that a consequence of the government’s strategy in Operation 

Fast and Furious to defer overt action and pursue a wiretap was that 

opportunities to advance the investigation were not fully exploited. We believe 

that one of the most significant examples of this occurred with respect to the 

information the DEA provided ATF in December 2009. 

Two weeks after completing the December 1 briefing paper, and also after 

agents had identified Celis-Acosta as the likely leader of the trafficking group, 

the DEA provided ATF information that seemed to be precisely what agents 

were seeking in order to build their investigation. As we described in Section 

IV of this chapter, in early December 2009 a connection was identified between 

ATF subject Jacob Chambers and a Phoenix-area drug courier named Manuel 

Marquez who was a subject in an ongoing DEA drug trafficking investigation. 

The DEA developed information about a possible firearms deal between these 

two individuals and contacted ATF. 

 

167 After reviewing a draft of this report, both MacAllister and Voth submitted 

comments that stated it was unfair to suggest that had agents continued to challenge the U.S. 

Attorney’s Office’s view of probable cause, this effort would have been successful and resulted 

in an altered case strategy.
220 

On December 15, 2009, Voth, MacAllister, and English met with agents 

from the DEA. The discussion at that meeting revealed that the DEA had 

information connecting Celis-Acosta to Marquez. The DEA provided ATF 

records it had about firearms trafficking and agreed to provide any future 

information it obtained from its case. The DEA also informed ATF that it 

expected to conclude its case in late January or early February 2010 and that 

it expected Marquez would be charged. 

In the days following this meeting, the DEA notified ATF about two 

possible firearms transfers. ATF agents participated with the DEA on the 

surveillance of the first incident but no transfer occurred. The second incident 

involved three individuals: Celis-Acosta, who was going to obtain some 

firearms and deliver them to El Paso; an individual identified as who 

was going to pay for the firearms and transport them from El Paso to Juarez, 

Mexico; and Marquez, who brokered the transaction. The DEA referred the 

information to ATF because Celis-Acosta was ATF’s main target. However, ATF 

did not conduct surveillance of this transaction because, according to 

MacAllister, the office was short staffed due to the holiday season and because 

she did not believe there was specific information about when or where in El 

Paso the delivery would occur. On approximately January 4 and 13, 2010, the 

DEA provided ATF with records that included the details of the December 2009 

planning and delivery of the firearms from Celis-Acosta to 

We found that the DEA information presented ATF with a very significant 

early opportunity to build its case to higher levels of the conspiracy that should 

have been pursued. Agents had already successfully identified numerous 

suspected straw purchasers working with Celis-Acosta, and had established 

that they were purchasing guns at a brisk pace. The information from the DEA 

identified as a possible source of Celis-Acosta’s funds and as an 

individual who transported firearms to Mexico, and Marquez as a broker for the 

Celis-Acosta/ relationship. In addition, the information established a 

direct connection between ATF’s firearms trafficking group and drug traffickers. 

Yet, ATF did not seek to take any action with respect to Marquez either before 

or after the DEA concluded its case, and rejected an opportunity to observe 

Celis-Acosta transfer firearms to a third party purchaser in El Paso who 

intended to transport the weapons to Mexico. 

MacAllister told us that because the DEA was taking its case down soon 

and anticipated charging Marquez, she did not feel ATF had the option to 

contact him. ASAC Gillett told us that the DEA ASAC requested that ATF not 

take any action based on the information the DEA was providing, and not use 

the information in any ATF affidavits. SAC Newell said that he understood the 

DEA requested that any ATF actions be coordinated with the DEA. We did not 

find these explanations persuasive. 
221 

First, although she told us she felt the option was not available, 

MacAllister also said she never actually asked the DEA whether it would object 

to ATF contacting Marquez. Moreover, even after MacAllister learned in early 

February 2010 that the DEA case had concluded she still did not consider 

contacting Marquez, who at that time might have been amenable to cooperating 

in light of the pending drug charges against him. Marquez’s defendant status 

could have provided ATF agents the sentencing leverage that some told us was 

often lacking in interviews of suspected straw purchasers. 

Second, the DEA ASAC denied that he requested through Gillett that ATF 

not use or take investigative action based upon the information the DEA had 

provided, and MacAllister used some of the information about Marquez, as well 

as other DEA targets, in the affidavit she drafted in support of the first 

Operation Fast and Furious wiretap application. In fact, the DEA provided 

MacAllister in late January the affidavits it submitted in support of the DEA’s 

wiretap applications to help MacAllister draft her affidavit. MacAllister also 

continued to use the DEA information in subsequent Operation Fast and 

Furious wiretap applications by, for example, adding as a potential 

interceptee and describing the details of the December 2009 firearms 

transaction between Celis-Acosta and 

Third, the DEA agents who attended the December 15, 2009, meeting 

told us that they did not ask ATF to delay or defer any actions in its 

investigation until the DEA case concluded and that they expected ATF would 

act on the information it was being provided. The DEA case agent told us that 

Marquez and Celis-Acosta were small pieces of the DEA’s case and that he was 

therefore not concerned how ATF’s actions might affect the DEA’s investigation. 

We believe that the DEA’s sharing of information, particularly the advance 

notice about the Marquez-brokered delivery of firearms from Celis-Acosta to 

, demonstrated that the DEA would not have objected to ATF taking 

some action with respect to Marquez. 

In sum, we believe that by failing to exploit the DEA information, ATF 

missed an early opportunity to develop its investigation up the organizational 

ladder of the group that agents had identified. After receiving the information 

from the DEA, ATF focused on getting OCDETF approval for its case and 

obtaining its own wiretaps. We found that after eight additional months of 

investigation and the use of substantial government resources, ATF was not 

substantially closer to identifying how the trafficking was being financed or 

how the firearms were being transported to Mexico than it had been after the 

DEA provided this information. 

As we noted in Section IV of this Chapter, the DEA provided ATF 

information in March 2010 that identified the full true name of and 

that indicated he and , whose full true name was also 

identified, had been the subjects of a joint DEA-FBI drug trafficking 
222 

investigation out of that was initiated on December 4, 2009. The 

DEA office that provided this information advised ATF that it believed these 

individuals had received firearms from Celis-Acosta. ATF did not appreciate 

the significance of this connection until March 2011 when it learned that 

 in fact was, together with the 

 Celis-Acosta firearms trafficking group. The failure to appreciate the 

significance of this connection earlier is troubling and raises questions about 

how information was shared among various offices of ATF, the DEA, and FBI, 

at this stage and at other points during the investigations. We continue to 

review materials relevant to these issues in order to assess whether further 

investigation is warranted. 

We saw some similar issues with coordination and information sharing 

between ATF and ICE, and noted instances in Section IV of this chapter where 

ATF appeared to resist ICE conducting any independent or coordinated 

investigations that were related to Operation Fast and Furious through 

recovered firearms. In light of ICE’s jurisdiction over export violations involving 

munitions and firearms, close coordination with ICE would seem essential in 

an investigation that purported to target a cartel in Mexico and had as a goal 

identifying the crossing mechanism the cartel was using to obtain firearms 

from the United States. We question whether adding a single ICE agent (who 

was a former ATF employee) to the Operation Fast and Furious investigation 

was sufficient to ensure or promote this coordination. The DHS OIG, the 

parent agency for ICE, is conducting a review of ICE’s involvement in and 

knowledge of Operation Fast and Furious. We look forward to working with 

that office to identify potential areas of improvement in the coordination and 

cooperation between ATF and ICE in law enforcement operations along the 

Southwest Border.

B. Sufficiency of Evidence to Seize Firearms 

We found that the evidence described and relied upon in the tracking 

device and wiretap applications submitted to the court during Operation Fast 

and Furious demonstrated that agents had probable cause to seize firearms 

considerably earlier than June 2010, the point at which Voth and MacAllister 

told us ATF began to seize firearms based upon the totality of the evidence. 

Each of the government’s January, February, and March 2010 applications for 

court approval stated that 

there was probable cause to believe at that time that particular Operation Fast 

and Furious subjects were committing criminal offenses involving false 

statements in the acquisition of firearms (18 U.S.C. §§ 922(a)(6), 924(a)(1)(A)), 

unlicensed dealing in firearms (18 U.S.C. § 922(a)(1)(A)), and the unlawful 

export of munitions (18 U.S.C. § 2778). The circumstantial evidence relied 

upon by the government included past firearms purchases, recoveries or 

seizures of some of these firearms, the purchasers’ reported income, and, in 
223 

some instances, descriptions of recorded telephone conversations with FFL1 

about making arrangements to purchase firearms. 

For example, the government’s January 2010 application stated that 

Steward had purchased 240 firearms since December 2009 for approximately 

$125,000, even though his reported income for the first quarter of 2009 was 

$4,497. The application also described several instances where firearms that 

Steward purchased were recovered within days of the purchase, including the 

seizure by officers in Douglas, Arizona, that we described in Section IV of this 

chapter. The application included similar information about Patino (159 

firearms since October 2009 for $104,000, despite a reported income of $6,257 

for the second quarter of 2009), Moore (116 firearms since October 2009 for 

nearly $65,000, despite a reported income of $3,638 for 2009), Chambers (68 

firearms since September 2009 for nearly $40,000, with no reported income), 

and Celis (40 firearms since October 2009 for over $35,000). This information 

was repeated in the government’s February and March 2010 applications. 

The government in its March 2010 wiretap application and in the eight 

that followed relied upon 

 

 

 

 The 

wiretap applications also included 

 

 

For example, according to the second wiretap affidavit (approved by court 

on 

 

 

 

 

 

 

 

 

 

Similarly, according to the fifth electronic surveillance affidavit (approved 

by court on 

 

 

 

 

 
224 

 

 

 

Similarly, according to this same affidavit, 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As we described in Section V of this chapter, we asked Hurley whether he 

believed agents could have relied upon the type of circumstantial evidence set 

forth in the applications to seize firearms. We found the essence of Hurley’s 

responses to be that agents could have seized firearms where the purchaser 

was one of the individuals described in those applications and the purchase at 

issue exhibited the same pattern as prior suspected unlawful purchases, that 

is, 

 

 . We reviewed several examples of 

surveilled purchases with Hurley, including Patino’s April 16 purchase of three 
225 

.50 caliber rifles, and he told us that he believed the argument could be made 

that there was probable cause to seize the firearms.168

We concluded that the tracker and wiretap applications demonstrated 

that there was probable cause considerably earlier than June 2010 to seize 

firearms, both for the very instances described in the applications as well as for 

others exhibiting comparable facts and circumstances. We did not, however, 

seek to establish the first or the total number of instances in Operation Fast 

and Furious where agents had probable cause and the opportunity to seize 

firearms. According to ATF records, ATF agents, often assisted by Phoenix 

Police Department Officers, conducted surveillance of approximately 47 

purchases involving 550 firearms. We concluded that there were seven 

instances where agents seized firearms during surveillance, and that a total of 

102 firearms were seized. This data is not dispositive on the question of how 

many times ATF agents did not seize firearms despite having the probable 

cause and opportunity to do so – and we described several examples in this 

chapter where we concluded this occurred – but we believe the data provides 

some perspective about the number of firearm that potentially fell into this 

category. 

In finding that there was sufficient evidence to seize firearms and make 

arrests in the case considerably earlier than June 2010, we rejected Hurley’s 

and MacAllister’s narrow view of probable cause and the quality and quantity 

of evidence that was necessary to take enforcement action against investigative 

subjects. We also did not find persuasive Newell’s and Voth’s contention that 

the lack of seizures prior to June 2010 was attributable to a stifling probable 

cause standard erected by the U.S. Attorney’s Office. For reasons discussed 

earlier, we believe ATF did not pursue seizures or arrests earlier in the case 

because of the concern that these actions might compromise the larger 

investigative goals. 

 

168 Hurley also said that while seizing firearms based on this kind of information might 

from an “academic” perspective be defensible, he did not believe that even as late as February 

2010 there was a prosecutable case against the purchasers. Hurley also said he thought that 

prevailing at a civil forfeiture hearing would have been difficult because of the need to prove the 

subject’s intent at the time of the purchase. When we recounted Patino’s purchasing activity 

during the investigation and the other indicia of straw purchasing associated with Patino (cash 

payments, lack of reportable income, weapons of choice, short time-to-crime recoveries), Hurley 

told us that agents probably could have made the case for arresting him prior to the first wire 

in March 2010, but he also said that the goal of the investigation was to arrest more than one 

straw purchaser and that arresting Patino was not going to result in dismantling the entire 

organization, which Hurley said is what ATF was attempting to do. He said his understanding 

was that arresting a subject like Patino would have been tantamount to bringing the 

investigation to a close. We concluded that this was the real reason that arrests and seizures 

did not occur.
226 

C. Failure to Supervise and Reassess the Investigation 

We believe that having embarked on a strategy that had as its 

centerpiece a wiretap for a case that by December 2, 2009, had identified the 

purchase of 341 firearms for approximately $190,000, by January 8, 2010, 

approximately 650 firearms for over $350,000, and by March 5, 2010, 1026 

firearms for over $600,000 – sales that bore all the indicia of straw purchases 

– it was imperative that ATF and the U.S. Attorney’s Office closely monitor, 

reassess, and if warranted, conclude the investigation. This should have 

included consideration of whether, in light of persistent high volume 

purchasing, additional recoveries of Operation Fast and Furious-related 

firearms in the United States and Mexico, and ineffective surveillance, overt 

steps such as interviews, seizures, search warrants, or arrests were warranted, 

both because the evidence supported it and the public safety demanded it. We 

found it extraordinary that this did not prompt more action than the handful of 

seizures that were conducted beginning in June 2010. 

The key aspects of the investigation that we believe should have 

prompted reexamination of the objectives and strategy were sufficiently well 

known by individuals responsible for the case at the ATF Phoenix office and the 

U.S. Attorney’s Office. In the ATF Phoenix office, the case agents and the group 

supervisor knew the facts of the investigation intimately, as is evident upon 

reading the documents they drafted and reviewed, including reports of 

investigation, case briefing papers, GPS tracker and wiretap applications, and 

regular e-mail communications. ASAC Gillett received the December 2009 and 

January 2010 briefing papers, attended the OCDETF presentation for the case 

in February 2010, told us he believed he reviewed the first wiretap application, 

and received regular updates from Voth about activities in the case relating to 

purchases, surveillances, and recoveries. SAC Newell also received the 

December and January 2010 briefing papers and received regular updates of 

case activity from Gillett as well as Voth. Through these records, many of 

which were described earlier in this chapter, those responsible for the 

investigation knew that trafficking involved several hundred firearms costing 

hundreds of thousands of dollars, that firearms were being recovered in the 

United States and Mexico, and that the activity was continuing unabated. 

In the U.S Attorney’s Office, Hurley received early investigative reports, 

reviewed affidavits, and prepared applications, all of which spelled out in detail 

the subjects’ ongoing purchasing activity, and had regular conversations with 

MacAllister about the case. Section Chief Morrissey, Hurley’s supervisor, 

received Hurley’s January 5 and March 12, 2010, memoranda about the case, 

both of which described the scope of the conspiracy. Morrissey also reviewed 

the first and possibly the second wiretap applications. Although neither 

Criminal Chief Cunningham nor U.S. Attorney Burke appeared to have 

reviewed the wiretap applications, they did receive Hurley’s January and March 

memoranda about the case. Burke also received periodic information about 
227 

the case from Newell, such as e-mails describing significant recoveries in 

Mexico and the United States. 

In short, we believe the knowledge at ATF Phoenix and the U.S. 

Attorney’s Office about the scope of the conspiracy being investigated and the 

threat it posed to public safety was sufficient to trigger regular and careful 

reexamination of the investigation. In this regard, we did not consider ATF’s 

April 2010 “exit strategy” an example of this. The document, completed just 

hours after a request from ATF Headquarters, was not drafted in consultation 

with the U.S. Attorney’s Office, included unrealistic objectives, and did not in 

any manner address what we believe any meaningful reassessment should 

have – how to respond to the unabated purchasing activity. In fact, the 

document asserted, “[i]f we arrest Uriel Patino for the firearms he has straw 

purchased thus far we will only minimally impact the organization before 

Patino is replaced by another member of the organization.” Thus, the exit 

strategy merely reaffirmed the continuation of an investigative strategy in place 

since December 2009. 

We acknowledge the assertion by some witnesses that the public safety 

was served by using the wiretaps to develop evidence to dismantle a dangerous 

firearms trafficking network. Under this view of the case, while low-level straw 

purchasers might traffic some firearms in the short term, eliminating the 

organization would prevent the future trafficking of many more firearms. 

However, we believe that whatever merit there may have been to deferring 

contact with straw purchasers during the course of the investigation, it should 

have yielded to the risk to public safety created by the conduct of Patino, 

Steward, and others. The individuals within the ATF and U.S. Attorney’s Office 

responsible for Operation Fast and Furious failed to make this necessary 

evaluation. 

D. Use of Cooperating FFLs 

We concluded that ATF used its long-standing relationship with and 

cooperation from FFL1 to advance the investigative interests of Operation Fast 

and Furious, and did so in a manner that risked compromising public safety 

and at a minimum created the perception that FFL1 was selling firearms with 

ATF’s approval. We reached a similar conclusion with respect to FFL2 and 

found that in at least one instance, ATF agents affirmatively requested that the 

store proceed with a sale. In making this finding, we were not persuaded by 

the contention of several individuals that the FFLs must have thought it was 

lawful to make sales to Patino, Steward, and other individuals who were clearly 

of interest to the ATF. We believe that the government’s requests for 

substantial assistance from the FFLs and statements to the FFLs that it was 

monitoring the purchasers could have led the FFLs to reasonably assume ATF 

was taking steps to prevent the weapons’ unlawful transfers and might have 

caused them to complete sales they otherwise would not have. In short, we do 
228 

not believe the arrangement between ATF and the FFLs in Operation Fast and 

Furious was appropriate or responsible.169

As we found in Chapter Three, there is a potential conflict between the 

ATF’s regulatory and criminal enforcement functions with respect to FFLs when 

the ATF seeks their assistance in an investigation. The conflict was manifested 

in Operation Wide Receiver where ATF paid an FFL to act as an informant by 

providing ATF with copies of pertinent Form 4473s, recording in-person and 

telephonic conversations with subjects, and continuing to make sales to 

subjects. SAC Newell told us that he disagreed with using an FFL as a 

confidential informant and would not have approved the arrangement in 

Operation Wide Receiver, which was in place before he became SAC. Yet 

Newell allowed a similar arrangement to persist in Operation Fast and Furious. 

Although FFL1 and FFL2 were not paid for their cooperation and did not 

officially act at ATF’s direction, they (particularly FFL1) provided assistance 

comparable to that provided in Operation Wide Receiver. This should have 

prompted management in ATF Phoenix to consider terminating the assistance 

or at least to exercise strong oversight. Newell and his subordinate supervisors 

did neither. 

We described in this chapter the cooperation FFL1 and FFL2 provided 

during the course of Operation Fast and Furious. Both provided ATF with 

Form 4473s of completed sales that ATF was interested in and gave agents 

advance notice of some purchases. In fact, the owner of FFL2 told us that 

agents’ requests were so frequent that it created a one-page “Project 

Gunrunner Compliance” form for its employees to complete and fax to ATF for 

certain individuals’ transactions. FFL2 also provided ATF copies of the store’s 

video recordings of some purchases, and FFL1 permitted ATF agents to place a 

video camera inside the store so agents could observe transactions in real time. 

In addition, both FFL1 and FFL2 agreed on several occasions to segregate the 

cash that subjects used for purchases to allow ATF agents to bring in a police 

dog trained to detect the odors of chemicals associated with certain narcotics. 

 

169 Our concerns with the conduct of the investigation in this case are not intended to 

suggest that we believe there are no circumstances under which the government could 

appropriately seek the cooperation of an FFL. Indeed, FFLs that voluntarily notify ATF agents 

about suspicious customers or sales provide critical intelligence about potential firearms 

trafficking. This is precisely the type of voluntary activity that is appropriate to encourage. 

However, significant concerns emerge when ATF obtains cooperation from an FFL that may 

result in the FFL making sales it believes are potentially illegal because the FFL is under the 

impression that ATF is approving or encouraging such sales, particularly in the absence of a 

written understanding or agreement. As we discuss in Chapter Seven, we believe that ATF 

must have formal guidance and policies in place for situations where cooperation beyond 

merely providing information is offered by or sought from an FFL.
229 

But ATF agents’ requests for assistance went still further. From January 

to August 2010, the owner of FFL1 used an ATF-provided recording system to 

record 32 telephone calls he had with Patino (23) and Steward (9) that 

generally concerned the type, cost, availability, or purchase of particular 

firearms. In addition, in connection with each of the three instances that ATF 

attached a tracking device to an AK-47 style rifle, agents provided the owner 

the altered firearm and asked that he include it with the sales to particular 

subjects. Two of these devices were inserted into AK-47 style rifles with 

synthetic stocks, and not the metal “under folders” the subjects typically were 

buying. Consequently, when the owner of FFL1 discussed possible sales with 

Steward and Patino in January 2010, he tried to pique their interest in the 

synthetic stock models by, for example, offering to sell them at a lower price. 

ATF agents also made additional requests of FFL2. On at least one 

occasion, MacAllister requested that FFL2 disable a .50 caliber rifle ordered by 

an Operation Fast and Furious subject by shaving the firing pin. In another 

instance, Voth requested that FFL2 proceed with a sale to Patino that required 

FFL2 to increase its inventory of a particular firearm. As we described in 

Section V, Voth said that he made this request because ATF intended to seize 

the firearms from Patino and also told us that the transaction never took place. 

In light of the extent and nature of ATF’s requests for cooperation, we did 

not find persuasive ATF’s and the U.S. Attorney’s Office’s position that because 

the FFLs continued to complete sales to subjects, they must have made an 

independent determination that the sales were lawful. As we described in 

Chapter Two, ATF has a national program to educate FFLs about the indicia of 

straw purchasing – which of course was precisely the activity FFL1 and FFL2 

were seeing and reporting to the ATF on a regular basis with respect to 

Operation Fast and Furious subjects. Further, we do not believe the requests 

ATF made to the FFLs with respect to particular individuals – such as to 

provide the records of all pertinent sales, record telephone calls, sell a 

particular style of AK-47, or segregate the cash – could reasonably be 

interpreted by the FFLs as anything other than indications that the sales to 

Operation Fast and Furious subjects were not legitimate. 

We also found that the extent and nature of the government’s requests 

for cooperation from FFL1 and FFL2 created at a minimum the appearance 

that sales to particular Operation Fast and Furious subjects were made with 

the government’s approval. As we described earlier in the chapter, 

recollections differed about what precisely was conveyed at the December 2009 

and May 2010 meetings with FFL1 and FFL2, respectively. We determined that 

it was unnecessary to resolve that conflict because we concluded that by 

emphasizing to the FFLs the value of their cooperation and by seeking 

additional cooperation that could only be satisfied by completing sales, the 

government at least inferentially suggested that it wanted the sales to 

Operation Fast and Furious subjects to continue. 
230 

In making this finding, we considered that ATF’s efforts to observe, 

surveil, and document purchases by Operation Fast and Furious subjects were 

central to the investigative goal of identifying additional members of the 

conspiracy and how the firearms were being paid for and transported to 

Mexico. In FFL1 and to a lesser extent FFL2, ATF had cooperative FFLs that 

facilitated ATF’s efforts. Indeed, the advantage of having cooperative FFLs 

assisting the investigation was highlighted in ATF’s January 8, 2010, briefing 

paper: “Our relationship is good with the FFLs involved thus far, [sic] if we cut 

off our group they may find other FFLs not as friendly and our intelligence will 

become exponentially more difficult to acquire.” In short, the success of ATF’s 

investigative strategy depended on continued sales made by cooperative FFLs 

like FFL1 and FFL2. 

We also found that given the facts known to ATF agents no later than 

mid-December 2009 about the volume and pace of sales, the recoveries of 

firearms in Mexico and the United States, and the DEA information 

establishing that Celis-Acosta in fact was trafficking firearms, ATF had an 

obligation as a law enforcement agency and to the public to manage its 

relationship with the cooperating FFLs responsibly. We do not believe it did. 

Both FFL1 and FFL2 personnel expressed concerns to ATF about their 

cooperation in the investigation. FFL2 raised particular concerns that it was 

“not viewed as selling to bad guys,” and that the firearms were “not getting 

south or in the wrong hands.” In one response to the owner and the manager 

of FFL2, Voth stated that he could not tell him how to run his business, but 

went on to assure him that “if it helps put you at ease we (ATF) are continually 

monitoring these suspects using a variety of investigative techniques which I 

cannot go into detail” and stated their “continued cooperation with our office 

has greatly aided the investigation.” The owner told us that Voth and Hurley 

provided similar assurances at the May 13, 2010, meeting the owner requested 

to discuss his concerns about FFL2’s assistance with the investigation. Both 

FFLs told us that their interactions with ATF left them with the impression that 

ATF was taking enforcement action against the guns being sold. Moreover, one 

of the FFLs told us that he continued to cooperate with ATF because the 

agency controlled his license and he feared potential retaliation. 

However, Voth, MacAllister, and Hurley knew that no enforcement 

actions were taking place and also knew that the sales being made to 

Operation Fast and Furious subjects were unlawful. We believe that some of 

the statements to the FFLs and the requests for assistance made it more likely 

that these FFLs would continue selling firearms to Operation Fast and Furious 

subjects. In doing so, the government appeared to encourage the FFLs to 

continue selling firearms to persons the ATF agents knew were involved in 
231 

trafficking firearms to Mexican cartels, without taking appropriate enforcement 

action to minimize the public safety risks of such sales.170

E. Delay in Indictment of Operation Fast and Furious Subjects 

When ATF and the U.S. Attorney’s Office decided by August 2010 that 

the investigation should be brought to a close, the potential public harm from 

the subjects did not end. They could still buy and traffic firearms or engage in 

other unlawful activities, such as the drug dealing ATF knew some subjects 

were involved in. Thus, it was incumbent on ATF and the U.S. Attorney’s Office 

to make arrests or to bring the indictment as quickly as possible. We found no 

such urgency. 

Instead, we found that the U.S. Attorney’s Office had no plans to arrest 

any of the subjects prior to the date when the larger case was ready to be 

presented for indictment, even though the Office was aware that it would likely 

take considerable time to prepare that larger case for indictment. The initial 

tentative plans were to indict Operation Fast and Furious subjects in 

September or October, which was then pushed back to early December 2010, 

but the U.S. Attorney’s Office did not meet any of these targets for several 

reasons. These reasons included the decision to include in the indictment 

money laundering charges that required additional financial investigation and 

analysis, the time it took to obtain a complete set of investigative reports, 

Hurley’s work on other matters, and the failure to assign additional 

prosecutors to the case. We found that the murder of Agent Terry on 

December 14, 2010, finally produced the sense of urgency to indict the case 

that did not previously exist. 

As we described in Section VI of this chapter, the U.S. Attorney’s Office 

and ATF each arrived at the judgment near the end of the summer 2010 that 

the wiretaps were not producing evidence about how the firearms were being 

paid for and transported to Mexico and that it was therefore time to bring 

Operation Fast and Furious to a close and move toward indictment. In 

addition, ATF Phoenix was receiving pressure from ATF Headquarters to indict 

the case. 

Beginning in approximately July, Hurley said he began talking with 

agents about what subjects should be included in the indictment. He said that 

his office felt a manageable number was 10 defendants, but that ATF wanted 

 

170 After reviewing a draft of this report, Voth and Hurley each submitted comments 

that disputed our analysis of the government’s communications with the FFLs. Voth’s 

comments observed that FFL1 issued a press release on February 1, 2011, stating that in its 

experience, ATF conducts itself “in a very professional and proper manner.” The press release 

also stated that FFL1 was not aware of any impropriety by ATF.
232 

additional subjects included and the number eventually reached 20. Hurley 

also said once it was clear who the top players in the indictment would be, he 

filed an ex parte order with the court for financial information. This was done 

in August. Hurley felt the inclusion of money laundering charges, as well as 

drug charges, would help with forfeiting assets and obtaining stiffer sentences. 

Although there were some communications suggesting a late September 

or October indictment, these targets did not seem to reflect the reality of the 

work being done to get to indictment. There were limited communications 

between the agents and Hurley about the status of the case. In fact, 

MacAllister said she could not recall any meetings with Hurley during this time 

to work on the indictment, and English told us that it took agents two months 

to gather all of the reports and other records for Hurley. In addition, agents 

were still completing investigative reports and MacAllister was involved in the 

trial of another weapons trafficking case. Hurley, too, was busy through at 

least through October with other matters. 

Hurley also said that he did not receive a complete set of reports of 

investigation and other materials he needed to complete the indictment, 

including the translations of intercepted telephone calls, until the first week of 

October 2010. He said this batch of material totaled over 3,000 pages. Hurley 

told us he did not recall receiving a first installment of reports of investigation 

that MacAllister believes she provided to him in June. MacAllister provided 

Department Trial Attorney Laura Gwinn two discs in July and August 2010 

that contained the first 300 and 350 reports, respectively, and we believe it is 

possible that MacAllister considered this production as being to Hurley as well 

as to Gwinn. 

But we found little basis to believe that had Hurley in fact taken 

possession of the two discs provided to Gwinn, he would have prepared the 

indictment earlier. As noted, Hurley’s time was occupied by other matters and 

he was waiting on the financial analysis. However, we found the production of 

the reports highly significant to the question of why additional prosecution 

resources were not added to the case when it entered the indictment phase. 

The case spanned 8 months and 9 wiretaps, involved dozens of potential 

defendants and approximately 2,000 firearms, and required the review of 

thousands of pages of investigative reports. We found it incredible that Hurley 

did not seek additional assistance, and that his management did not realize 

this was needed. Even more troubling was that this occurred when a capable 

and motivated Department prosecutor – Laura Gwinn – repeatedly indicated 

her availability to assist the case. Hurley said that one of his other cases was 

transferred to Gwinn, but that he did not recall any of her offers to help on 

Operation Fast and Furious or her requests for the reports of investigation. We 

believe the failure to utilize Gwinn or another prosecutor to move the case more 

expeditiously toward indictment reflected a lack of urgency to bring the 

Operation Fast and Furious defendants to trial. 
233 

As we described in Section VI of this chapter, December 7, 2010, was the 

first specific target date we identified for indictment. However, that goal was 

not met because, at least in part, the analysis of the financial data to support 

the money launderings charges and some additional search warrants and 

seizures were not yet completed. The new goal for the indictment and press 

conference was the first week of January 2011, a target Cunningham related to 

Burke in an e-mail in the early afternoon of December 14, 2010. Hurley at that 

time did not have the Operation Fast and Furious indictment in draft form and 

told us he had only a list of defendants and compilation of possible charges. 

Late in the evening on that same day, Agent Terry was murdered and 

firearms found at the scene were linked to straw purchaser Jaime Avila. ATF 

agents arrested Avila on firearms charges on December 15 and Hurley filed a 

criminal complaint the next day. Cunningham also e-mailed Burke on 

December 15 with a plan to indict the Operation Fast and Furious case on 

January 19, followed by the execution of arrest and search warrants, and some 

civil seizure warrants. In the month that followed, the work on the Operation 

Fast and Furious indictment was intense. Hurley told us he had agents in his 

office all the time and co-case agent English, 

j , described spending a week straight in Hurley’s office to prepare the 

indictment. The grand jury returned the indictment on January 19, 2011. 

Managers at the U.S. Attorney’s Office told us that Agent Terry’s murder 

had no effect on the timing of the Operation Fast and Furious indictment, and 

Hurley told us that he was not pressured to complete the indictment sooner 

than he would have in the absence of the tragedy. While some evidence 

supports these assertions, including contemporaneous records that reflect an 

expectation before Agent Terry’s murder that the indictment might come in 

early January, we found that as of December 14, Hurley and the U.S. 

Attorney’s Office were far from being ready to indict a case of this magnitude by 

early January. Moreover, the lack of urgency in the preparations up to 

December 14 led us to conclude that it was unlikely that an indictment would 

have been ready that soon absent Agent Terry’s tragic death. We found that 

the tragedy led to the intense pace of activity that ensured that the indictment 

was brought on January 19. We believe that given the danger to the 

community posed by these subjects and the crimes they were alleged to have 

committed, the U.S. Attorney’s Office should have demonstrated urgency for 

bringing charges in this case sooner.
234 

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Oct 20, 2009 Nov 20, 2009 Dec 1, 2009 Dec 10, 2009 Jan 1, 2010 Feb 1, 2010 Feb 20, 2010 Mar 1, 2010 Mar 10, 2010 Mar 20, 2010 Apr 20, 2010 May 1, 2010 May 20, 2010 Jun 20, 2010 Oct 10, 2010 Dec 10, 2010 Dec 20, 2010 Jan 1, 2011 Jan 20, 2011

CHAPTER 5 - THE ROLE OF ATF AND DOJ HEADQUARTERS IN OPERATION FAST AND FURIOUS 

Oct 31, 2009

ATF Group VII opens Fast 

& Furious investigation 

Nov 25, 2009

OSII learns of Chambers 

case (approximate date)

Dec 2, 2009

Newell sends McMahon first 

Fast & Furious briefing paper

Dec 3, 2009

Melson e-mails request to Breuer 

for Criminal Division assistance

Dec 9, 2009

First briefing for Melson including 

information on Fast & Furious

Dec 8, 2009

Douglas recovery

Dec 17, 2009

Briefing for Criminal Division 

Gang Unit attorneys on 

Southwest Border firearms 

trafficking investigation 

Jan 5, 2010

OSII briefing showing 

685 firearms trafficked 

in Fast & Furious 

Jan 8, 2010

Newell sends McMahon Fast 

& Furious briefing paper that 

describes case strategy

Jan 12, 2010

Melson and Hoover attend OSII 

briefing showing 729 firearms 

trafficked in Fast & Furious

Feb 5, 2010

Fast & Furious receives 

OCDETF designation

Feb 5, 2010

Phoenix ATF request to McMahon 

for permission to seek wiretap

Feb 20, 2010

Tohono O’odham seizure

Mar 1, 2010

ATF HQ staff brief Gang 

Unit Attorney Cooley

Mar 5, 2010

Voth and OSII brief ATF Headquarters and 

Gang Unit Attorney Cooley on Fast & Furious

Mar 10, 2010

Department approves 

first wiretap application

Mar 11, 2010

OFO and OSII 

brief Melson on 

Fast & Furious

Mar 22, 2010

 Hoover requests 

“Exit Strategy” 

(approximate date)

Mar 12, 2010

Melson and Hoover 

brief Grindler on 

Fast & Furious

Apr 27, 2010

McMahon e-mails Newell requesting “Exit Strategy”

Apr 27, 2010

Newell sends McMahon “Exit Strategy”

Apr 28, 2010

McMahon refers to Fast & Furious 

during meeting with Weinstein, Trusty 

and DOJ Office of Public Affairs staff

Jun 28, 2010

First NDIC Weekly that describes Fast 

& Furious and the trafficking of 1,500 

firearms sent to Offices of Attorney 

General and Deputy Attorney General

Jul 2010

Gang Unit Attorney 

Gwinn reviews wiretap 

affidavits

Dec 14, 2010

Agent Terry shot and killed

Dec 15, 2010

DOJ leadership learns 

of Agent Terry’s death

Dec 15, 2010

Burke notifies Wilkinson 

of link between guns at 

Terry murder scene and 

ATF investigation

Dec 17, 2010

Grindler informed of 

link between guns at 

Terry murder scene 

and ATF investigation

 

Event

 

Person 

 

Briefing

May 21, 2010

Weinstein approves wiretap 

renewal application 

Jan 25, 2011

Melson and Burke attend 

press conference announcing 

Mar 5, 2010 Avila indictment 

Arizona USAO rejects Gang Unit 

Attorney Cooley's assistance

May 4, 2010

Weinstein e-mails McMahon 

about obtaining roving 

wiretap in Fast & Furious

Dec 8, 2009

First OSII briefing 

concerning Fast & Furious

May 7, 2010

Weinstein describes Fast & Furious to 

head of OEO as "the most significant 

Mexico-related firearms tracking 

investigation ATF has going"

Oct 17, 2010

Weinstein e-mails Trusty asking whether Breuer should 

participate in Wide Receiver and Fast & Furious press and 

states "it's a tricky case, given the number of guns that 

have walked, but it is a significant set of prosecutions ..."

Jan 5, 2011

Melson refers blog postings 

about "gun walking" and the 

Terry murder to ATF Internal 

Affairs

Jan 24, 2011

Weinstein e-mails Gang Unit staff to 

inquire whether Criminal Division 

personnel will attend the press 

conference announcing Fast & Furious 

 

Late April / Early May 

McMahon describes Fast 

& Furious to Weinstein 

Dec 9, 2009

Mexicali recovery
235 

CHAPTER FIVE

THE ROLE OF ATF AND DOJ HEADQUARTERS IN

OPERATION FAST AND FURIOUS

In this chapter, we describe the information that ATF Headquarters’ 

personnel and Department leadership learned about Operation Fast and 

Furious from the investigation’s inception in late October 2009 to January 25, 

2011, the date of the press conference announcing the investigation. We also 

describe the action, and lack of action, by leadership officials in response to the 

information. 

I. Background 

The leadership of ATF includes a Director, Deputy Director, Assistant 

Directors of eight offices, a Chief of Staff, and a Chief Counsel. An organization 

chart of ATF that was applicable during the pendency of Operation Fast and 

Furious appears on the next page. 

The Office of Field Operations is the largest office and has primary 

responsibility for administering ATF’s 25 field divisions and Office of 

International Affairs. The Office of Strategic Intelligence and Information 

collects and analyzes information and produces intelligence products. 
236 

Diagram 5.1 
237 

II. Early Developments in Operation Fast and Furious 

A. November to December 2009: ATF Headquarters Personnel 

Receive Information about Firearms Seizures Connected to 

Operation Fast and Furious 

As noted in Chapter Four, the Operation Fast and Furious investigation 

was opened by ATF Group VII in late October 2009.171

On November 20, 2009, a member of ATF’s Southwest Border Field 

Intelligence Team in the Office of Strategic Intelligence and Information (OSII) 

received information about the seizure that day of 42 firearms in Naco, Sonora, 

Mexico. Thirty-seven of the seized firearms were traced by Immigrations and 

Custom Enforcement (ICE) agents back to purchases in Phoenix, Arizona. 

When OSII staff conferred with Special Agent Hope MacAllister in ATF’s 

Phoenix Field Division on November 25 to discuss the Naco seizure, they 

learned about MacAllister’s newly opened investigation. 

 Our investigation 

indicated that ATF Headquarters personnel first learned of the investigation in 

late November 2009. 

Office of Field Operations Assistant Director (AD) Mark Chait and Deputy 

Assistant Director (DAD) William McMahon also began receiving information 

about the case during this time period. ATF e-mails reflect that on November 

24 and 25, 2009, Phoenix Field Division Special Agent in Charge (SAC) William 

Newell informed Chait and McMahon about the Naco seizure. In an e-mail to 

McMahon on November 25, Newell stated, “Just found out Friday’s 42 gun 

seizure in Naco directly links to an ongoing ATF Phoenix case by SA Hope 

MacAllister, Organized Crime and Drug Enforcement Task Force (OCDETF) 

Strike Force. We are advising ICE to stand down on their current proactive 

activity in Arizona in order not to compromise our case.” In an e-mail to Newell 

the same day, Chait stated that he “wanted to make sure we put all resources 

on this.” Newell responded: “On it, it’s part of an active Phoenix case 

belonging to SA Hope MacAllister.” 

On December 2, Newell provided McMahon with additional details about 

the investigation in an e-mail accompanying a 5-page memorandum about the 

case. Newell’s e-mail stated that the investigation was evolving daily but that 

“we’ve got it handled.” The attached memorandum included an organization 

chart identifying 21 subjects, many with multiple firearms purchases, 

including 73 by Uriel Patino, 58 by Jacob Chambers, 46 by Joshua Moore, and 

 

171 As discussed in Chapter Four, within ATF, the investigation was initially referred to 

as the “Chambers, Jacob, et al.” case.
238 

5 by Jaime Avila.172

The memorandum did not identify any ATF efforts to seize firearms or 

indicate an intention to do so in the foreseeable future. Newell concluded the 

memorandum by stating: 

 The memorandum stated that several of the 42 firearms 

recovered at Naco were purchased by suspected straw purchasers in the 

investigation, and that agents had identified a total of 341 firearms with a cash 

value of approximately $190,000 that subjects of the investigation had 

purchased. It also identified surveillances that agents had conducted of some 

of these purchases and stated that ATF had established working relationships 

with several Federal Firearms Licensees (FFL) who were notifying ATF of 

suspect orders for firearms. 

[W]e need to further establish the structure of the organization and 

establish illegal acts before proceeding to an overt phase. A strictly 

straw purchasing case in this Federal Judicial District is very hard 

to pursue but we are keeping the USAO fully informed of this case 

on a regular basis. 

McMahon told us that he recalled receiving this memorandum, but that he did 

not think he would have forwarded it to anyone because it “was just an initial 

update on a brand new case.” 

ATF executives in the Office of Field Operations also received information 

about firearms recoveries connected to the investigation in regular weekly 

briefings conducted by OSII. These briefings, which OSII developed to assist 

intelligence sharing with the Office of Field Operations, were typically attended 

by the leadership of the Office of Field Operations (DAD McMahon and AD 

Chait), and occasionally by Acting Director Kenneth Melson and Deputy 

Director William Hoover.173

The weekly briefings included intelligence information derived from 

firearms trace reports and sales records analyses. Although the meetings 

covered other topics, they sometimes included information specific to Operation 

Fast and Furious. For example, during a weekly briefing conducted on 

December 8, 2009, OSII presented details about the November 20 Naco seizure 

described above. The briefing slides regarding this seizure showed that 11 of 

the firearms recovered were purchased by Patino. The briefing also included a 

list of eight multiple-sales reports for Patino between November 2, 2009, and 

 

172 As we discuss later in this Chapter, in January 2010 Avila purchased two of the 

firearms that were found in December 2010 at Agent Terry’s murder scene.

173 ATF provided us with sign-in sheets for briefings that occurred in the OSII Sensitive 

Compartmented Information Facility (SCIF). We note in the descriptions of these meetings 

when documents reflect the attendance of ATF senior leadership officials.
239 

November 21, 2009, and presented information regarding a seizure in Agua 

Prieta, Sonora, Mexico on November 25, 2009, that included the recovery of 26 

firearms at a large drug lab, 1 of which traced back to a purchase by Patino.174

Similarly, during a regular weekly briefing on December 15, 2009, OSII 

presented the Office of Field Operations with information regarding the 

December 8, 2009, seizure of nine firearms in Douglas, Arizona, that had been 

purchased the same day by Sean Steward.

 

According to sign-in sheets, McMahon attended the briefing. 

175 The slide regarding this seizure 

showed that Steward had purchased 40 AK-47 style rifles from FFL1 on 

December 8, 2009, and that 8 of these firearms were recovered by Customs 

and Border Protection (CBP) at the Douglas Port of Entry.176

The mounting number of firearms traced back to Operation Fast and 

Furious caught the attention of ATF’s Southwest Border Interdiction 

Coordinator, Ray Rowley. Rowley told us that he expressed concern within ATF 

Headquarters that too many firearms were being trafficked in Operation Fast 

and Furious and that the case should be concluded. Although Rowley could 

not recall exactly when he began expressing his concerns, e-mail records show 

that his concerns had reached ATF’s Phoenix Field Division by early afternoon 

on December 17, 2009. 

 The December 15 

briefing also included information about a large firearms recovery in Mexicali, 

Mexico, on December 9, 2009. The slides from this presentation showed that 

48 firearms, $2 million, 500 kilos of cocaine, and 85 pounds of 

methamphetamine had been recovered by the Mexican Army in Mexicali and 

that 8 of the 12 suspects detained during this seizure were associated with the 

Sinoloa Cartel. The presentation also showed that 17 of these 48 firearms were 

purchased by Operation Fast and Furious subjects. The sign-in sheet reflects 

that McMahon attended this briefing as well. 

On that day Phoenix Assistant Special Agent in Charge (ASAC) Gillett 

reported in an e-mail to SAC Newell that OSII staff had told Voth that Rowley 

had “received a briefing on the investigation this week and mentioned the 

possibility of needing to shut the investigation down due to the large number of 

guns that have already been trafficked.” Gillett also informed Newell that he 

had contacted Rowley and assured him that “we will slow the purchasers down 

as much as possible.” As we described in Chapter Four, we found that this 

 

174 The location of this seizure was mistakenly referred to in the briefing as Nogales.

175 This event is described in greater detail in Chapter Four. It is also described later in 

this chapter as it relates to the wiretap applications.

176 The ninth firearm was later traced back to Steward as well. The slide incorrectly 

identified the date of the seizure as December 9.
240 

assurance was misleading because ATF agents took no steps to slow the 

purchasing activity of the straw purchasers. 

Gillett told us that he spoke to Rowley for approximately 10 minutes and 

that this was the only telephone call the two had about the investigation. 

Rowley said that Gillett informed him that he would pass his concerns on to 

Newell and others on the investigation, but that he did not recall hearing 

anything further. 

Newell responded in an e-mail to Gillett and wrote, “Well done, thank 

you. I will address Ray's concerns with McMahon.” Newell told us that he did 

speak with McMahon and explained to him that the case was just getting 

started and that they were trying to understand what they were dealing with. 

Newell also e-mailed OSII DAD Steven Martin the next day and described 

Rowley as “one of the ‘hand wringers’ on this deal [who was] asking why we 

weren’t shutting this deal down now.” Newell informed Martin that he had 

Gillett “counsel” Rowley as to why the Phoenix Field Division was not going to 

close down the investigation and that Rowley should not worry about issues 

that he had no control over or “say in for that matter.” 

B. Request for Assistance from the Criminal Division 

Also in December 2009, ATF initiated discussions with the Department’s 

Criminal Division about Southwest Border gun trafficking investigations and 

prosecutions generally. These discussions resulted in two Criminal Division 

attorneys receiving information about Operation Fast and Furious that month. 

Melson told the OIG that in early December he asked Assistant Attorney 

General (AAG) Lanny Breuer to assign a Department prosecutor to assist ATF 

in developing intelligence-led, multi-district gun trafficking cases along the 

Southwest Border. Melson told us that his proposal was not connected to the 

seizures in Operation Fast and Furious, but was motivated by his awareness of 

the large volume of firearms seizures along the Southwest Border. Melson emailed Breuer on December 3 with his request and Breuer responded the next 

day that he believed the proposal was a “terrific idea” and that the Organized 

Crime and Gang Section (Gang Unit) would assign an attorney to help 

coordinate the effort. 

A few days later, on December 9, 2009, Melson received a briefing from 

OSII. Our investigation indicated that this was the first briefing he received 

related to Operation Fast and Furious. Melson told us that the briefing 

included information about a seizure that had some connection to the 

investigation that later became known as Operation Fast and Furious. 

According to Martin, the briefing was about the first large seizure related to the 

investigation, which, as discussed above, was the Naco seizure. Martin said 

the briefing was followed the next day by discussions among OSII and Office of 
241 

Field Operations personnel to develop a plan for briefing the Criminal Division 

attorneys. 

As a result of Melson’s request to Breuer for assistance, Gang Unit Chief 

Kevin Carwile was assigned to follow up with ATF. Carwile said that in midDecember 2009 he met with Melson and several aides from his office at ATF 

Headquarters. According to Carwile, at the meeting Melson sought assistance 

from the Division in developing a criminal enterprise approach to firearms 

trafficking cases. Carwile said that he understood that Melson also had some 

specific cases in mind for prosecutorial assistance but that Melson was not 

familiar with the details of those cases. Similarly, Melson told us he believed 

he also asked for a prosecutor to assist with straw purchasing cases because 

those cases were not a high priority for some U.S. Attorney’s Offices. Daniel 

Kumor, Chief of ATF’s International Affairs Office, also told us that at the 

meeting ATF sought to enlist the support of the Criminal Division in order to 

put pressure on some of the U.S. Attorney’s Offices on the Southwest Border to 

prosecute firearms trafficking cases.177

Carwile said he told Melson at the meeting that the Gang Unit could 

provide support. After the meeting, Carwile assigned Gang Unit Trial Attorney 

Joe Cooley to provide assistance to ATF. Cooley told the OIG that he 

understood from Carwile that ATF was not satisfied with the way that U.S. 

Attorney’s Offices on the border were handling firearms cases. AAG Breuer told 

us that he did not recall if he knew at the time that a Gang Unit lawyer was 

assigned to the matter. He said that he now understands that Cooley was 

assigned to assist the ATF in developing the “more comprehensive effort” 

regarding firearms trafficking cases, but that the effort did not “come to 

fruition.” He also said he now understood that Cooley also may have received a 

general briefing on Operation Fast and Furious, but ultimately the U.S. 

Attorney’s Office wanted to handle the case. 

On December 17, 2009, Carwile and Cooley attended a briefing by OSII 

at ATF Headquarters. According to ATF documents, ATF representatives at the 

 

177 Weinstein told the OIG that during the period December 2009 and January 2010, 

Melson made two requests of Breuer: for assistance in developing multi-district gun trafficking 

investigations and for an attorney to work on two or three high-priority firearms trafficking 

cases on the Southwest Border that were not being worked on or led by U.S. Attorney’s Offices. 

According to the Criminal Division’s weekly report to the Attorney General and Deputy Attorney 

General for the week of January 4, 2010, Breuer met with Melson on January 5 to initiate a 

new “CRM/ATF Firearms Trafficking Project” targeting firearms linked to Mexican Drug 

Trafficking Organizations. After reviewing a draft of this report, Melson told the OIG that he 

did not attend the briefing and cited the Outlook invitation for the briefing that did not include 

him. According to Melson, Hoover and Chait represented ATF at the meeting.
242 

meeting included Melson, Hoover, Chait, McMahon, Martin, Rowley, and 

Kumor. Carwile and Cooley told the OIG that although they did not have a 

recollection of attending a briefing on this particular date, they both 

remembered attending meetings at ATF Headquarters in December 2009 that 

addressed firearms trafficking on the Southwest Border. 

At the briefing, OSII staff used seizure and recovery information to 

exemplify how firearms traffickers were supplying drug cartels in Mexico and, 

in the case of Operation Fast and Furious, to support the Sinaloa Cartel. The 

briefing included information about a large seizure in Reynosa, Mexico, of 

approximately 400 firearms, which was not related to Operation Fast and 

Furious, as well as information about firearms linked to Operation Fast and 

Furious subjects. The OSII analyst who made the presentation told us that the 

briefing was not about Operation Fast and Furious but that it was mentioned 

as an “up and coming” case where a lot of firearms were being acquired. 

Two link analysis charts were presented at the briefing. One identified 

27 Operation Fast and Furious straw purchasers and suspected straw 

purchasers associated with firearms recoveries in Naco and Mexicali in Mexico, 

and in Douglas, Nogales, and Phoenix, Arizona.178

According to Melson, McMahon, and Martin, the meeting’s purpose was 

to “get DOJ attorneys involved” in a discussion of taking a national focus on 

leads developed from large Mexican seizures. Similarly, Chait said he recalled 

attending a meeting with Carwile and Cooley where they discussed using a 

Department attorney to take a “holistic” approach to prosecutions that may 

have crossed judicial lines; and Hoover said he remembered being involved in 

discussions with Melson in December about a significant seizure in Reynosa, 

Mexico, of firearms linked to purchases made in multiple ATF field divisions, 

which prompted Melson’s interest in obtaining Criminal Division assistance in 

looking at gun trafficking on a national level. Melson, Martin, and McMahon 

also stated that the briefing’s scope included the Reynosa seizure and the 

ongoing Operation Fast and Furious case. 

 The slide did not indicate 

the total number of firearms purchased or recovered in Operation Fast and 

Furious, nor did it include any information regarding the direction, strategy, or 

tactics in the case. The second link analysis showed the two largest Gulf 

Cartel seizures in 2008, the Reynosa seizure and another seizure in Miguel 

Aleman, Mexico. 

 

178 We refer to “straw purchasers” because we believe the evidence by this date 

established probable cause to believe that the leading suspects identified by ATF, such as 

Patino and Steward, were committing crimes.
243 

Cooley told us that he understood from his meeting with ATF in 

December that there had been two major gun seizures that occurred in Mexico, 

one involving 400 guns, and that the vast majority of the weapons had been 

traced to guns purchased in the United States. He said that the issue 

presented to him was how to do more proactive work with such seizure 

information in order to target firearms trafficking organizations. 

According to e-mail records, following the December 17 briefing, Cooley 

had multiple conversations about firearms cases on the Southwest Border with 

Kevin O’Keefe, Chief of ATF’s Criminal Intelligence Division, including a 

conference call with O’Keefe and Carwile on December 30. Cooley requested 

information at that time about these cases. At the start of January 2010 

Cooley informed O’Keefe that he would like to focus on “the AZ case” (Operation 

Fast and Furious) initially, but that he would be leaving for Texas to prepare 

for a trial that started in February. Cooley did leave thereafter for Texas for his 

trial, and did not return to the Operation Fast and Furious investigation until 

the beginning of March.179

C. January to February 2010: ATF Headquarters Learns About 

Additional Firearms Recoveries, Case Strategy, and Pursuit of a 

Wiretap 

Rowley was not the only ATF official who raised concerns about the large 

number of firearms that had been trafficked in Operation Fast and Furious. 

Assistant Director for OSII James McDermond told the OIG that the number of 

recoveries in the case caused him to request Chait’s presence at OSII’s 

regularly scheduled briefing for the Office of Field Operations on January 5, 

2010, so that they could discuss the investigation. McDermond said that 

others in attendance included Chait, McMahon, Martin, Kumor, and Rowley. 

OSII’s January 5 presentation included 29 PowerPoint slides. One of the 

slides, reproduced below, provided an update on the number of firearms that 

each of 23 Operation Fast and Furious straw purchasers and suspected straw 

purchasers had acquired. The number of firearms totaled 685, with Steward, 

Patino, and Moore having purchased 197, 115, and 113 firearms, 

respectively.180

 

179 As we described in Chapter Four, the U.S. Attorney’s Office for the District of

Arizona had opened the Operation Fast and Furious matter by late November, and U.S. 

Attorney Burke was enthusiastic about the case, telling his lead prosecutor, Emory Hurley, 

“Whatever you need to keep this moving forward, let me know.”

180 OSII’s briefings on January 5 and 12, 2010, showed that Jaime Avila had 

purchased five firearms.
244 

Presentation Slide 5.1 

A second slide, shown below, showed an analysis of 13 purchasers who 

had purchased firearms in a Southwest Border state that had been recovered 

outside the United States less than 30 days after the purchase. This list of 13 

purchasers included 8 who were associated with Operation Fast and Furious, 

including Patino and Moore. 
245 

Presentation Slide 5.2 

OSII DAD Martin’s notes from the briefing indicated that the firearms 

purchased included models popular with the Sinaloa Cartel. Martin also wrote 

in his notes, “FAs [firearms] walking.” When we asked Martin what he meant 

by this, he stated that he was worried that the firearms were leaving the FFL 

and then disappearing. Martin stated that he was concerned about public 

safety because “when AK-47s and 5.7 millimeter firearms go south to Mexico, 

they’re usually used to shoot somebody, and they’re not for collectors.” 

McMahon said he did not recall this specific briefing, but acknowledged 

that OSII provided the Office of Field Operations with weekly briefings. When 

we showed McMahon the slide showing 685 firearms and asked him if he 

recalled having a particular reaction to this information he replied, “Yeah, 

absolutely. I mean, the numbers of guns that were involved in this was 

staggering.” We asked McMahon if any steps were taken in the Office of Field 

Operations in light of this information. He replied: 

No, normally you just get updates, what’s going on and how close 

are we . . . what have you done to get the case together. . . . I may 

have even tasked OSII with getting us some more information, 

maybe not with just the purchase numbers but recoveries. 
246 

We also asked McMahon if he understood by the time of this briefing that 

part of the case strategy was to allow the firearms purchasing to proceed 

without ATF confronting the straw buyers. He replied, “Yes.” He said he 

concurred with that approach because ATF “didn’t have a case to do anything 

other than that in Phoenix,” meaning that he thought ATF did not have a legal 

basis to intervene. 

McDermond told us that after the January 5 meeting he asked Chait, 

McMahon, Martin, Kumor, and Rowley to stay behind. McDermond said he 

then asked Chait, “[W]hat’s going on? . . . Something’s not right here.” 

McDermond said that Chait replied, “Jim, you never worked one of these cases, 

so you don’t understand.”181

DAD Martin also said he recalled questioning the Office of Field 

Operations representatives after the meeting. Martin said that after the 

analysts left the meeting, he asked Chait and McMahon what the plan was and 

did not receive a response from them. Martin said he asked whether they were 

allowing guns to go into Mexico, and Kumor replied, “We can’t do that . . . the 

Ambassador won’t allow this.” He also stated that he recalled that Rowley 

asked the Office of Field Operations representatives, “[H]ow long are you going 

to let this go on?” and that the representatives did not say anything to allay 

Rowley’s concerns. 

 According to McDermond, Chait then excused 

himself to go to another meeting. 

Kumor and McMahon also said they recalled Rowley expressing concerns 

about the investigation, although they could not recall specifically when he did 

so. McMahon told us that during this time period, Rowley was “pretty 

adamant” about the fact that the investigation involved a lot firearms. 

McMahon said that when Rowley raised these concerns at meetings, the 

conversation would turn to how Operation Fast and Furious was “totally 

different” from other cases because the activity was in Arizona and their 

experiences as agents in New York or Virginia did not apply to circumstances 

there. Rowley told the OIG that there were no attempts “to engage me in a 

serious discussion about the concerns that I had.” 

Chait told the OIG that he recalled attending “one or more” OSII briefings 

on recoveries in Operation Fast and Furious. Unlike McMahon, however, Chait 

told us that no one ever expressed any concerns to him about the number of 

firearms that were being trafficked. Chait also said he did not believe it was 

appropriate to infer from the large numbers of firearms that were trafficked in 

the case that agents were cutting off surveillances and allowing firearms to 

 

181 McDermond was retired from the U.S. Secret Service after 22 years as a Special 

Agent and supervisor.
247 

cross the border, because the numbers could reflect traces to historical 

purchases by a large number of straw purchasers. 

McMahon told us that he was also concerned about the volume of 

firearms in the case. He said that his reaction to the large number of firearms 

involved in the case was to try to conclude it promptly. McMahon told us that 

he had “constant” conversations with Chait, Hoover, and sometimes with 

Melson about how to “bring the case down.” McMahon stated, “I think we were 

always thinking . . . we’re going to be taking this case down in the next week or 

so, and then the next thing you know it’s eight months later.” However, as we 

describe later in this chapter, McMahon was aware that one of the significant 

reasons for the delay in concluding the case was the decision by the U.S. 

Attorney’s Office and ATF, with Headquarters’ approval, to seek nine wiretaps 

between March and July 2010. 

McMahon told the OIG that at the time he believed Operation Fast and 

Furious was “an excellent case” and he was “excited” that it was targeting a 

firearms trafficking organization rather than individual straw purchasers. His 

primary contact in Phoenix was Newell, who shared this view. According to 

McMahon, he and Newell discussed the case strategy early on. McMahon told 

us that he initially spoke with Newell about “identifying some weak links in the 

straw purchasing chains” and trying to pressure the straw purchasers to 

cooperate. He said that Newell responded that the U.S. Attorney’s Office did 

not favor that approach, that it would jeopardize investigation of the larger 

firearms trafficking organization, and that his agents were close to identifying 

other conspirators.

On January 5, the same day as the OSII briefing at ATF Headquarters, 

ATF Phoenix agents Gillett, Voth, and MacAllister met with Assistant U.S. 

Attorney (AUSA) Emory Hurley to discuss the Operation Fast and Furious 

investigation. That evening, Newell e-mailed McMahon to report on the case. 

He wrote that the U.S. Attorney’s Office wanted ATF “to proceed with getting up 

on a wire before conducting any overt investigative activity,” and that the U.S. 

Attorney’s Office agreed that there was “very little to prosecute on” at 

present.182

 

182 As we described in Chapter Four, the case’s posture was similarly described by 

AUSA Hurley, who prepared a memorandum for his supervisor, Michael Morrissey, on January 

5. Hurley’s memorandum noted: “ATF [Phoenix] 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.” Hurley told the OIG that he understood 

that deferring contact with straw purchasers in Operation Fast and Furious differed from ATF’s 

past practices.

 Newell informed McMahon, “Even though I don’t like it I have to 

agree. . . .” He continued, “[W]e are doing everything possible to slow these 

guys [referring to the straw purchasers] down.” 
248 

McMahon told us that he did not know if he had learned of the specific 

methods that the agents were using at the time to slow down the purchases, 

but he said he assumed that they were doing “everything possible” and stated, 

“I just left it at that.” McMahon also stated that he concurred with the decision 

to defer confronting the straw purchasers and to pursue a wiretap, though he 

believed at the time that indictments would follow immediately after the 

wiretap ended. 

On January 8, 2010, Newell submitted his second Operation Fast and 

Furious briefing memorandum to McMahon. The memorandum recounted key 

facts about the investigation, including straw purchases of more than 650 

firearms, cash payments of approximately $350,000 for the firearms, the 5 

firearms recoveries to date, and the investigative techniques that were being 

employed.183

The memorandum also described the January 5 meeting with AUSA 

Hurley, and stated that “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.” In a section of the memorandum entitled “Investigative Strategy,” 

Newell stated that the “ultimate goal” of the investigation was the use of a 

wiretap to identify and prosecute members of a drug trafficking organization 

and to provide information to law enforcement in Mexico. With respect to 

future firearms purchases, the memorandum 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 . . . . It should be noted that since early 

December efforts to “slow down” the pace of these firearms 

purchases have succeeded and will continue but not to the 

detriment of the larger goal of the investigation. 

The memorandum also referred to the pace of purchasing by the straw buyers 

as a “blitz” and said it “created a situation where measures had to be enacted 

in order to slow the pace down in order to perfect a criminal case.” 

As described in Chapter Four, we found no evidence that ATF agents 

took any steps to slow down the pace of purchasing activity by Operation Fast 

and Furious subjects. 

 

183 The investigative techniques described in the memorandum included use of 

physical surveillance; pole cameras; pen registers; consensual monitoring; vehicle, telephone, 

business, and public records analysis; grand jury subpoenas; GPS tracking devices; and 

firearms traces.
249 

McMahon told the OIG that he did not remember reviewing the January 

8 memorandum though he believed he received it. He stated, however, that if 

he had reviewed the memorandum, it would have been a “red flag” to him 

because the memorandum made clear that ATF agents knew that those 

acquiring the firearms were committing illegal acts and the agents were 

allowing that conduct to continue. According to McMahon, he never discussed 

with Newell a strategy to allow the unlawful transfer of firearms. McMahon 

stated that no one ever told him that agents had probable cause to conduct 

seizures but were refraining from doing so. 

Chait stated that he did not believe that he received the January 8 

memorandum. McMahon’s e-mail account did not reflect that he forwarded it 

to Chait. Chait said that McMahon never discussed the strategy described in 

the memorandum with him, and he said he did not believe the strategy was 

sound because it failed to account adequately for public safety. Chait told us 

that he believed that Newell should have discussed the contents of the 

memorandum with McMahon and not have assumed that he received it and 

that “there was understanding.” 

Through January 2010, government agencies (other than ATF) continued 

to seize and recover firearms acquired by straw purchasers who were subjects 

in Operation Fast and Furious. On January 8, 2010, the Mexican Army seized 

14 firearms in Tijuana, Mexico, that had been purchased by Sean Steward, 1 of 

the leading Operation Fast and Furious straw purchasers and who had 

purchased the 9 firearms seized in Douglas, Arizona, on December 8. 

On January 12, 2010, Melson, Hoover, and Chait received information at 

an OSII weekly briefing about the mounting volume of firearms recoveries 

linked to the investigation. The presentation at the briefing included 15 

PowerPoint slides. One of the slides provided updated information on firearm 

recoveries linked to Operation Fast and Furious. The slide identified 729 

firearms that had been acquired by 24 persons, including 221 by Steward, 135 

by Patino, and 113 by Moore: 
250 

Presentation Slide 5.3 

Melson said that the information presented in the briefing showed that 

Operation Fast and Furious was a significant case for ATF but he did not recall 

his specific reaction to the information or whether he requested any follow-up 

to it. Melson also said that he expected Hoover, Chait, and McMahon to 

supervise the investigation and to be aware of how it was being handled, and 

that Chait probably should have made inquiries about what was being done 

with regard to Patino and Steward. Chait said he recalled that in January 

2010, there were “one or more OSII briefings on recoveries, [and] at least one 

where they talked about some of the guns were related to the Fast and Furious 

case . . . .” 

Hoover said he did not recall attending the briefing or seeing the 

information on Operation Fast and Furious, though he agreed he must have 

been present given his name was on the attendance sheet. He told us that the 

information would have prompted him to ask several questions about the 

investigation, including whether the firearms purchases were historical, 

whether agents had advance notice of the purchases and were conducting 

surveillance of them, and whether agents had performed any field 
251 

interrogations of the suspects. However, Hoover said that he did not recall 

taking any actions regarding Operation Fast and Furious in light of the 

January 12 briefing and we found no evidence that he did. 

The next day, January 13, 2010, the El Paso Police Department raided a 

“stash house” for drugs, currency, and firearms, and officers recovered 40 AK47s that once again Steward had purchased. McDermond told the OIG that 

the El Paso recovery was significant because it was the first time ATF noticed 

Operation Fast and Furious firearms exiting the United States outside of 

Arizona. The same day, Customs and Border Protection officers arrested an 

individual trying to cross into Mexico with another two firearms that Steward 

previously had purchased. 

Newell e-mailed McMahon on January 14 to notify him of the El Paso 

recoveries. Despite the lack of any involvement by ATF in these recoveries, 

Newell stated to McMahon that “we are working this ‘fast and furious’, the good 

news being we got another 42 off the street and can keep our case going. 

Hopefully the big bosses realize we are doing everything possible to prevent 

guns going to Mexico while at the same time trying to put together a 

phenomenal case.” As we described in Chapter Four, we found no basis for 

Newell’s statement to McMahon that “we got another 42 off the street,” given 

that ATF played no role in the El Paso seizure. Additionally, we found no 

evidence that ATF Phoenix had taken any action by this date to “prevent guns 

going to Mexico,” as Newell told McMahon. To the contrary, we found that ATF 

Phoenix and the U.S. Attorney’s Office had affirmatively decided not to take 

action against straw purchasers, even when they had advance knowledge of 

impending purchases, in order to avoid having the subjects learn about the 

investigation. 

At its weekly briefing to the Office of Field Operations on January 19, 

OSII staff presented a slide with information on the 10 firearms seizures and 

recoveries linked to subjects in Operation Fast and Furious since late 

November 2009, as well as an updated organization chart of the suspects in 

the case. At this briefing, OSII staff identified Steward as one of the top three 

straw purchasers in the case. 

As we described in Chapter Four, however, ATF did not seek to arrest 

Steward or any of the other leading straw purchasers in the case such as 

Patino, or Patino’s colleague Avila, until a year later. Instead, consistent with 

the case strategy outlined on January 8, 2010, Phoenix ATF and the U.S. 

Attorney’s Office focused much of their attention during January and February 

2010 on the substantial paperwork necessary to obtain a wiretap, including an 

initial 61-page affidavit from MacAllister. 

On February 5, 2010, ATF’s Phoenix Field Division submitted a 

memorandum to McMahon requesting authorization to seek Title III 
252 

interception of telephone communications in Operation Fast and Furious. The 

memorandum provided a brief overview of the investigation. It identified the 

five straw purchasers who were the initial subjects of the investigation and 

noted that others had since been identified, including Avila in November 2009. 

It also summarized the December 8, 2009, firearms purchase by Steward and 

subsequent recovery of nine of these weapons in Douglas, Arizona. The 

affidavit of SA MacAllister was listed as an attachment to the memorandum, 

but was sent separately by Federal Express due to its length. McMahon told 

the OIG that he approved the authorization request on Chait’s behalf without 

reading the underlying affidavit and that no one ever informed him that he had 

a responsibility to review wiretap affidavits from the field divisions that he 

oversaw.184

On February 20, 2010, Newell e-mailed DAD McMahon advising him of 

the seizure of 42 firearms that day from 2 females who were driving towards 

the border with Mexico from the Tohono O’odham Indian Reservation.185

Chait and McMahon stated that the Tohono O’odham seizure was an 

example that agents were exercising their authority to seize firearms in the 

case, and they assumed that agents were seizing firearms in other 

circumstances where they could. However, we found no evidence to indicate 

 

McMahon promptly e-mailed this information to Chait, who informed Deputy 

Director Hoover the next day. Chait described the seizure to Hoover as a “key 

takedown” in Operation Fast and Furious. ATF included a 1-paragraph 

description of the seizure in its weekly report to the Office of the Attorney 

General and Office of the Deputy Attorney General for the week of March 1, 

2010. The description did not mention “Operation Fast and Furious” by name 

and did not identify the investigative techniques being employed in the case 

other than use of a GPS tracking device.

 

184 Chait told the OIG that while ATF policies do not require DADs to review the 

supporting agent affidavit, he expected his DADs to review it if they had time, consistent with 

the demands of their other duties. Two DADs in the Office of Field Operations told us that it 

was their practice to review the wiretap affidavits from the field offices they supervised, with the 

depth of that review informed by their previous knowledge of the case and their confidence in 

the Field Division’s SAC. As DAD for ATF’s Western Division, McMahon had access to all nine 

wiretap applications in Operation Fast and Furious that ATF submitted to the Criminal 

Division. He initialed transmittal memoranda on Chait’s behalf from the Office of Field 

Operations to the Criminal Division for four of the wiretap applications.

185 As described in Chapter Four, through mid-February 2010, all of the firearms 

seizures and recoveries in Operation Fast and Furious were made by law enforcement entities 

other than ATF acting without intelligence from ATF. The February 20 Tohono O’odham 

seizure, which is described in detail in Chapter Four, was the first ATF-initiated seizure 

resulting from the investigation, and did not occur until approximately 4 months after the case 

was initiated. ATF’s second seizure in the case would not occur until another 4 months had 

passed, in June 2010.
253 

that either Chait or McMahon made any attempt to confirm this assumption, 

which, had they done so, they would have learned was incorrect. They also 

stated that they were unaware until 2011 that agents had been breaking off 

surveillances and failing to interdict firearms when they had authority to seize 

them. Hoover said that he assumed as well after seeing photographs of the 

Tohono O’odham seizure that agents were initiating seizures. He also stated 

that he assumed from the briefing slides he saw in March 2010 showing 

firearms seizures at various locations that ATF had provided information that 

prompted the seizures. Hoover said that McMahon and Chait told him in 

approximately April 2010 that agents were stopping the firearms whenever they 

had the opportunity. 

McMahon also said that there was an assumption “across the board” at 

ATF Headquarters that, “if there was an opportunity to seize weapons, then we 

were going to seize them.” McMahon said that Newell’s statement in the 

January 14 e-mail, “Hopefully the big bosses realize that we are doing 

everything possible to prevent guns from going into Mexico,” was a message 

that “absolutely” reverberated around ATF Headquarters. We found no 

evidence, however, that Chait and McMahon asked questions during the 

investigative phase of Operation Fast and Furious to determine whether ATF 

agents were in fact seizing weapons at every opportunity, or whether they were 

otherwise conducting the investigation in a manner that minimized the risk to 

public safety. 

III. March and April 2010: Briefings for Senior Leaders of ATF and the 

Department, the Exit Strategy, the Initial Wiretap Applications, and 

the Involvement of the Criminal Division 

As Operation Fast and Furious continued into the Spring of 2010, ATF’s 

senior management learned even more information about the investigation’s 

scale and attendant risks. During March 2010 they received important 

briefings about Operation Fast and Furious, one of which resulted in a request 

from Hoover for an “exit strategy” in the investigation. 

Melson and Hoover also delivered a high-level presentation about the 

investigation to Acting Deputy Attorney General Gary Grindler during one of 

ATF’s regularly scheduled monthly briefings with him. We describe these 

events below, as well as the initial applications for wiretaps and ATF’s 

discussions concerning Operation Fast and Furious with DAAG Jason 

Weinstein in late April and early May 2010. 
254 

A. ATF Briefings on March 1 and March 5 for Criminal Division 

Prosecutor and the Rejection by the U.S. Attorney’s Office of 

Criminal Division Assistance 

By the end of February 2010, Gang Unit prosecutor Cooley had 

completed his trial in Texas, and he reinitiated contact with ATF about his 

work on firearms trafficking cases along the Southwest Border. On March 1, 

ATF Headquarters’ staff briefed Cooley about firearms trace information related 

to Operation Fast and Furious and to firearms purchases in Texas. Cooley said 

that ATF provided him with contact information for AUSA Hurley and the case 

agents, and he e-mailed them on March 1 to let them know he had been 

assigned by his supervisors to provide assistance. ASAC Gillett responded to 

Cooley the same day that a briefing concerning Operation Fast and Furious 

was scheduled at ATF Headquarters on March 5 and invited him to attend. 

Newell told the OIG that he “pushed for” the March 5 briefing because he 

wanted ATF Headquarters to be fully informed about Operation Fast and 

Furious. According to Newell, “I wanted to be . . . very clear. This is what we’re 

looking at. This is what we’re doing. This is our plan. So that if anybody had 

an issue with it, speak now or forever hold your peace.” However, Chait told 

the OIG that he thought the purpose of the briefing was that Newell wanted to 

show that they were “going to take out a big organization.” Chait said that he 

did not believe that as a result of the briefing his office approved the Operation 

Fast and Furious case strategy because shortly after this briefing “we asked to 

close the case. Get us a closing strategy.” As we describe below, however, 

Chait did not request an exit strategy in the case; Hoover did, but not until 

later in March. 

Witnesses’ recollections varied as to who attended the March 5 briefing, 

and we were not provided a sign-in sheet for it. From the witness accounts, we 

concluded that the attendees included the leadership of the Office of Field 

Operations (McMahon and Chait), Cooley, and by videoconference several SACs 

from ATF field offices on the Southwest Border, including Newell.186

 

186 Hoover told the OIG that he did not recall attending the March 5 briefing, though 

other ATF Headquarters staff stated that he was present and Hoover’s Outlook Calendar shows 

he was invited to the meeting. Although we could not determine whether Hoover was 

physically present on March 5, we confirmed that he received the PowerPoint presentation from 

the meeting from Chait on March 10, which contained critical information about Operation 

Fast and Furious.

 No one 

was present from the U.S. Attorney’s Office for the District of Arizona, even 

though it had been handling the matter for several months and was actively 

working on finalizing the first wiretap application in the case. Melson was 

unable to attend. Both Melson and Hoover received separate briefings later in 
255 

the month, and Chait e-mailed Hoover a copy of the March 5 briefing slides on 

March 10, 2010. 

The briefing lasted approximately 90 minutes and was presented by 

Group VII Supervisor Voth and an analyst from OSII. It included presentation 

of 28 PowerPoint slides that summarized key facts about the investigation: the 

structure of the firearms trafficking organization; the total number of firearms 

purchased (1026); the number of firearms each straw purchaser had acquired 

(e.g., Patino – 313, Steward – 241, Moore – 116, Chambers – 68, and Avila - 

17); and the total cost of the purchases, which was approximately $650,000.187

 

187 Patino alone was identified as having spent approximately $215,000 on firearms.

 

The briefing also provided descriptions of 17 separate firearms recoveries 

dating from October 2010 through the end of February 2011 at 10 locations, 5 

of which were in Mexico, as well as photographs of firearms transfer locations. 

A slide describing one of the recoveries associated with Patino appears below: 
256 

Presentation Slide 5.4 

A total of 257 firearms were recovered at these 10 locations, and 199 of 

them were attributed to Operation Fast and Furious straw purchasers. The 

presentation also identified four other ATF investigations as “associated cases,” 

including Operation Wide Receiver, which we discussed in Chapter Three.188

The witnesses had differing recollections of the attendees’ reaction to the 

information presented during the briefing. The OSII analyst who presented 

part of the March 5 briefing said that an attendee from ATF’s Dallas Field 

Division voiced concern that too many firearms were involved in the case. 

Cooley also told us that someone from ATF raised a concern that there were 

already 1,000 guns on the street in the case. Chait, McMahon and Newell, in 

contrast, told us that they did not recall anyone voicing concern about the 

number of firearms that were involved in the case. McMahon said that 

 

188 As we discuss in Chapter Three, agents learned in early 2010 that a subject in Wide 

Receiver potentially was linked to a Tucson stash house involved in Operation Fast and 

Furious.
257 

“everyone accepted the fact that we have this big case and there’s a lot of 

guns.” 

Cooley said that in response to the comment that there were already 

1,000 guns on the street, he remarked that “if you want to go up on the 

[wiretap] . . . we’re going to have to let this thing ride out for a bit.” He told the 

OIG he understood ATF had decided to use a wiretap in the case and he agreed 

that they should do so if the goal was to target the organization. Cooley told us 

that in the context of the discussion about dismantling the entire organization, 

he stated that individual straw purchasers were “fungible” and that they 

should focus on targeting the organization. 

The OSII analyst who provided part of the March 5 briefing said that he 

thought it was obvious from the information presented at the briefing that 

agents were not seizing guns, and he interpreted Cooley’s comments at the 

meeting to indicate that this was an acceptable practice. However, the analyst 

told us that he did not raise any concern or objection in response to Cooley’s 

comments, nor did anyone else. Cooley told us that what he meant by his “ride 

out a bit” comment was that in using a wiretap, ATF would have to allow the 

straw purchasers to continue to buy, but that they would also have to continue 

to be aggressive in seizing weapons through techniques such as “wall stops” or 

stash house raids.189

Cooley also told us that the number of guns in the case seemed high and 

indicated to him that the case involved a very serious trafficking organization 

and needed to be addressed in a “fast and efficient manner.” He said that the 

timeframe he was contemplating was approximately two weeks to obtain 

authorization for the wiretap, a few weeks for the wiretap to function, and then 

“take what we can” and close down the case. Cooley also said he approached 

this meeting as a prosecutor assigned to the case, not as an advisor. As we 

describe below, however, Cooley did not become involved in the case because 

Hurley rejected his offer of assistance. 

 Cooley told the OIG, “You certainly don’t allow any 

weapons to cross the border if you have any way of stopping it.” 

The March 4 and 11 weekly updates from the Gang Unit to Deputy 

Assistant Attorney General Weinstein mentioned that Cooley had been briefed 

on the Fast and Furious case.190

 

189 “Wall stop” is a term used to describe enforcement action taken by law enforcement 

agencies other than the investigating agency in order to protect the investigation.

190 One of the reports briefly stated that Cooley had attended a briefing on March 1, 

2010, “on developments in Operation Fast and Furious and various firearms trafficking 

investigations based in Phoenix, AZ.” The other report stated that Cooley attended a briefing 

on March 5, 2010, regarding “Operation Fast and Furious, an extensive firearms trafficking 

(Cont’d.)
258 

Documents show that Newell anticipated Criminal Division assistance 

following Cooley’s appearance at the March 5 briefing. He sent an e-mail to 

Gillett immediately after the briefing instructing him to prepare a prosecution 

plan that ATF could show to Cooley. Newell informed Gillett that he wanted to 

work with Cooley because “[t]hat way we’ll already have Main Justice buy-in 

and they’ll [the USAO] know it here.” 

However, the following week Cooley ceased preparing to work on 

Operation Fast and Furious after he had a short conversation with AUSA 

Hurley and learned that Hurley did not want his assistance. Hurley told us 

that he spoke to his supervisor, Michael Morrissey, about Cooley’s offer of 

assistance. Hurley said Morrissey asked him how busy he was at that time, 

and Hurley told him that he was not too busy. Morrissey responded that it did 

not appear Hurley needed assistance on Operation Fast and Furious, and 

Hurley communicated this to Cooley. Hurley also told us that his impression 

was that the Arizona U.S. Attorney’s Office did not want to accept assistance 

from Main Justice because it somehow might make the Office look bad. Cooley 

notified his supervisor, Kevin Carwile, about his conversation with Hurley 

shortly thereafter.

On March 15, 2010, Weinstein e-mailed Carwile and asked him to send 

Weinstein “the names of the cases ATF HQ asked us to get involved in but 

which had in fact been shopped to the field.” Carwile responded on March 16 

that Cooley had been briefed on the Operation Fast and Furious matter, 

stating: “That is when he learned the USAO now had the case and was about 

to go up on a wire. We offered to help but they said they had it under control.” 

Weinstein told the OIG that there was nothing to do after Hurley rebuffed 

Cooley’s offer of assistance because when a U.S. Attorney’s Office does not 

want or need Criminal Division assistance “[w]e don’t force our way in.” He 

said that the Division does not oversee the U.S. Attorney’s Offices and must be 

invited by them to assist with their cases. Weinstein stated that he had not 

understood until he received Carwile’s e-mail that the U.S. Attorney’s Office 

had a prosecutor assigned to the case already and believed that someone had 

misinformed Melson in December 2009 that an Assistant United States 

Attorney was not handling the case. 

Melson and McMahon told the OIG they were frustrated with the 

Criminal Division’s failure to take a leadership role following Melson’s request 

for assistance. Melson said that “to my disappointment, [the Criminal Division 

 

investigation based in Phoenix, Arizona,” and that ATF planned to use a wiretap in the case. 

The reports were addressed to DAAG Weinstein, Principal Deputy Assistant Attorney General 

and Chief of Staff Mythili Raman, and Deputy Chief of Staff Steven Fagell.
259 

staff] didn’t grab and take a hold of it.” McMahon said that he understood that 

the Criminal Division was not willing to “push” its way onto the U.S. Attorney’s 

case because the Criminal Division did not believe that was its proper role. 

B. Acting Director Melson’s Briefing on March 11 

Melson told the OIG that he had been unable to attend the March 5 

briefing and that his staff wanted to provide him with a concise summary of 

Operation Fast and Furious. He said that he received a briefing on the 

investigation on March 11, 2010, from Kevin O’Keefe, the Chief of ATF’s 

Criminal Intelligence Division. According to O’Keefe, Hoover attended the 

briefing with representatives of the Office of Field Operations and OSII, and 

Hoover’s Outlook Calendar shows that he was invited to the briefing. Hoover, 

however, told us that he does not recall attending the briefing and has no notes 

from it. O’Keefe said that he provided Melson with a paper copy of the 

PowerPoint presentation from the March 5 briefing and went over each slide 

with him. E-mails regarding the briefing describe it as an abbreviated version 

of the March 5 presentation.191

Melson stated that he did not recall receiving information during this 

briefing about the “specific strategies” that the ATF agents were using in 

Operation Fast and Furious, but he remembered asking questions about 

various investigative techniques. ATF e-mails following the March 11 briefing 

show that Melson’s inquiries included questions about money transfers, the 

use of mail covers, a seizure in Nogales, and the internet address for the pole 

cameras the agents were using. These inquiries did not address the fate of the 

firearms that ATF agents were observing during their surveillances or otherwise 

raise questions about the risk to the public safety. 

Melson told the OIG that even though Operation Fast and Furious was 

one of ATF’s largest firearms trafficking cases, and the number of firearms and 

amount of money involved in the investigation was increasing, he did not have 

 

191 After reviewing a draft of this report, Melson told the OIG that he received less 

information at this briefing than that presented at the March 5 briefing. He noted that the ATF 

SACs who participated in the March 5 briefing did not raise any concerns to him about the 

information presented in the briefing, and that the OIG found no evidence that Gang Unit 

Attorney Cooley, who attended the March 5 briefing, had knowledge about the actual 

investigative techniques that ATF was employing and its failure to seize firearms when it could 

lawfully do so. Melson said that no one informed him of any problems either during his 

briefing on March 11 or as a result of the March 5 briefing. As we describe above, some 

attendees at the March 5 briefing, including an ATF SAC, voiced concerns during the briefing 

about the number of firearms in Operation Fast and Furious. In our analysis, we recognize 

that Melson was ill-served by the Office of Field Operations and SAC Newell, and that he 

should have received better information about Operation Fast and Furious. Our criticisms of 

Melson are discussed later in this Chapter and in Chapter Seven.
260 

questions about how the Phoenix Field Division was managing the case. 

According to Melson, there was no reason to ask such questions because he 

had no basis to suspect that anything was going wrong in the investigation. He 

also said he could not recall whether he asked for any actions to be taken given 

the content of the briefing. 

Melson also told the OIG that he was not informed of the agents’ failure 

to interdict firearms, and it did not occur to him to ask whether they were 

“letting guns go.” Although he was briefed on the large number of firearms 

purchased in the case, the small percentage of firearms recovered, and the 

even smaller percentage of ATF-initiated seizures, Melson said that he assumed 

that agents were seizing firearms when they could. As with Chait and 

McMahon, we found no evidence to indicate that Melson made any attempt to 

confirm this assumption and that had he assessed the matter, he would have 

learned it was incorrect. 

Both Melson and Hoover said that they did not recall anyone raising 

concerns to them during any briefings prior to 2011 about the tactics that were 

being used in the investigation. Hoover said that he had “no idea” that agents 

were following subjects to locations after they had purchased firearms and then 

dropping the surveillance, and that if he had known he would have stopped it 

and shut the case down immediately. 

However, McDermond told the OIG that both before and after the March 

briefings he expressed concern to Melson and Hoover about the large number 

of firearms acquired by the straw purchasers. He said that they told him that 

“this is going to be a great case” and that “we’re trying to get the DTO [drug 

trafficking organization].”192 Melson told us that he did not recall McDermond 

telling him about his concerns, and he believed that if McDermond had 

expressed concerns to him he would have acted on them.193

 

192 Newell also told us that he spoke to Melson during a visit to Phoenix in the summer 

of 2010 and told him that one of the issues in the Operation Fast and Furious would be the 

amount of firearms in the case. 

Hoover told us he 

did not recall McDermond or Rowley raising concerns about the number of 

firearms in the case before the “March time frame,” and that he did not have a 

sense before then that any particular straw purchasers had bought large 

quantities of firearms. 

193 After reviewing a draft of this report, Melson stated that McDermond, Martin, and 

Rowley never expressed concerns to him about Operation Fast and Furious despite the fact 

that he maintained “an open door” policy where staff could approach him directly with their 

concerns.
261 

C. ATF’s Briefing for the Acting Deputy Attorney General on 

March 12 

By mid-March 2010, the significance of Operation Fast and Furious to 

ATF’s senior leadership had increased to the point that ATF chose to describe 

the case to Acting Deputy Attorney General Gary Grindler during ATF’s 

regularly scheduled monthly meeting with him on March 12. Grindler had 

become Acting Deputy Attorney General in February 2010, and he told the OIG 

that the March 12 meeting was his first monthly meeting with ATF and the first 

time he had heard of the investigation and the title “Fast and Furious.” He 

said that the purpose of the monthly meetings was to afford ATF’s leaders an 

opportunity to report on key issues that they wanted to bring to his attention. 

The meeting agenda identified Operation Fast and Furious as the 

“Phoenix Case – Update on a significant firearms trafficking case.” The case 

was listed fourth on a list of seven discussion items. According to Grindler, the 

entire meeting was scheduled for 45 minutes and may have exceeded that time 

by a few minutes. Grindler said he could not recall how much time ATF 

devoted to Operation Fast and Furious during the briefing, but since there was 

only 45 minutes for seven agenda items he said that it “wasn’t a lot of time.” 

Similarly, Hoover told the OIG that the briefing for Grindler was not “in-depth” 

and that it was given “at a 50,000-foot level.” 

Melson and Hoover gave Grindler a packet of charts and diagrams at the 

briefing that presented an overview of the investigation.194

Grindler told us that he was aware at the time that there were almost 

60,000 traces performed on firearms seized in Mexico in 2009, and that tens of 

thousands of firearms had been seized there. He said that he did not recall 

having a concern about the volume of firearms that had been purchased in 

Operation Fast and Furious, and that if anyone had identified the volume as a 

concern he would have made a note about it. Melson stated that he did not 

 The briefing 

materials included information about the number of firearms that the straw 

purchasers had acquired (1,026), their cost (over $600,000), and the location of 

various firearms recoveries that were linked to Operation Fast and Furious. 

However, there was no indication during the presentation that ATF played any 

role in the recoveries, or that two FFLs were cooperating with ATF as part of the 

operation. As in Melson’s briefing the day before, one of the charts showed 

that Patino had purchased 313 firearms, Steward had purchased 241, Moore 

had purchased 116, and Chambers had purchased 68. 

 

194 According to Melson, Hoover made the presentation because Operation Fast and 

Furious was an ongoing investigation and Hoover had operational knowledge of it. Hoover, 

however, said he did not recall whether he made the presentation to Grindler.
262 

recall whether he highlighted for Grindler the number of firearms and amount 

of cash involved in the case, but said that the figures were significant in that 

they showed the size and scope of the case and not that there were problems 

with it. 

Grindler’s notes from the briefing also refer to “long rifles - multiple sales 

issues,” that the firearms purchases were “all cash,” and, on a photograph of 

firearms that had been seized, Grindler wrote that weapons had been tracked 

to several “stash houses.” Grindler said that the ATF officials discussed with 

him their desire to require FFLs to report multiple sales of long guns, and said 

he could not recall why he made a notation that the firearms purchases had 

been made in cash. Melson told the OIG that Grindler’s briefing included the 

long gun reporting issue because ATF expected to send him a memorandum 

later that month about it.195

 

195 Two weeks following Grindler’s briefing, on March 26, 2010, and again on December 

6, 2010, Melson sent the Department a memorandum requesting that ATF be permitted to 

issue demand letters to FFLs in select states requiring them to provide ATF with reports of 

multiple sales or other dispositions within any 5 consecutive business days of two or more 

rifles with the following characteristics: (a) semi-automatic; (b) a caliber greater than .22; and 

(c) the ability to accept a detachable magazine (“long guns”). Both memoranda explained that 

“multiple sales reports of the specified rifles will enable ATF to uncover more illegal activity and 

develop better intelligence about trafficking patterns,” and included a list of seven cases that 

ATF described as illustrating the potential benefit to ATF of collecting the requested 

information. After reviewing a draft of this report, Department officials stated that both 

memoranda were returned to ATF by staff in the Deputy Attorney General’s Office without 

formal action or approval. The first memorandum was returned with a request for revisions, 

and the second with instructions for ATF to resubmit it after complying with requirements of 

the Office of Management and Budget. The memoranda did not refer to Operation Fast and 

Furious by name, but stated: 

 After examining his notes Grindler said that ATF 

officials told him that ATF had used trackers to follow firearms. 

Phoenix Field Division: On or about November 1, 2009, individuals in the 

Phoenix, Arizona area began to illegally purchase firearms, firearm magazines 

and/or ammunition to be transported to Mexico. Case agents identified 25

individuals who purchased in excess of 1130 firearms in the Phoenix area with 

over-the-counter cash transactions. Twenty-two of these individuals purchased 

firearms that were recovered in Mexico in the possession of drug traffickers 

affiliated with the Sinaloa Cartel. Over 50 firearms purchased by two of these 

individuals were recovered in stash locations or during a crossing along the 

border in Arizona and Texas and were destined for delivery to drug trafficking 

organizations in Mexico. There was an extremely short time span, ranging from 

one (1) day to less than a month, between the purchases of all firearms and the 

recoveries. The majority of the firearms were purchased at an FFL involving 

transactions of five to ten rifles at a time.

We found other instances late in the investigation where ATF used Operation Fast and 

Furious to exemplify the need in its view for a long gun reporting requirement. On July 14, 

2010, Chait e-mailed Newell requesting information concerning Operation Fast and Furious 

(Cont’d.)
263 

Melson told the OIG that the purpose of Grindler’s briefing was to inform 

the Acting Deputy Attorney General about an investigation in Phoenix that 

involved a significant number of firearms and cash. He said that he did not 

raise concerns about the investigation during the briefing. He said that by the 

time of Grindler’s briefing he did not perceive that there were problems in 

Operation Fast and Furious and none had been brought to his attention. He 

stated that if he had understood that there were problems with the case he 

would have had specific discussions about them with staff in the Office of the 

Deputy Attorney General. 

Hoover also said that he did not recall identifying any problems to 

Grindler, and that he did not believe he, Hoover, was aware of any problems in 

the investigation at that time. Grindler told us that if Melson or Hoover had 

concerns about the investigation he “absolutely” would have expected them to 

say something to him about their concerns. 

Melson also told us that he believed there was nothing presented during 

the briefing to Grindler from which Grindler could have assumed what tactics 

agents were using in the investigation and their purpose. Hoover also said that 

the case strategy and tactics in Operation Fast and Furious were not discussed 

and that he could not have described them during the briefing because he did 

not know that information at the time. Similarly, Grindler told us that he did 

not recall discussing investigative techniques in the case except as reflected in 

his briefing materials and notes, which as noted describe the results of 

firearms traces (persons linked with seizures) and the tracking of certain 

weapons.196

 

because “we are looking at anecdotal cases to support a demand letter on long gun multiple 

sales.” Newell also included the investigation in talking points for the press conference on 

January 25, 2011, where he, along with Burke, announced the indictments in several gun 

trafficking cases, including Operation Fast and Furious. The following day Chait e-mailed 

Newell requesting sales information from the investigation and stated that “this case could be a 

strong supporting factor if we can determine how many multiple sales of long guns occurred 

during the course of the case.”

Melson told the OIG that the impetus for the long gun reporting requirement came from 

him, though he could not recall the date that he asked his staff to pursue the matter. He also 

stated that when he discussed the long gun reporting requirement with staff at ATF 

Headquarters, “[n]o one ever suggested that [Operation Fast and Furious] was being done for 

purposes of supporting our position on the long guns,” and that he did not make any decisions 

concerning the case in order to increase the likelihood that the long gun reporting requirement 

would be implemented. We found no evidence that contradicted Melson’s statements to us 

concerning the long gun reporting requirement; and no evidence that ATF Phoenix initiated the 

investigation in order to facilitate efforts to obtain long gun legislation.

196 Former Associate Deputy Attorney General Edward Siskel also attended this 

briefing. Siskel told us that although he did not remember the briefing, he did not dispute that 

(Cont’d.)
264 

Grindler, Melson, and Hoover all stated that the issue of “gun walking” 

was not mentioned during the briefing. Grindler told the OIG that at the time 

of the briefing he did not know whether ATF had advance notice of any of the 

purchases that were identified in ATF’s presentation to him, and he said he 

would not have assumed that ATF was doing anything other than attempting to 

interdict firearms. Grindler said that it would have surprised him if ATF was 

failing to interdict firearms and he would have recorded that in his notes. He 

stated that he understood ATF to be building its case by tracing weapons 

seized or recovered in Mexico back to their purchases in the United States. 

Grindler’s stated understanding of the case was similar to what Hoover told us 

was his understanding at the time of the briefing – that the seizures and 

recoveries being reported reflected historical purchases. Hoover said that it 

was not until after the briefing that he learned that ATF agents in fact had 

advance notice or contemporaneous knowledge of certain purchases by 

suspects in the investigation. 

Grindler told us that he did not make any decisions during the briefing 

and that he never authorized any aspect of the case during his tenure as Acting 

Deputy Attorney General. 

Grindler also told the OIG that he did not recall discussing Operation 

Fast and Furious at other meetings or ATF briefings he attended in 2010. We 

found no evidence to indicate that Grindler received any additional briefings 

about Operation Fast and Furious, or information about the strategy and 

tactics used in the investigation while it was ongoing.197

 

he was there because he has notes from the meeting. Siskel also told us that although he did 

not remember the briefing, he is “confident that had . . . inappropriate tactics been described in 

this meeting, I would have remembered something like that. And I don’t remember that.”

 As we discuss below, 

Grindler received various Weekly Reports in the summer of 2010 that 

contained passing references to Operation Fast and Furious but provided no 

details regarding the strategy or tactics used in the operation. In addition, as 

described in Chapter Four, after the shooting of Agent Terry, Grindler received 

an e-mail dated December 17, 2010, that referred to the connection between 

the Operation Fast and Furious investigation and the two firearms found at the 

scene of the murder. As we discuss below, Grindler took no action in response 

to learning that information. 

197 In his submission to the OIG following his review of the draft report, Grindler noted 

that during his tenure as Acting Deputy Attorney General, he had at least 10 regular meetings 

with ATF leadership and that based on a review of the agendas for those meetings and his 

notes, Operation Fast and Furious was only mentioned at the briefing on March 12, 2010.
265 

D. Hoover’s Request for Exit Strategy 

Hoover told us he did not recall attending the briefing on March 5 or the 

briefing for Melson on March 11, although his Outlook Calendar indicates that 

he was invited to the meetings and as mentioned earlier other witnesses placed 

him at both of these briefings. He said that after the March 5 meeting, Chait 

told him there were “a lot of guns being moved out of this Fast and Furious 

case” and that Chait’s comment prompted the briefing of Melson and Hoover 

later in March. 

Hoover said he recalled receiving a briefing on Operation Fast and 

Furious on March 22, 2010, from the Office of Field Operations, and that he 

recalled seeing at that briefing the slides that ATF had used in its March 5 

briefing.198

Hoover told us he asked Chait and McMahon at the briefing whether the 

firearms purchases referenced in the presentation were historical, meaning 

that ATF learned about them after the fact, or whether agents were aware of 

them by the time that they occurred. He said he was told that “it was a mix.” 

Hoover also stated that prior to receiving this information in March he believed 

that agents were being notified after-the-fact of the firearms purchases and did 

not have advance notice of them. 

 He stated that he could not recall if Melson attended the March 22 

briefing with him. 

Hoover also stated that prior to the briefing he received in March he 

believed that the volume of firearms purchases in the case was attributable to 

the large number of straw purchasers. He said he was unaware that a few 

straw purchasers, such as Patino, had purchased so many firearms, and that 

the new information he received at the briefing was a “red flag” for him.199

Hoover told us that the high volume of firearms acquired by some of the 

straw purchasers, combined with the fact that agents in some circumstances 

had advance notice of the purchases, prompted him to ask for an exit strategy 

at the end of the briefing. Hoover’s notes from the briefing show that he wrote 

down “Strategy?” which he said indicated that he asked for the exit strategy. 

 

198 As noted previously, on March 10, Chait e-mailed the slides from the March 5 

presentation to Hoover.

199 Hoover’s recollection of events fails to account for his participation in the March 12 

briefing of Acting Deputy Attorney General Grindler, which included presentation of the same 

information concerning the volume of firearms in the investigation (including by individual 

straw purchasers such as Patino) that prompted his request for an exit strategy. It also fails to 

account for his attendance at the OSII briefing on January 12, which also included similar 

information. Hoover said that he did not recall attending that briefing, nor did he recall 

attending the briefings on March 5 and March 11.
266 

Hoover stated that he had never requested agents to prepare an “exit strategy” 

for an investigation prior to Operation Fast and Furious. 

Melson said that he was not present when Hoover requested the exit 

strategy, and did not believe that he became aware of his request until after 

allegations in the case became public. Melson said that he learned afterwards 

that Hoover requested the “exit strategy” because the case had become too 

large and needed to be brought down and that Hoover delivered that message 

to Chait and McMahon. He also stated that Chait should have requested the 

exit strategy before Hoover. 

McMahon said he was not sure he was present when Hoover asked for 

the exit strategy or if Chait informed him of the request, but said he recalled 

being told of the need to obtain an exit strategy. Chait told us that he thought 

Hoover asked for the exit strategy during the March 11 meeting. According to 

Chait, he and Hoover had a conversation during the meeting about the need for 

an exit strategy, and Chait then asked McMahon to get it done. Chait also said 

he recalled reminding McMahon about it when it had not arrived. 

Our review determined that ATF Headquarters did not receive the exit 

strategy until April 27, more than 4 weeks after Hoover told us he requested it. 

McMahon told the OIG that he telephoned Newell immediately after receiving 

the request and informed Newell of the need to prepare the strategy. However, 

we found that McMahon sent an e-mail to Newell on April 27 stating that “[w]e 

need to begin working on an exit strategy for this case. Let me know what your 

plans are for taking this case down to include the timing.” McMahon said that 

he believed that his decision to e-mail Newell probably was prompted in part by 

his learning that he needed to attend a briefing on April 28 with DAAG 

Weinstein to discuss media issues related to the take down of Operation Wide 

Receiver and Operation Fast and Furious.200

After receiving McMahon’s request, Newell responded within a matter of 

minutes that he had already discussed an “exit strategy” and would send it to 

him that day, which he did. However, Newell expressed mixed sentiments to 

McMahon about ending the investigation until the wiretaps had produced 

evidence connecting the firearms with drug trafficking: “[W]e 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.” 

 

200 We describe the events surrounding this April 28 meeting in Chapter Three and 

later in Chapter Five.
267 

Following this exchange with McMahon, Newell wrote an e-mail that day 

to his acting ASAC regarding the need for an exit strategy, stating, “I too have 

been close to asking for an “exit strategy” on Operation Fast and Furious. At 

some point, regardless of the T-III issue, we need to take action just because of 

the amount and type (.50 cals, 8mms, etc) of guns being purchased.” He also 

informed the Acting ASAC that he did not think he could keep ATF 

Headquarters “at bay” longer than another 60-90 days. 

ATF e-mail shows that Voth prepared the strategy in a few hours and 

that Newell forwarded it to McMahon on the evening of April 27. The 3-page 

document identified “target goals” for 30, 60, and 90-day intervals that 

included obtaining intercepts of two telephones and arrests by day 90. It also 

stated that “straw purchasers in this case continue to purchase firearms 

almost daily.” 

McMahon said that he was not satisfied with the exit strategy because it 

was not well-defined and was “very open-ended,” but he did not return it to 

Newell for revisions. Instead, he said he forwarded the document to Chait and 

to Hoover because he wanted them to have it. ATF e-mails show that 

McMahon did not send the exit strategy to Chait until May 3, 2010; we found 

no evidence that McMahon sent it to Hoover.

Melson and Hoover each told us that they did not read the exit strategy 

memo until the following year, after the investigation already had been 

concluded. Hoover told us that he did not believe that he needed to 

micromanage McMahon and Chait and that he trusted them to oversee the 

investigation. Melson said that, when he finally did read it, he was 

disappointed with the exit strategy and wished he had seen it at the time. He 

stated that it lacked specific goals, objectives, and timeframes. 

Our investigation identified four later OSII briefings in March and April 

2010 that presented updated firearms purchase information for Operation Fast 

and Furious. Sign-in sheets indicate that Hoover attended an OSII weekly 

briefing on March 23, 2010, just one day after the briefing for him described 

above, that identified an additional 105 firearms traced back to Operation Fast 

and Furious, including three .50 caliber rifles. 

We did not identify other ATF Headquarters briefings concerning the 

investigation during the remainder of 2010. 

E. Discussions between Hoover, McMahon, and DAAG Weinstein 

about Operation Fast and Furious from April 28 to Early May 

2010 

As we described in Chapter Three, in early April 2010, Weinstein learned 

after reading the prosecution memorandum in Operation Wide Receiver that 

ATF had allowed guns to “walk” in that case, which Weinstein defined to 
268 

include choosing not to interdict firearms despite having the legal basis and 

ability to do so. On April 12, 2010, Weinstein sent an e-mail about the gunwalking issue in Operation Wide Receiver to Carwile and Carwile’s deputy 

James Trusty, and he and Trusty then briefed AAG Breuer about the matter on 

April 19, 2010. Breuer requested that Weinstein arrange a meeting with ATF 

leadership to make sure they understood that the Criminal Division would 

move ahead with the case but that the investigation had used “obviously 

flawed” techniques. On April 28, 2010, Weinstein and Trusty, along with two 

representatives from the Department’s Office of Public Affairs (OPA), met with 

Hoover and McMahon. 

Two days before the meeting, on April 26, McMahon received from SAC 

Newell a 1-page update memorandum on Operation Fast and Furious which 

Voth had authored. Newell’s cover e-mail noted, among other things, that 

“[t]hey are having a tough time due to the pre-paid phones being used. By the 

time they get AUSA and OEO approval for a specific phone the suspects are 

almost done with that phone.” The attached 1-page memorandum noted that, 

to date, over 1,300 firearms had been purchased by subjects of the 

investigation, and that over $900,000 in cash had been paid for those firearms. 

The report further stated that approximately 150 of the 900 firearms “have 

been recovered in Mexico or near the Mexican Border . . . with a short time-tocrime; some as little as one day.” 

Then, on the morning of April 28, prior to his meeting with Weinstein 

and Trusty, McMahon responded to Newell’s e-mail on April 27 attaching the 

exit strategy for Operation Fast and Furious (which we discuss above). In the 

e-mail, McMahon asked Newell about the status of the wiretap affidavits in 

Operation Fast and Furious. Newell wrote back stating that the fourth wiretap 

had been approved and that “I went to the airport last night to meet with the 

USA [Burke] as he was waiting for his flight to Mexico City. I briefed him in 

detail on our T-III issues and he’s going to get with OEO and the Chief Judge.” 

McMahon responded, “10-4. Do you have a recent briefing paper (overview) of 

‘Wide Receiver’? I have to participate in a briefing with DOJ this morning on 

this case. I need something ASAP. Sorry.” Newell replied with a 3-paragraph 

summary of Operation Wide Receiver indicating that the case would be indicted 

in two phases, the first on May 12 and the second later in May or June. The 

summary made no mention of any problems in the case. 

According to witness statements and notes taken at the April 28 meeting 

involving Hoover, McMahon, Weinstein, Trusty, and the two OPA 

representatives, the meeting included discussion of the gun “walking” issue in 

Operation Wide Receiver. As we described in Chapter Three, Trusty told us 

that the discussion of gun-walking was not in the nature of “finger-wagging” or 

admonishment of ATF. Although Weinstein told us he described the improper 

tactics, he said that he did not have to go into detail about the issue because 

he understood from Hoover’s reaction that he “immediately got why it was so 
269 

troubling.” The meeting also included discussion of issues in Operation Wide 

Receiver arising from use of an FFL as a confidential informant and an agent’s 

acceptance of a gift from the FFL, as well as concerns about potentially 

negative press coverage and the timing of the indictments in Operations Wide 

Receiver I and II. 

We found that there also was a brief discussion about Operation Fast 

and Furious during the meeting. One of the OPA representatives at the 

meeting told the OIG that two cases were discussed during the meeting. She 

said that based on subsequent press reports and a reference to “Fast and 

Furious” in her notebook, she understood that Operation Fast and Furious was 

one of the two cases, but she did not recall any specific comments regarding 

that investigation. She said that the discussion at the meeting centered on 

“press options” related to the announcement of these cases. She also said she 

recalled that there were a lot of guns involved in the cases, although she did 

not recall any mention of difficulties or challenges related to either improper 

tactics or the number of guns in the operations. 

McMahon also told us that he recalled that issues related to the timing of 

the indictments in Operation Wide Receiver led to some discussion about 

Operation Fast and Furious at this meeting. He said he remembered 

discussing that they would bring Operation Fast and Furious down “quickly” 

and that Operations Wide Receiver and Fast and Furious “aren’t great cases 

because of the length of time and the number of guns involved.” McMahon 

said that although Operation Wide Receiver did not have as many guns as 

Operation Fast and Furious, the cases were similar in that it took “years” to 

prosecute the cases. When asked whether he raised a public relations issue 

about that during the meeting, McMahon said he was “sure that came up 

because we were always talking about the length of time it took to get these 

people off the street and then make arrests.” 

Trusty said that he had a vague memory that the ATF officials referred to 

Operation Fast and Furious during the meeting. He said the case was 

described as a gun trafficking case where they were doing wiretaps, and that it 

involved “a lot of . . . high-level defendants and a lot of guns.” Trusty said that 

he understood that the Operation Fast and Furious case was a bigger case 

than Operation Wide Receiver, but that he did not remember “hearing anything 

about guns getting away” or that “guns are walking” in that investigation. 

Trusty said the only negative he recalled about Operation Fast and Furious 

was a vague recollection that the AUSA in Phoenix was moving slowly. He also 

said it sounded like a case he would like to assign Gang Unit staff to if he 

could. 

Hoover told us that he had no recollection of a discussion of Operation 

Fast and Furious at this meeting. He said he recalled discussing Operation 
270 

Wide Receiver and the possibility of including that case with Project 

Deliverance. 

Weinstein said there was no discussion during the meeting of “gun 

walking” in cases other than Operation Wide Receiver. He said that he “walked 

away [from the meeting]... with a very strong sense from Mr. Hoover that he 

had the same reaction that I did, that the tactics were not acceptable and that I 

had no reason to think, based on his reaction, that these were the kind of 

things that would be tolerated under his watch.” As a result, he said, they did 

not discuss whether guns had been allowed to walk in other cases, and 

Weinstein did not have any follow-up with Hoover or McMahon on this issue. 

Weinstein told us he believed that McMahon approached him after the 

meeting to inform him that ATF had another firearms case in Phoenix that, like 

Operation Wide Receiver, involved many firearms that had been trafficked. 

Weinstein said he could not recall whether McMahon used the name “Fast and 

Furious” during their discussion. According to Weinstein, McMahon said that 

ATF expected the case to “come down” within the next 30 days and that they 

could expect to receive some of the same questions about the two 

investigations due to the large number of firearms involved. He also told us 

that McMahon’s description of the case was “completely different” from 

Operation Wide Receiver and that McMahon “seemed to be under the 

impression that it was a case in which they were aggressively seizing guns.” He 

said that he understood McMahon to be saying that due to the volume of 

firearms that were being trafficked agents would not be present in every 

instance to seize them, and they would have to answer questions about “the 

guns they didn’t get.” In a prepared statement that he brought with him to the 

OIG interview, Weinstein also told the OIG that McMahon’s “brief description of 

the case, one in which agents were being aggressive about interdicting guns 

and were using wiretaps to enhance their ability to do so, was in sharp 

contrast with the tactics used years earlier in Wide Receiver, and only served to 

reinforce [Weinstein’s] view that Wide Receiver was an extreme aberration. . . .” 

In e-mails to Breuer reporting on this April 28 meeting, Weinstein did not 

mention Operation Fast and Furious. On April 28, Weinstein sent an e-mail to 

Breuer stating: 

Jim T and I met with Billy Hoover and with [the OPA personnel] to 

talk about this gun trafficking case with the issues about the guns 

being allowed to walk for investigative purposes. Can fill you in 

tomorrow in more detail but we all think the best move is to indict 

both Wide Receiver I and Wide Receiver II under seal and then 
271 

unseal as part of Project Deliverance, where focus will be on 

aggregate seizures and not on particulars of any one indictment.201

Breuer responded to this e-mail on April 30, and asked Weinstein 

whether there was “[a]nything I should know about [those]?” Weinstein replied 

shortly thereafter, telling Breuer: 

As you’ll recall from [Trusty’s] briefing, ATF let a bunch of guns 

walk in an effort to get upstream conspirators but only got straws, 

and didn’t recover many guns. Some were recovered in MX after 

being used in crimes. Billy[Hoover], Jim[Trusty], [the OPA 

personnel] and I all think the best way to announce the case 

without highlighting the negative part of the story and risking 

embarrassing ATF is part of Deliverance. 

Breuer told the OIG that he could not recall when in 2010 he first 

learned about Operation Fast and Furious, but he said he was sure that it was 

not before the end of April 2010. He stated that he did not know about the 

inappropriate tactics in Operation Fast and Furious until after ATF agents 

made public allegations in early 2011. Breuer also said that he was not briefed 

on the investigation during 2009 and 2010, and he did not authorize any of its 

operations. We found no evidence that Breuer was briefed on or authorized the 

strategy and tactics pursued in the investigation.202

McMahon reported on the April 28 meeting to Chait the same day, and 

like Weinstein did with Breuer, he did not mention anything about Operation 

Fast and Furious. He sent an e-mail to Chait stating that “[t]he briefing with 

DOJ on Wide Receiver went ok. I will brief you tomorrow on the details. Some 

surprises but nothing terrible.” 

Following their meeting on April 28, Weinstein and McMahon continued 

to communicate about Operation Fast and Furious. McMahon told us that he 

approached Weinstein shortly before May 4 to discuss delays with OEO’s 

approvals of the wiretaps. On May 4, Weinstein e-mailed McMahon to ask him 

if Weinstein should talk to OEO about the possibility of obtaining a roving 

 

201 As we noted in Chapter Three, Project Deliverance was an interagency, cross-border 

investigation focused on the transportation networks used by Mexican cartels to distribute 

narcotics and smuggle weapons and cash across the United States-Mexico border.

202 As described in the next section, although transmittal memoranda concerning the 

wiretap applications were addressed to Breuer and sent under his name, the applications were 

reviewed and authorized by Criminal Division DAAGs. Breuer did not review or authorize the 

applications.
272 

wiretap in the investigation.203

On May 7, Weinstein exchanged e-mails with the head of OEO regarding 

the wiretap applications. In his e-mail, Weinstein stated: 

 Weinstein’s e-mail did not address the issue of 

delays by OEO in approving the wiretaps. McMahon responded on May 6 that 

his agents did not believe a roving wiretap was feasible but that they would 

appreciate assistance in expediting OEO’s review of the wiretap applications. 

The USAO in AZ and ATF are working on a case ATF calls 

‘Operation Fast and Furious,’ which is a T-III investigation of a 

gun-trafficking ring responsible for sending well over 1,000 guns 

across the SWB into Mexico . . . . They have been working up the 

chain, and their wire target has not made it easy, apparently 

dropping a series of phones after about 30-45 days of use each. 

In the e-mail, Weinstein asked the head of OEO about the possibility of 

obtaining a roving wiretap, and also asked: 

To the extent a rover is not an option, is there a way to expedite 

the handling of the spins in this case so the agents are better 

positioned to keep up with the wire targets? This is perhaps the 

most significant Mexico-related firearms-trafficking investigation 

ATF has going, and it would be a great achievement if ATF were 

able to get far up the chain of the organization . . . . I know that 

every case is obviously significant, but any assistance you can 

provide to this case would be much appreciated. Thanks!204

In response to this e-mail, the head of OEO stated that he would prioritize the 

investigation, and provided Weinstein with a contact in OEO to discuss the 

possibility of a roving wiretap with the AUSA.

 

203 A “roving wiretap” is a wiretap that is specific to a particular criminal subject rather 

than to a particular wire or electronic communications device. “Roving wiretaps” also can 

include oral communications, i.e. a roving bug.

204 Weinstein told the OIG that he wanted to assist with the wiretaps to increase 

firearms interdictions. According to Weinstein, “the one contribution we could make was at 

least help them, do everything we could to help them keep pace with the criminals that they 

were trying to track so we could maximize our chances of intercepting the guns.” Weinstein 

also described to the OIG another case that he believed was a “good example” of using “real 

time information” from a wiretap to maximize opportunities to interdict firearms, and told us 

that Breuer had requested that the wiretaps be expedited for that purpose in that case. After 

reviewing a draft of this report, Weinstein stated that “his efforts to expedite the wiretaps in 

Fast and Furious were not unique to that case” and that he “would have sought to help in the 

same manner if the same concerns had been raised by any agency or U.S. Attorney’s Office 

about a priority case.”
273 

Later that day, Weinstein e-mailed McMahon to inform him that he had 

contacted OEO and had “very good news.” Weinstein and McMahon spoke by 

phone and, according to McMahon, Weinstein’s “good news” was that a single 

attorney in OEO would be reviewing all future wiretap applications for the 

investigation, thereby avoiding delays caused from a new OEO attorney 

learning about the case. 

Two weeks later, on May 21, OEO sent to Weinstein for his review and 

approval an application for a wiretap in connection with Operation Fast and 

Furious. While it was the fifth wiretap application in the investigation, it was 

the first that Weinstein had been asked to review. Weinstein signed the 

approval letter that same day. 

Less than two weeks later, on June 1, Weinstein received another wiretap 

application for review and approval by OEO that related to the Operation Fast 

and Furious investigation. Weinstein again signed the approval letter and sent 

AUSA Hurley an e-mail on June 1 telling him that he just approved the 

application request. Weinstein wrote: “How is the case going? I spoke to OEO 

a couple of months ago about the high priority of this investigation and 

arranged for expedited review of your renewals and spins – I hope you’re 

finding faster turnaround times for the last few . . . .” Hurley responded with a 

brief, positive description of the work being done by OEO and the agents on the 

wires, and noted that the agents “are identifying participants in the gun 

trafficking that would never have been identified without the wire.” Weinstein 

replied, “[T]hat’s great – best of luck, and let us know if we can do anything to 

help.” Weinstein authorized his final wiretap in Operation Fast and Furious on 

June 23, 2010. 

We asked Weinstein whether his review of the wiretap applications was 

affected in any way by the fact that he had learned that ATF had “walked” guns 

in Operation Wide Receiver. Weinstein answered, “No.” He told us: 

Wide Receiver I viewed as an extreme aberration from three years 

earlier. . . . And it was such an aberration that frankly, you know, 

it wasn’t the kind of thing that I could imagine being repeated. 

And when I raised it with the number two guy at ATF, his reaction 

was consistent with my own, and based on his reaction, I was 

pretty confident that it wasn’t the kind of thing that was going to 

be repeated. 

We found no evidence that Weinstein ever asked ATF officials whether agents 

in Operation Fast and Furious were using the same flawed strategy and tactics 

that had been employed in Operation Wide Receiver. 
274 

F. Review of the Wiretap Applications 

Between March 10, 2010, and July 30, 2010, the U.S. Attorney’s Office 

for the District of Arizona submitted, and three different DAAGs for the 

Criminal Division approved, nine requests for authorization to intercept wire 

communications in Operation Fast and Furious. In this section we describe 

the statutory and procedural framework for the review of applications for 

authority to conduct electronic surveillance. We also summarize the contents 

of the wiretap applications and affidavits submitted in Operation Fast and 

Furious. We then describe what the ATF and OEO attorneys and the DAAGs 

who reviewed the applications told us about their review process. 

1. Review Process 

Federal law authorizes the government to conduct electronic surveillance 

of oral communications for law enforcement purposes. See 18 U.S.C. §§ 2510-

2522. To obtain approval, the government must submit an application to a 

federal court showing that there is probable cause to believe “that an individual 

is committing, has committed, or is about to commit” a specified criminal 

violation and that there is probable cause to believe that a particular 

communication “facility,” such as a cellular telephone, is being used by 

subjects in furtherance of the specified criminal violations. 18 U.S.C. § 

2518(3). The application also must demonstrate that “normal investigative 

procedures have been tried and failed or reasonably appear to be unlikely to 

succeed if tried or be too dangerous.” 18 U.S.C. § 2518(3)(c). Orders for 

electronic surveillance are issued for a period not to exceed 30 days, but can be 

extended with court permission, and surveillance must terminate when the 

authorized objectives are attained. 18 U.S.C. § 2518(1)(d)(5). 

Wiretap applications are supported by an affidavit from an agent or other 

“investigative or law enforcement officer” that sets forth the facts that establish 

the probable cause and other criteria required by the statute. 18 U.S.C. § 

2518(1). The affidavit is typically drafted by the agent and reviewed by the 

prosecutor assigned to the case. The prosecutor also is responsible for drafting 

the application that sets forth the basis for the court’s jurisdiction to authorize 

the electronic surveillance. 

An application cannot be filed in court until the Department’s Criminal 

Division approves it. The Department’s procedures require that each 

application and supporting affidavit, which is provided by the responsible U.S. 

Attorney’s Office, be reviewed by an attorney in OEO. During the time period 

in which the draft applications for Operation Fast and Furious were submitted, 

the Department did not have a policy requiring U.S. Attorney’s Offices to 
275 

require supervisory approval of wiretap applications before they were sent to 

OEO.205

The Department’s procedures also required submission of the draft 

application and affidavit to the Washington, D.C., office of the investigative 

agency handling the case. The review process for wiretap applications at ATF 

in effect at the time required the relevant field division to provide the draft 

affidavit to ATF Headquarters, where it was reviewed by the Office of Chief 

Counsel and the Office of Field Operations. The Office of Field Operation’s 

review addressed administrative considerations such as whether resources 

were available to support implementation of the wiretap, and the Office of Chief 

Counsel’s review addressed the legal sufficiency of the application. Upon 

completion of their review, the Assistant Director for the Office of Field 

Operations would send a memorandum to the Assistant Attorney General for 

the Department’s Criminal Division requesting authorization to proceed with 

the application.

 As we described in Chapter Four, the U.S. Attorney’s Office for the 

District of Arizona did not have a formal process for supervisory review of draft 

applications to conduct electronic surveillance, and the wiretap applications for 

Operation Fast and Furious received minimal supervisory review there. 

206 ATF policy required review of the application by the 

Assistant Director for the Office of Field Operations. However, we found that 

AD Chait did not review the applications for Operation Fast and Furious.207

 

205 By memorandum dated March 19, 2012, the Department now requires that 

supervisors in U.S. Attorney’s Offices review and approve applications to conduct electronic 

surveillance before the materials are submitted to the Department.

DAD McMahon signed on Chait’s behalf authorization requests for four of the 

applications without reading the draft affidavits. 

206 The Department eliminated this requirement in June 2010.

207 ATF’s policy concerning requests for wiretaps, ATF Order 3530.2, was established in 

1989 and had not been updated by 2010 to account for changes in ATF’s organization. With 

respect to review requirements, the policy stated: “The application for authorization to seek an 

interception order shall be prepared by the supervising attorney and addressed to the Assistant 

Attorney General, Criminal Division, Department of Justice, and shall be forwarded through 

channels from the Associate Director (Law Enforcement) (ADLE). A copy of the application and 

affidavit will be stored in the designated Systems and Records Branch file, after ADLE review.” 

According to ATF officials, the Assistant Director of the Office of Field Operations took the place 

of the Associate Director of Law Enforcement, and there was no delegation from the Assistant 

Director of the requirement to review the application and affidavit.

We found that neither Chait nor McMahon reviewed the wiretap applications. Chait 

told the OIG that they did not “pass through” his office and he did not believe that he 

authorized them. He said that he expected the DADs to read the affidavits “as best they can,” 

but “because they’re under such crunch time, . . . there’s nothing in our orders that says that 

the DAD has to review the Title III.” McMahon told us that it was not his practice to review 

wiretap affidavits that came through his office and that he was not aware that he was 

supposed to review them.
276 

The OEO attorney who receives an application coordinates with the 

prosecutor handling the case regarding any changes or additions to the 

affidavit. After the affidavit is put in final form, the OEO attorney provides a 

memorandum addressed to the Assistant Attorney General for the Criminal 

Division that summarizes and analyzes the relevant facts and legal issues 

pertinent to surveillance, and that discusses the application’s compliance with 

the requirements of the statute. This memorandum, along with the draft 

approval letter, application, affidavit, and court order, is sent for review to an 

official designated by the Attorney General to authorize electronic surveillance 

applications.208 The Assistant Attorney General does not actually receive 

applications and, with certain exceptions, is not required by law to review 

them.209

After the designated official authorizes the application, OEO transmits to 

the prosecutor an authorization memorandum that is included with the 

application that is filed in federal court. 

2. Content of the Wiretap Applications 

Longstanding Department procedures prescribe the content of wiretap 

applications and affidavits to ensure they meet the criteria of necessity and 

probable cause established by the federal wiretap statute, 18 U.S.C. § 2510, 

et.seq., and relevant Department policies regarding the interception of 

electronic communications. Consistent with these procedures, each of the 

affidavits submitted in support of the Operation Fast and Furious wiretap 

applications included language stating that the information presented was not 

a comprehensive summary of the investigation and was limited to those facts 

that supported the wiretap request. 

As described in Chapter Four, the first application and affidavit for 

electronic surveillance in Operation Fast and Furious were submitted to OEO 

on March 4, 2010, and approved on March 10. The March 10 affidavit 

provided a detailed picture of the investigation conducted up to that date, 

 

 

 

208 The wiretap statute explicitly assigns review and approval of electronic surveillance 

applications to the Attorney General, but allows the Attorney General to delegate this review 

and approval authority to a small number of designated officials, including DAAGs in the 

Criminal Division. 18 U.S.C. § 2516(1). Attorney General Holder has specially designated 

DAAGs in the Criminal Division, among others, to authorize wiretap applications. Office of the 

Attorney General, Order No. 3055-2009, February 26, 2009.

209 For example, the Assistant Attorney General or the Acting Assistant Attorney 

General for the Criminal Division must review and approve applications for “roving” wiretaps. 

18 U.S.C. § 2518(11); U.S. Attorney’s Manual 9.7.100.
277 

 The March 10 affidavit stated that 

 

 It also stated that 

 

 

 It further stated that 

 

 

 

 

 

 

We found that the affidavits described specific incidents that would 

suggest to a prosecutor who was focused on the question of investigative 

tactics that ATF was employing a strategy of not interdicting weapons or 

arresting known straw purchasers. For example, the March 10 affidavit 

described 

 The 

affidavit recounted that 

 

 

 

The affidavit also described 

 

 

 

 

 

 

 210

Similarly, the May 21 affidavit described events from which a reader who 

was reviewing for a purpose beyond establishing the statutory requirements 

 

 

 

 We 

found that a reader of this series of events in the affidavit would infer that ATF 

was not taking enforcement action to arrest or interdict the weapons 

he was purchasing. 

 

210 The affidavit incorrectly identified 

 
278 

would infer that ATF was not taking enforcement action against straw 

purchasers. Like the March 10 affidavit, this affidavit began by recounting 

 Thus, the affidavit indicated 

that 

 The affidavit reported that 

 

 

 

 Additionally, the affidavit stated that 

 

 

 

 

The affidavit went on to describe with greater particularity 

 

 The affidavit noted that 

 

 

 The affidavit also noted that 

 The affidavit further noted 

 

 

 

 

The affidavit also described 

 It stated that 

 

 

 

 It also recounted that 

 

 

 

 Although the affidavit stated that 

 it also stated that 

Significantly, the affidavit stated that 

 

 Thus, although the affidavit was silent on 

 

 

 
279 

we concluded that a reader would infer from the facts stated that agents were 

not taking enforcement action to interdict the weapons or arrest 211

Moreover, a reader of only the 5-page OEO cover memorandum would 

have learned significant facts The memorandum stated that 

 

 

 It then stated that 

 

 The memorandum then described 

(as did the agent’s affidavit) 

 

 

 

 

 212

Although the OEO cover memorandum and the agent’s affidavit were 

silent on whether the ATF agents made efforts to seize the weapons purchased 

 , both documents stated that 

 

 We concluded that a reader of the OEO cover memorandum would 

infer from the facts stated that ATF agents did not take enforcement action to 

interdict the weapons or arrest 

 

 

 

Finally, although the nine wiretap affidavits described some 

 

 

According to the affidavit in support of the final wiretap extension request, 

 

 

 

211 The information about 

 was also included in the April 15 affidavit and application, 

which requested authorization for electronic surveillance on a target cellular phone used by 

The information was also included in the OEO cover memorandum regarding that 

application, which is undated.

212 The affidavit (but not the cover memorandum) also stated that 

 

 

 
280 

3. Review of the Operation Fast and Furious Applications 

by OEO and the DAAGs 

We found that one OEO staff attorney and one ATF staff attorney 

reviewed all nine wiretap applications in Operation Fast and Furious and the 

supporting affidavits. These attorneys told us that their review was focused on 

an assessment of the application’s legal sufficiency under governing wiretap 

authorities. They stated that the information presented in the applications is 

not designed to furnish a comprehensive overview of the case that would allow 

them to make informed judgments about agents’ conduct, and their review 

does not involve assessment or authorization of operational aspects of the 

underlying investigation. The OEO attorney also told us that he had not 

received training in how to evaluate such issues in gun trafficking cases. 

Our examination of then-applicable wiretap resource materials (for 

example, the various checklists used in OEO for reviewing wiretap applications) 

confirmed that the focus of the OEO attorneys’ reviews was to evaluate whether 

the application met the statutory criteria of probable cause and necessity.213

In addition, our examination of the OEO cover memoranda prepared for 

the Operation Fast and Furious applications showed that the memoranda 

focused on information related to the legal requirements needed to obtain a 

wiretap. Each of the memoranda presented a brief overview of the investigation 

and potential statutory violations, as well as information about the use of the 

target telephones and an assessment of probable cause. Each memorandum 

also contained summary conclusions regarding whether the information in the 

affidavits met the statutory requirements of necessity and minimization. Each 

memorandum concluded with a recommendation that the Criminal Division 

authorize the application. 

 

Each of the affidavits that ATF submitted in support of the Operation Fast and 

Furious wiretap applications included language stating that 

 

 

We interviewed DAAGs Blanco and Weinstein about their review of the 

wiretap applications in Operation Fast and Furious. Blanco reviewed and 

approved the first wiretap application on March 10, as well as a wiretap on 

July 1, 2010. As noted previously, Weinstein reviewed and approved three 

 

213 Memorandum from Matthew W. Friedrich, Acting Assistant Attorney General, 

Criminal Division, “Recent Changes Regarding the Office of Electronic Operation’s (OEO) 

Electronic Surveillance Unit (ESU),” July 11, 2008 (Attachment C – Title III Wire Affidavit 

Checklist for Law Enforcement Agents).
281 

wiretap applications in connection with Operation Fast and Furious, on May 

21, June 1, and June 23, 2010.214

Both Blanco and Weinstein told the OIG that that their role in reviewing 

the wiretap application process was to assess the legal sufficiency of the 

application. In addition, they told us that that they did not supervise the 

AUSAs in the field or review the applications for operational tactics or 

judgments in the case. Weinstein said that they were not in a position to do so 

because the application did not contain “every material fact about the case,” 

but rather, only “the information necessary . . . to establish probable cause and 

necessity.” He said that the DAAGs’ review was, “not in any way perceived to 

be a supplement for or a replacement for supervisory review.” 

DAAGs Blanco and Weinstein also stated that in reviewing wiretap 

applications, they rely on information presented in OEO’s cover memorandum 

and read the affidavits supporting the applications only if the memoranda fails 

to furnish sufficient information or raises concerns. Weinstein said that in the 

“rare” case where something in the memorandum was confusing or unclear, he 

would consult the affidavit. Similarly, Blanco said that unless something in 

the memorandum gave him pause, he would read the memorandum only. 

They also said it would be impossible for them to review all of the 

affidavits they receive. According to Weinstein, in the 3 years he had held the 

position he had reviewed “high triple digits” of applications. He said that there 

were some days when he would review 2 or 3, and other days when he has 

reviewed nearly 20. 

Weinstein told us he did not read the wiretap affidavits in Operation Fast 

and Furious, and Blanco told us he did not recall reading them. 

IV. Events from the Summer 2010 to Agent Terry’s Murder 

A. Criminal Division Assistance is Again Rejected by the U.S. 

Attorney’s Office 

As described more fully in Chapter Three, in 2009 the Criminal Division 

offered the assistance of Gang Unit prosecutors to the Southwest Border 

districts. As a result, Laura Gwinn began work on investigations in Arizona, 

including Operation Wide Receiver out of Tucson. In May 2010, Gwinn was 

prepared to indict the second set of Operation Wide Receiver defendants. She 

 

214 The remaining four wiretap applications, dated April 15, May 6, May 14, and July 

30, 2010, were reviewed by DAAG Keeney, who is now deceased. As noted in Chapter Three, 

Keeney also approved wiretap applications in connection with Operation Wide Receiver.
282 

conferred with Hurley about the timing of these indictments and any impact 

they might have on Operation Fast and Furious. Hurley requested that she 

defer arrests and indictments in Operation Wide Receiver to avoid 

compromising the investigation in Operation Fast and Furious.215

In mid-June, Gang Unit Chief Kevin Carwile inquired whether the 

Arizona U.S. Attorney’s Office had any other cases that Gwinn could help them 

prosecute. The U.S. Attorney’s Office responded that Gwinn could assist 

Hurley on the Operation Fast and Furious wiretaps and take the lead on 

another case. Gwinn travelled to Phoenix, and by the end of July she reported 

in an e-mail to her immediate supervisor, James Trusty, that she was “still 

trying to ‘learn’ the case through review of wire-tap applications, a running log 

of overt acts and discussions with the lead attorney.” Gwinn told us she 

understood that Operation Fast and Furious was “a big sprawling case” and 

that for one person to complete all of the paperwork and related tasks was 

difficult. She said that Hurley appeared overworked and she wanted to help 

him. 

Gwinn told us that Hurley “rebuffed” her offers of assistance and that it 

was “clear” by mid to late August that Hurley was not going to let her be 

involved in the case. As described in Chapter Four, Hurley told the OIG that 

Gwinn did not work on Operation Fast and Furious and that he could not 

recall her offers to assist. Gwinn said she believed Hurley did not want her 

involved with the case in part because he viewed gun trafficking as his 

“fiefdom.” As a result, Gwinn said, she never became a member of the 

prosecution team, did not participate in drafting the indictment, and offered no 

legal advice.

While both Gwinn and Hurley said that Gwinn’s participation in 

Operation Fast and Furious was very limited, e-mail records show that she 

attended a meeting in June. Gwinn told the OIG that the meeting included 

Hurley and several ATF agents and focused on whom to indict, the timing of 

the indictment, and a wiretap in the case. Gwinn also obtained copies of ROIs 

from MacAllister and read and took notes from them. Gwinn’s notes from the 

ROIs describe numerous surveillances and weapons transfers. She also 

reviewed the wiretap affidavits. 

We asked Gwinn whether her review of the wiretap affidavits and ROIs 

caused her concern. Gwinn stated that based on review of these materials, she 

developed concerns similar to those she had developed regarding Operation 

Wide Receiver. She said that she knew after reviewing the ROIs and affidavits 

 

215 The second set of Operation Wide Receiver defendants were indicted under seal in 

October 2010.
283 

that ATF was “observing guns being bought, and being taken, and being 

transferred.” She told us that it was her impression that ATF was intentionally 

not interdicting firearms in order to advance a strategy that targeted the gun 

trafficking organization (as opposed to individual straw purchasers). Gwinn 

said she did not recall discussing the case strategy with Hurley and the case 

agents. 

Gwinn said that she did not inform her supervisors about her concerns 

because by the time she reviewed the ROIs and affidavits, it was late in the 

investigation and it was clear the Gang Unit was not going to be involved in the 

case. She also said that she assumed that decisions about the case were being 

made in conjunction with supervisors in the U.S. Attorney’s Office and the ATF. 

She said that she would have expected the supervisors in Phoenix to get 

updates at least every couple of weeks on a case of this magnitude. She said, 

“I would have thought, when you’re talking about . . . going up on six, seven 

lines, at some point a supervisor, somebody would be [asking], “[W]hy do we 

keep doing these wiretaps? Where are we at on this?”216

Trusty also told us that Gwinn did not discuss with him “gun walking” in 

Operation Fast and Furious, and said he would have remembered the 

discussion if it had occurred. 

Criminal Division e-mails in October 2010 and January 2011 indicate 

that there was some confusion as to the level of involvement Gwinn had on 

Operation Fast and Furious. As we described in Chapter Three, Gwinn had 

planned to indict Operation Wide Receiver II under seal in late October 2010, a 

week before Hurley’s target date for indictments in Operation Fast and Furious. 

In early October 2010, however, Hurley told Gwinn that he had deferred his 

target date and that she could move forward on Operation Wide Receiver 

without adversely affecting Operation Fast and Furious.” Gwinn subsequently 

stated in a weekly update that she planned to indict Operation Wide Receiver II 

on October 27, 2010, and that it would remain under seal until Operation Fast 

and Furious was ready for takedown. 

After reading this update, Weinstein sent an e-mail to Trusty on October 

17 asking whether Breuer should “participate in press when Fast and Furious 

and Laura’s Tucson case are unsealed? It’s a tricky case, given the number of 

guns that have walked, but it is a significant set of prosecutions . . . .” 

Weinstein told us that the “tricky case” he was referring to was Operation Wide 

Receiver. Trusty responded on October 18: 

 

216 Although this may have been a reasonable assumption, as we describe in Chapter 

Four, it was a mistaken one.
284 

I think so, but the timing will be tricky, too. Looks like we’ll be 

able to unseal the Tucson case sooner than the Fast and Furious 

(although this may be just the difference between Nov and Dec). 

It’s not clear how much we’re involved in the main F and F case, 

but we have Tucson and now a new, related case with approx 9 

targets. It’s not going to be any big surprise that a bunch of US 

guns are being used in MX, so I’m not sure how much grief we get 

for “guns walking.” It may be more like, “Finally, they’re going 

after people who sent guns down there . . . .”217

Four days later, in response to a question from an OPA representative as 

to whether Operation Wide Receiver was being prosecuted jointly with the 

Arizona U.S. Attorney’s Office, Trusty e-mailed Gwinn, Sweeney, and one of 

Sweeney’s colleagues that “Laura [Gwinn] is in the mix on two other AZ cases 

involving gun trafficking (‘Fast and Furious’) with hopes that there will be a 

December takedown.” 

Trusty also described his expectations for Gwinn’s role in Operation Fast 

and Furious in an e-mail to Weinstein on January 24, 2011, the day before the 

announcement of the Operation Fast and Furious indictment. In the e-mail 

that same day, Weinstein asked Trusty whether the Criminal Division would be 

attending the Operation Fast and Furious press conference or participating in a 

press release. Trusty responded that the Criminal Division would not 

participate in the press conference but would participate in the press release 

because “we anticipate that Laura Gwinn will be a part of the F&F prosecution, 

although she’s been more of a consultant up til this point. I talked with their 

1st Assistant late last week and he was already assuming she’d be at trial table 

for F&F.” 

Trusty told the OIG that he wanted the Gang Unit to be part of Operation 

Fast and Furious and believed he had an agreement with the leadership of the 

Arizona U.S. Attorney’s Office to have Gwinn participate in the prosecution, but 

that Hurley did not accept her offers of assistance. He said that as a result the 

underlying problem for the Gang Unit was that “we weren’t on the case” and 

therefore could not affect it. 

B. Submission of Weekly Reports to the Offices of Attorney 

General and Deputy Attorney General 

We determined that the Offices of the Attorney General and Deputy 

Attorney General received several weekly reports during 2010 from ATF, DOJ’s 

 

217 As we discuss in Chapter Three, Weinstein and Trusty stated that the reference to 

“guns walking” was related to Operation Wide Receiver.
285 

Criminal Division, and the National Drug Intelligence Center (NDIC) that either 

mentioned “Operation Fast and Furious” by name or referred to activity in the 

investigation. The majority of these reports were submitted during the summer 

2010. We did not find in any of the weekly reports any reference to ATF agents 

breaking off surveillances, failing to interdict firearms, or other problems with 

the investigation. 

Between June 28, 2010, and August 9, 2010, NDIC provided seven 

weekly reports to the Offices of the Attorney General and Deputy Attorney 

General that referred to Operation Fast and Furious by name. Six of these 

reports described the work of an NDIC Document and Media Exploitation Team 

(DOMEX).218

In addition, in July 2010 ATF submitted a weekly report that described 

the recovery of 73 firearms from a business in Phoenix and stated that traces 

on the firearms indicated that they had been acquired by known straw 

purchasers in Operation Fast and Furious. The report stated, “[t]his recovery 

adds to the total of 169 firearms recovered the previous 25 days as part of the 

Southwest Border firearms trafficking investigation.” In addition, three 

Criminal Division weekly reports referred to plans to indict certain persons but 

keep the indictment under seal until Operation Fast and Furious was ready for 

“takedown.”

 ATF requested this team to identify assets, cash payments, and 

money laundering activities; assist with weapons tracking; and conduct “link 

analysis” of organizations identified in the investigation. The NDIC reports 

stated that straw purchasers in the case had acquired 1,500 firearms that were 

supplied to Mexican drug trafficking cartels. 

219

Acting Deputy Attorney General Grindler told the OIG that he had no 

recollection of having reviewed any weekly report concerning Operation Fast 

 Another ATF report described the seizure of firearms on the 

Tohono O’odham Indian Reservation, without mentioning Operation Fast and 

Furious by name. 

 

218 The DOMEX also provided quarterly reports to the Executive Office of OCDETF. We 

determined that these reports did not describe “gun walking” tactics or problems in Operation 

Fast and Furious.

219 Two entries were identical and provided: “Tucson Gun Trafficking (D. Ariz.): On 

October 27, the Organized Crime and Gang Section (OCGS) plans to indict eight individuals 

under seal relating to the trafficking of hundreds of firearms to Mexico. The sealing will likely 

last until another investigation, Phoenix-based ‘Operation Fast and Furious,’ is ready for 

takedown.” The third entry provided: “Tucson Gun Trafficking (D. Ariz) On October 27, the 

Organized Crime and Gang Section (OCGS) indicted eight individuals under seal relating to the 

trafficking of 228 firearms to Mexico. The sealing will likely last until another investigation, 

Phoenix-based ‘Operation Fast and Furious,’ is ready for takedown.”
286 

and Furious or of his staff highlighting such information for his review.220

According to Attorney General Holder, the Office of the Attorney General 

typically receives over a hundred pages of “weekly reports” each week from the 

various divisions and components within DOJ. These reports are reviewed by 

staff in the Offices of the Attorney General and Deputy Attorney General. Kevin 

Ohlson, former Chief of Staff to Attorney General Holder during 2009 and 

2010, told us that the weekly reports describe significant developments or 

events within the Department but for security reasons they did not contain 

sensitive or urgent information. 

 We 

asked Grindler about the NDIC reports that referred to the acquisition of 1,500 

firearms. He told us that he did not believe his staff should have highlighted 

the 1,500 firearm figure to him unless they believed it indicated a problem. He 

also said that he personally did not think that the 1,500 figure by itself 

suggested a problem in the investigation because he was aware that the 

number of firearms going from the United States to Mexico was “dramatically 

high” in 2009 and 2010.

The Attorney General also told us that he had recently reviewed the 

weekly reports that refer to Operation Fast and Furious and said he believed 

that he did not see them at the time that his office first received them. He said 

that his staff reviews the weekly reports and highlights information for him that 

they believe warrants his attention. He stated that he did not recall his staff 

bringing anything to his attention from the reports regarding Operation Fast 

and Furious and he said he believed that they made the appropriate 

determination because the reports were unremarkable. 

We also asked the Attorney General about the NDIC reports that referred 

to the acquisition of 1,500 firearms. He said that the amount of firearms the 

straw purchasers had acquired was not insignificant, but without identification 

of the problematic tactics that were used in Operation Fast and Furious, the 

reports did not warrant his attention. 

C. The End of the “Investigative Phase” in Operation Fast and 

Furious and Delay of the Indictment 

During the summer of 2010 the attention of ATF’s agents and their 

supervisors, including those at Headquarters, turned to obtaining an 

indictment. As noted above, the Phoenix Field Division’s “exit strategy” for 

 

220 After reviewing a draft of this report, Grindler stated that the seizures described in 

ATF weekly reports, and an ATF e-mail he received on August 20, 2010 that reported on 

weapons seizures by a Gunrunner Impact Team in Phoenix, corroborated his understanding 

“that ATF was focused on interdicting and seizing weapons in the United States before they 

reached Mexico.”
287 

Operation Fast and Furious that was drafted on April 27 had established a goal 

of 30 to 90 days, or no later than approximately late July 2010, to conclude the 

case and initiate arrests. However, as discussed below, the first arrest in 

Operation Fast and Furious did not occur until December 15, the day after 

Agent Terry was shot, and an indictment was not returned until January 19, 

2011. 

Melson, Hoover, Chait, and McMahon told the OIG that by late summer 

2010 they became increasingly frustrated with the failure of the U.S. Attorney’s 

Office to bring an indictment in Operation Fast and Furious. ATF e-mails 

beginning in July 2010 show multiple inquiries from its senior leadership 

about the status of the indictment. For example, on July 14, 2010 Melson emailed Chait and Hoover and asked: “When will we be taking Fast and Furious 

down? An awful lot of guns seem to be flowing south.”221

Newell told the OIG that by October 2010 “Headquarters [was] calling me 

nonstop” because the case had not been indicted. According to McMahon, the 

U.S. Attorney’s Office was giving Newell “excuse after excuse” for why the 

indictment had to be delayed. 

 Melson told the OIG 

that by the end of July 2010 he understood that apart from arrests, Operation 

Fast and Furious was at its conclusion and he began asking about the 

indictment “pretty frequently.” Melson told us that he asked the Office of Field 

Operations representatives about the status of the case at weekly staff 

meetings and that the timing of the indictment kept moving from month to 

month. 

When we asked Melson what steps he took to address the delays in the 

indictment, he said that because the delays in bringing the indictment were a 

“significant frustration” to him, he probably raised his concerns about the U.S. 

Attorney’s Office with Grindler. However, Melson also said that he did not have 

a specific recollection of raising the issue with Grindler, and Grindler said he 

did not recall discussions about Operation Fast and Furious other than at the 

March 12, 2010, briefing that ATF provided him. Hoover said he did not recall 

discussing with Melson the need to inform Grindler about delays with the case. 

However, Hoover told us that he believed he raised the issue of the delay in the 

indictments in late summer or early fall 2010 to Ed Siskel, the former Associate 

Deputy Attorney General who handled the ATF portfolio during 2010. Siskel 

stated that he did not recall discussions with Melson or Hoover concerning 

Operation Fast and Furious other than at Grindler’s briefing, including any 

discussions about delays in the case. We found no e-mails or other evidence 

showing that Melson or Hoover raised the issue of delays caused by the U.S. 

 

221 As described in greater detail in Chapter Four, by mid-July 2010, over 1,600 

firearms had been purchased by straw buyers while Operation Fast and Furious was ongoing.
288 

Attorney’s Office in Operation Fast and Furious with either Grindler or staff in 

the Office of the Deputy Attorney General. 

Melson told us that he told his staff to ask U.S. Attorney Dennis Burke 

whether ATF could be of assistance and he offered to send ATF attorneys to 

work as Special AUSAs on the case. Melson also told us that he did not 

contact Burke directly about his concerns “because that is going around your 

supervisors,” and he communicated through Chait to Newell to complain to the 

U.S. Attorney’s Office.222

In early November 2010, Melson brought his concerns over the delays 

with the indictment to the attention of DAAG Weinstein. In an e-mail to the 

Criminal Division’s Deputy Chief of Staff on November 8, Weinstein wrote: 

 Burke told us, however, that other than the corpus 

delecti issue, he never heard of complaints from ATF about the U.S. Attorney’s 

Office’s handling of gun trafficking investigations and no one ever complained 

to him about the timing of the indictment. According to Burke, Newell was 

“always very positive” about the case. 

Ken [Melson] is also frustrated by the pace of the USAO in AZ in 

bringing charges in the “Fast and Furious” gun-trafficking case 

(multiple wires, huge # of guns) – the AUSA has apparently told the 

agents that it will take a couple of months to draft the indictment; 

it appears that the AUSA on the case is not the fastest worker, and 

Laura Gwinn, our prosecutor on the case, is going to try to push 

things along, including by offering to draft the indictment. 

Weinstein told the OIG that his reference to Gwinn as “our prosecutor on 

the case” was made in error. Because the case belonged to the U.S. Attorney’s 

Office, Weinstein said, he did not understand why Melson brought the issue of 

delays to the Criminal Division instead of calling the U.S. Attorney. Weinstein 

said he could not recall any meetings or follow-up on the issue, and we found 

no evidence that Weinstein raised the issue directly with AAG Breuer or the 

U.S. Attorney’s Office in Arizona. 

 

222 According to Newell, in September 2010, while in Phoenix for a press conference on 

the GRIT operation, Melson asked Burke about the date of the Operation Fast and Furious 

indictment. Melson told the OIG that he did remember asking Burke during his trip when the 

indictment would be ready, but said that he would not have tried to “push” Burke over the 

matter. After reviewing a draft of this report, Melson told the OIG no deadlines for the 

indictment had passed by the time of his visit and that ATF was expecting the indictment in 

September or October. However, Newell told the OIG that he asked Melson to ask Burke about 

the indictment and that when Melson did so, Burke, according to Newell, “put it off” until 

October due to workload considerations.
289 

We found no evidence that Melson’s concerns had any impact on the 

timing of the indictment in Operation Fast and Furious and, instead, the next 

significant development in the case was Agent Terry’s tragic death and the 

discovery of Operation Fast and Furious weapons at the murder scene. 

V. Response to Agent Terry’s Murder 

On the evening of December 14, 2010, CBP Agent Brian Terry was shot 

near Rio Rico, Arizona, while conducting border patrol operations. He was 

transported for emergency medical services but succumbed to his injuries. 

Our investigation determined that Burke received an e-mail from the 

Department of Homeland Security at approximately 3:30 a.m. on December 15, 

2010, notifying him of an agent’s murder. The Attorney General and Acting 

Deputy Attorney General received notification of the murder at approximately 

10:00 a.m. the same day from e-mails that DOJ staff forwarded to them from 

Burke. 

At approximately 11:00 that morning, Holder e-mailed Grindler, 

Wilkinson, and three other staff members to ask whether more details about 

the shooting were available. Wilkinson informed Holder that he would “look 

into it,” and a few minutes later sent an e-mail to Burke asking him to “provide 

any additional details as they become available to you.” 

Holder told the OIG that he did not recall receiving more information 

other than the basic fact of the shooting, though he said it was possible he may 

have had a conversation with Wilkinson about it. Wilkinson told us that he did 

not recall having any such conversations with Holder. We found that 

Wilkinson forwarded to Holder during the afternoon of December 15 three emails from the Arizona U.S. Attorney’s Office that furnished additional 

information about the shooting and Agent Terry. These e-mails provided 

further details about the circumstances surrounding the firefight that resulted 

in Agent Terry’s death and law enforcement’s efforts to find and arrest the 

suspects. 

Information soon became available that linked two weapons at the Terry 

murder scene to Operation Fast and Furious.223

 

223 We discuss the link between the weapons purchased by Jaime Avila and those 

found at the Terry murder scene and Operation Fast and Furious in greater detail in Chapter 

Four.

 Burke learned of this 

connection on the evening of December 15 and e-mailed Wilkinson, stating 

“[t]he 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-47s purchased at 
290 

a Phoenix gun store.” Wilkinson told us that he did not recall advising the 

Attorney General of this information, and we found no evidence that he did so. 

McMahon was notified by Newell of the connection on the night of 

December 15 by e-mail, which McMahon then forwarded to Chait. Hoover emailed Melson at approximately 4:00 a.m. on December 16 to advise Melson 

that Hoover had received a call from Chait the prior evening informing Hoover 

that two weapons found at the scene of the shooting were traced back to 

Operation Fast and Furious. Later on December 16, McMahon sent to Hoover 

and Chait two briefing papers that they had requested. The first was a 

December 3 briefing paper. The second was a supplemental briefing paper 

created on December 16 and that focused on Avila specifically. 

Grindler was informed about the link on December 17, 2010, when 

Senior Counsel to the Deputy Attorney General Brad Smith sent an e-mail to 

Grindler and three members of his staff that furnished updates on several ATF 

issues and informed him of the recovery of two AK-47 firearms from the Terry 

murder scene that had been traced to Avila, a straw purchaser in Operation 

Fast and Furious, and of Avila’s subsequent arrest. Smith received this 

information on December 16 from Hoover, along with the two memoranda that 

Hoover had received from McMahon earlier that same day. Smith prefaced the 

e-mail to Grindler, “We do not believe anything requires immediate action from 

our office, but we wanted to make sure you were aware of the issues.” After 

first describing ATF’s progress on requiring FFLs to report sales of multiple 

long guns to a single purchaser through a “demand letter,” Smith wrote: 

Second, you may recall that a CBP border patrol agent was killed 

on Tuesday in a firefight in Arizona involving [sic] along the 

Mexican border. Two of the weapons recovered from the scene 

(AK-47 variants) have been linked to Jaime Avila, Jr., a “straw 

firearms purchaser” that ATF and USAO for Arizona have been 

investigating since November 2009 as part of its larger “Fast and 

Furious” operation. (It is not clear if the shots that killed the CBP 

agent came from the weapons linked to Avila.) ATF agents, 

assisted by ICE, USMS, and Phoenix police, arrested Avila on 

Wednesday for falsification of ATF forms, and in a subsequent 

interview, he admitted to serving as a straw purchaser. The 

attached background papers, which ATF prepared, provide 

additional details on the case, if you are interested. 

Smith attached to his e-mail to Grindler the two ATF briefing papers on 

Operation Fast and Furious that Hoover had sent to him. The first was the 

December 3 briefing paper which provided background about the investigation, 

including the fact that from October 2009 to October 2010 the agents had 

documented purchases in excess of 1,900 firearms for approximately $1.25 

million in cash. It also noted that firearms purchasing and trafficking activity 
291 

by the organization targeted in Operation Fast and Furious had “subsided 

significantly” since October 2010 “due to several factors not the least of which 

are the many proactive measures taken by the agents assigned to Phoenix 

Group VII.” 224

Grindler told the OIG that he did not recall taking any action with 

respect to the Terry murder, and did not recall having conversations with his 

staff or the Attorney General after receiving the e-mail from Smith. He said 

that by the time he received Smith’s e-mail he was confident that the 

investigation of Agent Terry’s murder was being taken “extraordinarily 

seriously,” the FBI was involved, an AUSA had been assigned to the matter, 

and Avila had been arrested.

 Finally, it indicated that the U.S. Attorney’s Office was planning 

to indict 42 individuals in January 2011. The other briefing paper was the 

December 16 memorandum which contained information about Avila’s firearms 

purchases, including the fact that he was known to have purchased 52 

firearms since November 2009 through mid-June 2010, and that these 

firearms included the 2 AK-47 variants Avila had purchased on January 16, 

2010, that were found at Agent Terry’s murder scene. The briefing paper also 

indicated that when confronted by ATF agents on December 15, 2010, following 

the shooting of Agent Terry, Avila admitted to being a straw purchaser and was 

arrested. 

225 Grindler told us that he “absolutely thought” 

that part of the FBI investigation would address how weapons from ATF’s case 

made it to the Terry shooting scene, and he believed he would be receiving 

reports on the case. He said that he did not recall the FBI providing him with 

any updates on the case while he was the Acting Deputy Attorney General.226

 

224 After reviewing a draft of this report, Grindler and other Department officials 

pointed out in comments to the OIG that ATF consistently described Operation Fast and 

Furious as a successful operation that prevented firearms from reaching Mexico, including in 

the briefing papers attached to Smith’s December 17 e-mail. Those papers provide that ATF 

agents had been able to “identify a large number of additional co-conspirators and disrupt the 

illegal activities of this firearms trafficking organization by seizing numerous firearms and 

narcotics” and that “throughout the course of the investigation numerous seizures were made 

by other State, local and Federal law enforcement agencies at the direction of the Phoenix 

Group VII in order to ensure the seized firearms did not reach their intended destination . . . .” 

According to Grindler, “[t]his account suggests a well-functioning operation, not the use of 

flawed tactics that should have raised concerns.”

225 After reviewing a draft of this report, Grindler commented that “the information we 

received indicated that the murder investigation was proceeding expeditiously, that a number 

of people had already been arrested and that significant personnel from the FBI, ATF, United 

States Attorney’s Office and DHS (CBP) were dedicated to investigating Agent Terry’s murder 

and that updates would be provided by the USAO.”

226 In his submission to the OIG after reviewing the draft report, Grindler noted that no 

one in the Department, including at ATF, at the U.S. Attorney’s Office, and the five individuals 

in the Department’s senior leadership who knew about the issue, raised any concerns with him 

(Cont’d.)
292 

Approximately two weeks after Agent Terry’s death, James Cole was 

appointed by President Obama to be Deputy Attorney General, and Grindler 

moved from his position as Acting Deputy Attorney General to the position of 

Chief of Staff to the Attorney General.227

Smith told us that at the time he believed that the situation was “under 

control” and that ATF and the Arizona U.S. Attorney’s Office were preparing to 

indict the case. He said that based on his review of the briefing papers 

attached to his December 17 e-mail it appeared that there was “a coordinated 

plan on when to target and bring down particular individuals” and as a result 

he did not have concerns that additional steps needed to be taken. Smith said 

he did not recall having any conversations with Grindler or other Department 

officials about the information concerning Operation Fast and Furious 

contained in the December 17 e-mail. 

Attorney General Holder told the OIG that he did not learn of the link 

between the firearms recovered at the Terry murder scene and Operation Fast 

and Furious until 2011. Holder stated that he probably learned about the link 

in February 2011, after he received Senator Grassley’s January 27 and 31, 

2011, letters and first learned of Operation Fast and Furious. We found no 

evidence that the Attorney General was told by anyone at the Department, or 

by anyone at ATF, about the connection prior to Senator Grassley’s letter on 

January 27, 2011. 

Holder told us that he would not have expected to be informed about the 

link between the weapons found at Terry’s murder scene and Operation Fast 

and Furious absent some knowledge that “inappropriate tactics” were used in 

the investigation. Kevin Ohlson, Holder’s Chief of Staff at the time of the 

December shooting, told us that he could not recall being informed about the 

link but believed that the Attorney General should have been informed about it 

because it was a significant development in the murder investigation. 

Holder also stated he did not recall taking action in response to Agent 

Terry’s murder other than to request more information about the 

circumstances surrounding the shooting and to consider attending Agent 

Terry’s funeral. Holder stated that he was not informed of the information 

contained in Smith’s e-mail to Grindler, and he said if he had known he would 

have expected the U.S. Attorney’s Office and agents to be asking questions 

about the connection between Operation Fast and Furious and the firearms 

found at Agent Terry’s murder scene. Holder stated that he would think that 

 

in December 2010 following Agent Terry’s murder about the linkage between the weapons 

found at the shooting scene and Operation Fast and Furious.

227 Cole was confirmed by the Senate as Deputy Attorney General on June 28, 2011.
293 

the Office of the Deputy Attorney General also would be asking questions about 

the investigation. He stated, “I think that people would have been looking at 

this in the Deputy's Office, again my assumption, with that thought process, 

that would probably have never entered their minds that those guns might 

have gotten on the scene, might have been involved in the death of Brian Terry 

as a result of an inadequate underlying . . . surveillance.”228

We found no evidence that Holder or Grindler asked specific questions 

about the circumstances surrounding Agent Terry’s murder until February 10, 

2011. On February 9, 2011, Senator Grassley sent Attorney General Holder a 

letter that, like his January 27 letter, raised questions about the firearms 

found at the Terry murder scene: 

ATF agents told my staff that the agency allowed the sale of assault 

rifles to known and suspected straw purchasers for an illegal 

trafficking ring near the southwest border. Authorities allegedly 

recovered two of those weapons at the scene of a firefight near the 

southwest border on December 14, 2010. Customs and Border 

Protection Agent Brian Terry lost his life in that firefight and may 

have been killed with one of those two rifles. That is why I 

requested nearly two weeks ago that the ATF brief my staff as soon 

as possible. 

Late on February 9, Wilkinson e-mailed Senator Grassley’s letter to 

Grindler. The next morning Grindler responded to Wilkinson, “We need to dig 

into this situation. ODAG needs to be pushing ATF on what took place here. I 

would like to know more about it. Let’s discuss it at the 8:45 meeting.”229

Later that day, Grindler wrote to Monaco and Wilkinson regarding the 

letter from Sen. Grassley: 

Two issues the AG is particularly concerned with are (1) the 

statement that at least one gun dealer wanted to stop participating 

in sales like those to Avila sometime around October 2009 with 

ATF allegedly encouraging the dealer to continue to sell to 

suspected traffickers; and (2) the assertion that there has been no 

contact with the victim’s family. The AG agrees that the family 

deserves answers. 

 

228 The evidence shows that ATF did not have Avila’s January 16, 2010, purchase 

under surveillance, and learned about it on January 19, 2010. However, ATF by that date had 

identified Avila as a suspected straw purchaser and knew about his affiliation with Patino.

229 After reviewing a draft of this report, Grindler informed the OIG that his response to 

Senator’s Grassley letter “underscore[s] how I reacted when made aware of credible allegations 

of potential misconduct.”
294 

Following a briefing by the Department for Sen. Grassley on February 10, 

2011, and an additional letter to the Department from Sen. Grassley on 

February 16, 2011, Grindler wrote to Breuer, Weinstein, and Criminal Division 

Chief of Staff and Principal Deputy Assistant Attorney General Mythili Raman 

with two additional questions from the Attorney General: 

So ATF did NOT persuade a reluctant dealer to participate – 

bottom line? 

Do we have info on whether a gun sold in the operation was used 

in the shooting? 

We discuss in detail in Chapter Six the response that Grindler received to 

this inquiry. 

As we also discuss in Chapter Six, Attorney General Holder and other 

senior Department leaders in the Office of the Deputy Attorney General, 

including Grindler, were not told about ATF’s use of flawed tactics in Operation 

Wide Receiver until several months after Agent Terry’s shooting. Holder told us 

that knowledge of Operation Wide Receiver at the time of Agent Terry’s death 

“certainly would raise . . . your sensitivity. It happened once before.” He stated 

that “if you had that knowledge and if you remembered it at the time, let’s see 

with an agent dead here and we got some guns connected to an investigation 

on Wide Receiver, what happened there . . . , you might start asking questions 

like that.” 

Breuer said that he did not recall what actions he took after learning of 

Agent Terry’s death and did not believe he had any conversations with Burke, 

the Office of the Deputy Attorney General, or the Office of the Attorney General 

about Agent Terry’s shooting. Breuer stated that he believed that the Arizona 

U.S. Attorney’s Office was responsible for prosecution of the persons 

responsible for Terry’s murder. Breuer indicated that he was not made aware 

at the time of the connection between the guns found at the site of the murder 

and Operation Fast and Furious, and we found no evidence to the contrary. 

We also found no evidence that anyone at the Department was in contact 

with senior leadership at the Department of Homeland Security following Agent 

Terry’s death.230

 

230 As an agent with the CBP, Agent Terry worked for the Department of Homeland 

Security, not the Justice Department. Melson told us that he notified the head of CBP of the 

link between the weapons found at the Terry murder scene and Operation Fast and Furious 

when he learned of the connection.

 This was true even after the Department learned of the 

connection between the Operation Fast and Furious investigation and the 

firearms found at the scene of Agent Terry’s murder. 
295 

Finally, shortly after Agent Terry was shot, information appeared on the 

internet alleging that ASAC George Gillett approved more than 500 firearms 

being “walked” to Mexico in ATF cases in Phoenix and Tucson and that one of 

the firearms was rumored to have been used in the killing of a Border Patrol 

agent in Nogales, Arizona. Melson told the OIG that he was assured by four or 

five supervisors that the “gun walking” alleged on the internet did not happen. 

In addition, Melson sought ATF Chief Counsel Stephen Rubenstein’s views on 

whether the public posting of the information violated ATF policies. 

Rubenstein informed Melson by e-mail on January 5, 2011, that such a 

disclosure potentially would violate ATF policies concerning the disclosure of 

information to the public. Melson thereafter informed Rubenstein that he 

would refer the matter to Internal Affairs. We describe in Chapter 6 other 

information that appeared on the internet following Agent Terry’s murder and 

before Sen. Grassley’s January 27, 2011, letter to Melson that concerned ATF 

allowing guns to “walk.” 

VI. The January 25, 2011, Press Conference Announcing the Avila 

Indictment 

On January 25, 2011, the Arizona U.S. Attorney’s Office issued a press 

release announcing indictments in 5 cases against 34 defendants accused of 

illegally trafficking firearms from the United States to Mexico, including 20 

defendants linked to Operation Fast and Furious. Burke and Newell held a 

press conference the same day about the indictments. 

Attorney General Holder did not attend the press conference, although 

according to Burke, he learned from Newell that ATF made some “overtures” to 

have him appear there. On December 14, 2010, Burke e-mailed Cunningham 

that the “AG’s office is now expressing interest in the AG coming out” for the 

press conference. On December 21, Burke sent an e-mail to the Attorney 

General’s Deputy Chief of Staff, Monty Wilkinson, stating that he would not 

recommend that the Attorney General announce the case and that he could 

explain his views in detail at Wilkinson’s convenience. According to Burke, his 

opposition to Holder’s attending the press conference was not related to the 

case but reflected Burke’s assessment that he would have limited opportunities 

to request the Attorney General’s presence in Arizona. Burke told us he 

discussed the issue with Wilkinson and told him that “if . . . I’m going to get 

one shot to have an AG come out to Arizona, this is not what I would pick.” 

Burke said that he recommended to Wilkinson that Holder visit Arizona to tour 

the border or to visit Indian country. 

Wilkinson told the OIG that he did not recall discussing the issue with 

Burke or with the Attorney General, and Attorney General Holder stated that 

the issue was never raised with him. We found no evidence to suggest 

otherwise. 
296 

AAG Breuer did not attend the press conference and told the OIG that he 

was never asked to participate in it. However, Criminal Division e-mails show 

that Trusty and Weinstein considered having a Criminal Division representative 

attend the press conference. On January 24, 2011, Weinstein e-mailed Gang 

Unit staff to inquire whether a press conference would be held and whether 

Criminal Division personnel would attend. Trusty responded that “we decided 

not to scramble out to this press conference,” but that if Weinstein felt strongly 

about the issue he was willing to attend it. According to Weinstein, the 

Criminal Division did not participate in the press conference because its role 

was limited to only one of the five cases (the Flores case) that were indicted. He 

said that because the Flores case was an “add-on” to the press conference, and 

the Criminal Division was not involved in the main case announced at the 

conference, it would have been unusual for Division personnel to attend the 

conference. 

Weinstein also asked in his January 24 e-mail whether the case that was 

being unsealed with Operation Fast and Furious (Flores) was one that the 

Criminal Division inherited “after a lot of guns had been permitted to walk . . 

.?” Trusty responded that there was “no information suggesting that law 

enforcement let guns walk . . . .” We asked Weinstein whether any concerns 

about Operation Fast and Furious or the Flores case caused him not to send a 

Criminal Division representative to the press conference. He responded “No,” 

and stated that at that point in time there was no reason for the Criminal 

Division to be “keeping its distance” from Operation Fast and Furious, and that 

“if we knew about the gun walking, we would have tried to stop it, not join it” 

(i.e., attempted to jointly prosecute the case with the Arizona U.S. Attorney’s 

Office). 

The Criminal Division did, however, contribute a statement from Breuer 

that was included in the U.S. Attorney’s Office press release and provided as 

follows: 

These indictments are important steps in the Justice Department’s 

effort to curb gun trafficking along the Southwest Border,” said 

Assistant Attorney General Lanny A. Breuer of the Criminal 

Division. “The Criminal Division is working hard with its partners 

in the U.S. Attorneys’ Offices and colleagues in Mexico to find and 

prosecute those who seek to transport weapons illegally across our 

borders. 

The press release also stated that the five indicted cases “are being prosecuted 

by the United States Attorney’s Office for Arizona and by Trial Attorney Laura 

Gwinn of the Department of Justice’s Criminal Division’s Gang Unit.” Breuer 

said he did not recall whether he reviewed the press release before it was 

issued, but said if he did “it would have been a pretty limited involvement.” 
297 

VII. OIG Analysis 

We found no evidence that Attorney General Holder was informed about 

Operation Fast and Furious, or learned about the tactics employed by ATF in 

the investigation, prior to January 31, 2011. We found it troubling that a case 

of this magnitude and that affected Mexico so significantly was not directly 

briefed to the Attorney General. We would usually expect such information to 

come to the Attorney General through the Office of the Deputy Attorney 

General. However, as discussed below, neither ATF nor the U.S. Attorney’s 

Office sufficiently advised the Office of the Deputy Attorney General about the 

investigation itself or of any operational concerns regarding the investigation. 

We also concluded that although Holder was notified immediately of 

Agent Terry’s shooting and death, he was not told in December 2010 about the 

connection between the firearms found at the scene of the shooting and 

Operation Fast and Furious. We determined that Holder did not learn of that 

fact until sometime in 2011, after he received Sen. Grassley’s January 27 

letter. Both Acting Deputy Attorney General Grindler and Counsel to the 

Attorney General and Deputy Chief of Staff Wilkinson were aware of this 

significant and troubling information by December 17, 2010, but did not 

believe the information was sufficiently important to alert the Attorney General 

about it or to make any further inquiry regarding this development. 

In addition, we found that Acting Deputy Attorney General Grindler was 

briefed on Operation Fast and Furious in March 2010 by Acting Director 

Melson and Deputy Director Hoover. However, we found that ATF’s leadership 

provided him with a relatively brief high-level overview that highlighted the case 

as a significant investigation but did not identify any questions or concerns 

about it. Moreover, despite the fact that Hoover developed significant concerns 

about the case within weeks of this briefing, ATF leadership provided no 

further briefings to Grindler about Operation Fast and Furious in 2010. 

We determined that several lawyers in the Department’s Criminal 

Division had some knowledge about Operation Fast and Furious during 2010. 

The most senior of these lawyers, DAAG Weinstein, obtained information about 

the case during that time period but did not recognize any of the “red flags” 

which indicated that “gun walking” might have been occurring. We found that 

given his level of knowledge about the investigation and his familiarity with the 

“gun walking” tactics employed by ATF in Operation Wide Receiver, Weinstein 

was the most senior person in the Department in 2010 who was in a position 

to identify the similarity between the inappropriate tactics used in Operations 

Wide Receiver and Fast and Furious. 

We also found that Assistant Attorney General Breuer, who learned in 

April 2010 about the “gun walking” tactics used in Operation Wide Receiver, 

did not learn about Operation Fast and Furious and the allegations about the 
298 

use of improper investigative tactics in that investigation until after Sen. 

Grassley’s January 27 letter. His lack of knowledge about Operation Fast and 

Furious in 2010 was primarily due, we found, to Weinstein’s failure to inform 

him about the case. 

We further determined that ATF Headquarters’ oversight of Operation 

Fast and Furious was seriously deficient. Deputy Director Hoover, Assistant 

Director Chait, and Deputy Assistant Director McMahon all failed to adequately 

respond to indications and warnings early in the investigation that heightened 

scrutiny at the Headquarters level was needed to ensure public safety. Acting 

Director Melson should have recognized by no later than mid-March 2010, 

when he both received and delivered briefings on the investigation, that ATF 

staff were likely mismanaging the case. We believe that by the first months of 

2010 ATF Headquarters’ deference to the Phoenix Field Division imperiled the 

agency’s obligation to protect the public. ATF’s senior leadership, including 

Acting Director Melson, should have recognized that its agents were failing to 

take adequate enforcement action as straw purchasing activity continued at an 

alarming pace, and should have instituted measures to promptly conclude the 

case, even if over the objections of the U.S. Attorney’s Office. We determined 

that ATF’s leadership failed to seek timely closure of the investigation, even 

after Hoover recognized the need to conclude the investigative phase of 

Operation Fast and Furious. Although we found no evidence that ATF 

Headquarters’ executives had improper motives or were seeking through their 

work on Operation Fast and Furious anything other than to dismantle a 

dangerous firearms trafficking organization, our investigation found that their 

oversight of the investigation was seriously deficient. 

Finally, we believe that Melson and Hoover failed to appropriately 

respond to the troubling information they learned in December 2010 about the 

connection between the two guns found at the scene of Agent Terry’s murder 

and Operation Fast and Furious. While they promptly requested information 

following the discovery, and promptly notified the Office of the Deputy Attorney 

General about the information, they failed to initiate a review of the matter. 

Below we describe these problems and other issues related to ATF and 

DOJ Headquarters’ role in Operation Fast and Furious. 

A. Information Provided to the Offices of the Attorney General 

and the Deputy Attorney General 

Our investigation examined whether staff in the Office of the Attorney 

General, including Attorney General Holder, received information concerning 

Operation Fast and Furious prior to Sen. Grassley’s letter dated January 27, 

2011. 
299 

1. Attorney General Holder 

Attorney General Holder told the OIG that he did not hear of Operation 

Fast and Furious until late January or early February 2011, and was not 

aware of concerns with the tactics in the investigation until February. He said 

that he visited Sen. Grassley in the Senator’s office on January 31, 2011, and 

Sen. Grassley handed him two letters that referenced Project Gunrunner. 

Holder told us that he became familiar with the phrase “Fast and Furious” after 

visiting with Sen. Grassley. 

We found no evidence that Department or ATF staff informed Holder 

about Operation Fast and Furious prior to 2011. Melson stated that he did not 

inform Holder about the investigation, and Burke said he did not recall doing 

so.231

Our investigation did not identify evidence that contradicted Holder’s 

statements to us regarding his knowledge of Operation Fast and Furious and 

the use of “gun walking” tactics in that investigation. As we describe below, we 

identified information regarding Operation Fast and Furious that reached the 

Office of the Attorney General in 2010 but not Attorney General Holder himself. 

However, we found no evidence that this information included the 

inappropriate tactics at issue in Operation Fast and Furious. 

 Melson also stated that the Department was not involved in formulating 

any of the tactical decisions in the investigation. Holder said that Melson did 

not identify to him any problems about Operation Fast and Furious in 2009 

and 2010. 

 

231 Holder visited Arizona on March 24 and 25, 2010, to attend a U.S. Attorney’s 

National Conference, a Financial Fraud Enforcement Task Force meeting, and a gathering of 

tribal leaders. In preparation for Holder’s visit, Burke received a 1-page write-up about 

Operation Fast and Furious that Hurley drafted. The Arizona U.S. Attorney’s Office also sent a 

list of significant cases to the Executive Office for U.S. Attorneys on March 19, 2010, in 

anticipation of Holder’s visit. The list did not include Operation Fast and Furious. Burke 

stated to Congressional investigators that he recalled attending meetings with Holder, 

including a 10-minute meeting with Holder and Wilkinson to discuss the work of Burke’s office 

and other meetings that Holder was going to attend during his visit to Arizona. Burke said that 

he had no recollection of discussing Operation Fast and Furious with Holder, though he said 

he may have mentioned to him that “we have a gun trafficking case that’s a T-3.” He stated 

that if he did make such a comment, “that would have literally been the extent of it” due to 

time limitations. The First Assistant United States Attorney also attended some meetings with 

Holder and Burke. She stated that she did not recall hearing any mention of Operation Fast 

and Furious.
300 

2. Weekly Reports to the Offices of the Attorney General 

and Deputy Attorney General 

We found that the Offices of the Attorney General and Deputy Attorney 

General received 11 weekly reports in 2010 from ATF, DOJ’s Criminal Division, 

and the National Drug Intelligence Center (NDIC) that referred to Operation 

Fast and Furious by name. For example, six of seven NDIC reports included 

among several other entries a summary of the support that NDIC had provided 

Operation Fast and Furious. The summary, which was identical in six of the 

reports except for certain dates, stated that Celis-Acosta and the straw 

purchasers in Operation Fast and Furious were responsible for trafficking 

1,500 firearms to Mexican drug cartels.232

We found no evidence that these weekly reports were forwarded to the 

Attorney General or Deputy Attorney General. Our examination of the entries 

concerning Operation Fast and Furious in the weekly reports above revealed 

that they did not refer to agents’ failure to interdict firearms or include 

information that otherwise provided notice of the improper strategy and tactics 

that ATF agents were using in the investigation. While the NDIC reports’ 

reference to 1,500 firearms that had been trafficked to Mexican drug cartels 

was important, the reports did not state or suggest that the ATF had advance 

knowledge of the firearms purchases or otherwise knowingly allowed the guns 

to cross the border. 

 Attorney General Holder told the 

OIG that he did not believe that he reviewed these reports at the time that his 

office received them and that his staff did not bring them to his attention. 

Former Acting Deputy Attorney General Grindler stated that he had no 

recollection of having reviewed any weekly report concerning Operation Fast 

and Furious or of his staff highlighting such information for his review. 

 

232 An example of one of the NDIC entries appears below:

(LOU-LES) Document and Media Exploitation Support to the Organized 

Crime Drug Enforcement Task Force: From July 6 through July 9, the 

National Drug Intelligence Center Document and Media Exploitation Team at the 

Phoenix Organized Crime Drug Enforcement Task Force (OCDETF) Strike Force

will support 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 Furious. This investigation, initiated in September 2009 in 

conjunction with the Drug Enforcement Administration, Immigration and 

Customs Enforcement, and the Phoenix Police Department, involves a Phoenixbased firearms trafficking ring headed by Manuel Celis-Acosta. Celis-Acosta and 

25 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.
301 

3. Acting Deputy Attorney General Grindler 

Unlike Attorney General Holder, Acting Deputy Attorney General Grindler 

received an ATF briefing from Melson and Hoover on Operation Fast and 

Furious in March 2010, while investigative activity in the case was ongoing. 

We found, however, that the briefing failed to alert Grindler to problems in the 

investigation. In addition, despite the significance of the investigation and the 

concerns about it that Hoover said he developed within weeks of this briefing, 

we found no evidence that ATF provided any updates or briefings to Grindler in 

any future meetings. 

The March 12 briefing was Grindler’s first monthly meeting with ATF as 

Acting Deputy Attorney General. We found that the discussion of Operation 

Fast and Furious at the meeting was relatively brief. The report on the 

investigation was placed in the middle of the agenda – listed as fourth of seven 

items – for what was a 45- to 60-minute briefing. As a result, we found that 

the briefing on Operation Fast and Furious was likely only 5 to 10 minutes, 

and the participants told us that it was only a high-level overview of the 

investigation. 

Melson and Hoover presented the case to Grindler as a significant case 

and did not identify any questions or concerns for him about the investigation. 

The briefing documents consisted of various charts about Operation Fast and 

Furious that showed significant firearms purchases and recoveries in Mexico. 

The documents revealed that as of February 27, 2010, 1,026 firearms had been 

purchased with over $600,000 cash by 27 straw purchasers, and that firearms 

had been traced back to the case from 10 different recovery sites located in the 

United States and Mexico. Grindler’s notes reflect that the briefing also 

included discussion of the tracking of certain weapons. Thus, while we would 

have expected Grindler or his staff to have asked probing questions about the 

investigation given the number of firearms and amount of cash involved, we 

believe that the limited information presented at the briefing was not sufficient 

to put him on notice of ATF’s failure to interdict firearms that it could have 

legally seized. Indeed, Grindler, Melson, and Hoover all told the OIG that the 

briefing did not include a detailed discussion of the case strategy or tactics, 

and did not include any mention of “gun walking.” 

Grindler told us that he understood from the briefing that ATF was 

building its case by tracing weapons seized or recovered in Mexico back to their 

purchases in the United States. He stated that the volume of firearms involved 

in the investigation did not signal to him that there were problems in the case 

given what he knew about the high volume of firearms seized in Mexico and 

traces performed on those firearms in 2009. 

We concluded that by the time they presented this briefing to Grindler, 

Melson and Hoover had received sufficient information about the scope and 
302 

significance of Operation Fast and Furious that they themselves should have 

been asking probing questions about the strategy in the case and whether 

efforts were being made to minimize the risk to public safety. We concluded 

that they failed to do so. As a result, they provided incomplete information 

about Operation Fast and Furious to the Acting Deputy Attorney General. 

Moreover, even as they developed increasing concerns about the investigation 

in 2010, and despite its significant impact on Mexico, Hoover and Melson failed 

to provide any updated briefings to Grindler. 

4. Information Provided to the Department Following Agent 

Terry’s Shooting 

While we found that the Offices of the Attorney General and the Deputy 

Attorney General were not presented with sufficient information by ATF prior to 

Agent Terry’s shooting on December 14, 2010, to alert them to the serious 

problems in Operation Fast and Furious, we found that neither office took 

appropriate action after learning that firearms found at the scene of the 

shooting were connected to the Operation. We believe that an aggressive 

response to the information was required, including prompt notification of the 

Attorney General and appropriate inquiry of ATF and the U.S. Attorney’s Office. 

However, we found that senior officials who were aware of the information, 

including Grindler, took no action whatsoever. 

We concluded that Attorney General Holder should have been informed 

by no later than December 17, 2010, that two firearms recovered at the Terry 

murder scene were linked to an ATF firearms trafficking investigation. 

As described previously, U.S. Attorney Burke informed Counsel to the 

Attorney General and Deputy Chief of Staff Monty Wilkinson late on December 

15 of the connection between the firearms found at the Terry murder scene and 

the Fast and Furious investigation. However, Wilkinson told us that he did not 

recall advising Holder about this information. We found that although 

Wilkinson forwarded to Holder during the afternoon of December 15 three emails from the U.S. Attorney’s Office providing further details about the 

shooting and law enforcement efforts to find and arrest the suspects, he did 

not notify the Attorney General of the revelation that two weapons found at the 

murder scene were linked to a suspect in an ATF firearms trafficking 

investigation. Holder told us that he did not learn of this connection until early 

2011, around the time he first became aware of Operation Fast and Furious. 

Grindler learned about the connection between firearms found at the 

scene and Operation Fast and Furious on December 17 in an e-mail from 

Senior Counsel Brad Smith. Smith alerted him to the connection in the body 

of the e-mail, and attached two briefing memoranda, one concerning Operation 

Fast and Furious and one concerning Avila’s history of firearms purchases. We 

concluded that as Acting Deputy Attorney General, Grindler should have 
303 

recognized that the circumstances of Agent Terry’s murder implicated 

significant Department interests. In sum, a federal law enforcement agent had 

been murdered and two of the firearms found at the scene were illegally 

purchased by a straw purchaser who had been under ATF investigation at the 

time of the purchase (which had occurred nearly a year earlier). These facts 

alone, we found, should have prompted Grindler to ask questions about the 

case and to inform Attorney General Holder of the alarming information. 

The memoranda that were attached to the Smith e-mail revealed that the 

Avila weapons purchases were part of a much larger firearms trafficking 

investigation involving over 1,900 firearms bought in cash – facts that should 

have prompted further inquiry about the circumstances of Agent Terry’s 

murder. 

Grindler told the OIG that he could not recall having conversations with 

anyone in the Office of the Attorney General about this matter, and we found 

no evidence that he did. Grindler also told us that he expected the FBI, which 

was responsible for investigating the Terry murder, to address the presence of 

weapons from an ATF investigation at the murder scene. He stated that he 

believed the Terry murder investigation was being taken “extraordinarily 

seriously,” in part because Avila had been arrested, and that he expected he 

would receive updates on the case. Grindler stated that in fact he did not 

receive updates, and the evidence suggests that Grindler did not seek any 

additional information about the matter until February 10, 2011. We believe 

that Grindler’s reliance on the FBI was misplaced given that it did not have the 

responsibility to determine whether errors in ATF’s investigation led to the 

weapons ending up at the murder scene or why ATF failed to take law 

enforcement action against Avila for nearly one year and did so only after Agent 

Terry’s murder. We also believe that Grindler should have ensured that the 

Department of Homeland Security was informed about the linkage.233

When we asked Holder whether he believed that his staff should have 

informed him sooner about the connection between Operation Fast and 

Furious and the firearms found at the scene of the Terry shooting, he said that 

he would not have expected to receive that information absent some indication 

that “inappropriate tactics” had been used in the investigation. However, 

Holder’s Chief of Staff at the time of the Terry murder, Kevin Ohlson, told us 

 

233 After reviewing a draft of this report, Grindler stated that “the Customs and Border 

Patrol were integrally involved in the initial response to the murder clearly indicates that DHS 

would have received the same information that was being passed to the Office of the Deputy 

Attorney General.” We believe that given this information connected a Justice Department 

firearms investigation to the shooting death of a DHS law enforcement agent, the Department’s 

leadership should have ensured that the DHS’s leadership knew about the information at the 

earliest possible time.
304 

that he believed this information was significant and that it should have been 

brought to the Attorney General’s attention. We agree. We believe that 

Wilkinson and Grindler should have notified Holder that the firearms found at 

the Terry murder scene were linked to an investigation being carried out by a 

Department component. Whether and what kind of follow up should have 

occurred was a decision that the Attorney General should have been in a 

position to make, but he was not because he was not given the requisite 

information.

Lastly, had the Department’s senior leadership taken immediate action 

after learning that weapons found at the scene of a federal law enforcement 

agent’s murder were linked to a straw purchaser in an ATF firearms trafficking 

investigation, the Department likely would have gathered information about 

Operation Fast and Furious well before it received the inquiry from Sen. 

Grassley about the very same issue in late January 2011. The Department, 

however, did not do so. As a result, when Sen. Grassley’s letter arrived on 

January 27, 2011, the Department was caught unprepared and, as we discuss 

in Chapter Six, rushed to send out a response letter in one week. 

B. Information Provided to the Criminal Division 

In this section we provide our conclusions regarding the information 

about Operation Fast and Furious that reached Criminal Division personnel 

while the investigation was ongoing in 2009 and 2010 and their responses to 

learning that information. 

1. Gang Unit Prosecutors 

We found that attorneys from the Criminal Division’s Gang Unit received 

information about Operation Fast and Furious during briefings in December 

2009 and March 2010, at a meeting involving ATF leadership and the Criminal 

Division in April 2010, and in the case of one Gang Unit prosecutor (Laura 

Gwinn) through the review of materials from the case file during the summer of 

2010. Despite its repeated efforts to become involved in the investigation, 

however, we found that the Criminal Division’s Gang Unit never assumed 

responsibility for the case due to the decision by the Arizona U.S. Attorney’s 

Office to refuse the Criminal Division’s offer of assistance. 

In response to Director Melson’s request to AAG Breuer in December 

2009 to assign a prosecutor to assist ATF in developing multi-district gun 

trafficking cases along the Southwest Border, Gang Unit Chief Carwile was 

directed to assign an attorney to help coordinate the effort. As a result, Carwile 

and the attorney he assigned to the matter, Cooley, attended a briefing at ATF 

Headquarters on December 17, 2009, and Cooley attended two additional 
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briefings in early March 2010, all of which included some discussion of 

Operation Fast and Furious.234

Although the December 17 briefing included significant information 

about Operation Fast and Furious and firearms recoveries linked to straw 

purchasers in the investigation, it did not include references to or discussions 

about the failure of ATF to seize firearms when they had the opportunity and 

legal authority to do so. Additionally, none of the ATF personnel in attendance 

during the briefing raised any concerns about the operation. Further, the 

information was presented as part of a larger discussion of firearms recoveries 

along the Southwest Border and we found no evidence that the briefing 

included discussion of the direction, strategy, or tactics used in Operation Fast 

and Furious. As a result, we found that neither Carwile nor Cooley had a 

sufficient basis to conclude that ATF had allowed firearms to “walk” based 

solely on this briefing. 

Cooley, however, also received briefings about Operation Fast and 

Furious on March 1 and March 5 at ATF Headquarters. These briefings 

included information about the total number of firearms purchased by that 

date (which was 1,026) and the 17 separate firearms recoveries in the United 

States and Mexico that traced back to the investigation. Witnesses told us that 

these briefings did not include a discussion of the failure by ATF to seize 

firearms where it had the opportunity and legal authority to do so. However, 

witnesses told us that at the March 5 briefing one of the ATF participants 

raised a concern about the high number of guns involved in the investigation. 

In this context, Cooley told us that he informed attendees at the briefing that if 

they wanted to use a wiretap, they would have to let “this thing ride out a bit.” 

He also told us that in the context of a discussion about dismantling the entire 

organization, he stated that individual straw purchasers were “fungible.”

An OSII analyst at the meeting told us he was concerned by Cooley’s 

comments because he thought it was obvious from the information presented 

at the briefing that agents were not seizing guns, and he interpreted Cooley to 

be saying that this was an acceptable practice. However, the analyst told us 

that he did not raise any concern or objection in response to Cooley’s 

comments, nor did anyone else. Cooley told us that what he meant by the “ride 

out a bit” comment was that in proceeding with the plan to use a wiretap, ATF 

would have to allow the straw purchasers to continue to buy firearms, but 

would also have to continue to be aggressive in seizing weapons through 

 

234 At the start of January 2010, Cooley expressed an interest in focusing initially on 

Operation Fast and Furious. However, Cooley spent most of January and February in or 

preparing for a trial in Texas, and did not return his attention to Operation Fast and Furious 

until the beginning of March.
306 

techniques such as “wall stops” or stash house raids. The investigative 

approach did not, in Cooley’s view, prevent ATF from at the same time 

interdicting firearms. Cooley said that “you certainly don’t allow any weapons 

to cross the border if you have any way of stopping it.” He also told us that he 

believed that in using a wiretap, they would have to act with a sense of urgency 

because of the risk that guns would “slip through.” 

Based on this evidence, we concluded that in making the “ride out a bit” 

comment Cooley was not endorsing the strategy and tactics that ATF had used 

in the investigation up to that point, although he did support the plan to use a 

wiretap in the case to target the organization rather than individual straw 

purchasers. Moreover, within 2 weeks of this March meeting, the Arizona U.S. 

Attorney’s Office had objected to the Criminal Division’s participation in the 

investigation and as a result Cooley had no further contact with the case. We 

found no evidence that Cooley had knowledge about the actual investigative 

techniques that ATF was employing and its failure to seize firearms where it 

could lawfully do so. 

Gang Unit Deputy Chief Trusty also gained some information about 

Operation Fast and Furious in the spring of 2010. As we described in Chapter 

Three, Trusty attended the April 28 meeting during which Weinstein discussed 

the gun-walking issue in Operation Wide Receiver with Hoover, McMahon, and 

two representatives of the Department’s Office of Public Affairs. We concluded 

from the participants’ description of and notes taken at this meeting, and from 

the e-mails about the meeting, that it was largely focused on the timing of the 

indictments in Operation Wide Receiver and how to address press issues 

arising from the fact that guns had “walked” in the investigation, as well as 

issues arising from the ATF’s use of an FFL as a confidential informant and an 

agent’s acceptance of a gift from the FFL.235

However, we also concluded that McMahon discussed Operation Fast 

and Furious with Weinstein and Trusty at that meeting. McMahon stated that 

he recalled that issues related to the timing of the indictments in Operation 

Wide Receiver led to some discussion about Operation Fast and Furious at this 

meeting. Weinstein said he understood from the discussion that McMahon 

thought ATF was aggressively seizing guns in Operation Fast and Furious, but 

 

235 After reviewing a draft of this report, Weinstein disagreed with our characterization 

of the April 28 meeting as focused on these issues. According to Weinstein, he addressed the 

inappropriateness of “gun walking” first and that it was not necessary to do an extended 

admonishment of Hoover because it was obvious, from Hoover’s words and reactions, that

Hoover shared Weinstein’s concerns and seemed as upset about the gun-walking as Weinstein 

had been. Weinstein also noted that Breuer testified both that Weinstein had told Breuer this 

was the rationale for the meeting and that Weinstein had reported back to Breuer on this issue 

after the meeting.
307 

that due to the volume of firearms that were being trafficked agents would not 

be present in every instance to seize them, and they would have to answer 

questions about “the guns they didn’t get.” Trusty told us that he also 

understood the case had a “lot of guns in it” and that Operation Fast and 

Furious was a bigger case than Operation Wide Receiver, but said he did not 

remember hearing anything about guns “getting away” or “walking” in the case. 

We were troubled given the context of the meeting that neither Weinstein 

nor Trusty asked more questions about Operation Fast and Furious to ensure 

that their understanding was correct that the case did not involve tactics like 

those used in Operation Wide Receiver, and that they did not convey in forceful 

terms the Criminal Division’s view that such tactics were unacceptable and 

would not be condoned. As we discuss below, we were particularly concerned 

with Weinstein’s failure to probe the matter given his position and 

responsibilities as a Deputy Assistant Attorney General and the fact that this 

meeting was the result of concerns that he had raised about Operation Wide 

Receiver. However, we found that the discussion of Operation Fast and 

Furious during this meeting was insufficient, standing alone, to place 

Weinstein and Trusty on notice that ATF agents were purposefully failing to 

interdict firearms in that investigation.236

Finally, we found that Gang Unit prosecutor Laura Gwinn developed 

concerns about Operation Fast and Furious in the summer of 2010 when she 

was reviewing materials from the Operation Fast and Furious case file as part 

of her efforts to assist Hurley. Gwinn told the OIG that after reading the ROIs 

and wiretap affidavits it was her impression that ATF purposefully was not 

interdicting firearms in order to gain more information about the firearms 

trafficking organization that ATF was investigating. Gwinn said that, contrary 

to what she did in Operation Wide Receiver, she did not inform her supervisors 

about her concerns because by the time she developed them it was clear that 

the Gang Unit was not going to be involved in the case. She also said that 

based on her experience in the Gang Unit, she assumed that the strategy of 

“purposefully not interdicting firearms” would have been vetted and approved 

by the supervisory chain within the U.S. Attorney’s Office. 

While it was not unreasonable for Gwinn to believe that supervisors in 

the U.S. Attorney’s Office and ATF in Phoenix were managing the case, we 

believe she should have alerted her supervisor of her concerns about the case, 

especially given the significance of the “gun walking” issue and her 

 

236 However, as we discuss in the next section, Weinstein also received additional 

information about Operation Fast and Furious from McMahon and from his review of wiretap 

applications.
308 

understanding of its significance in connection with her responsibility for 

prosecuting Operation Wide Receiver. 

2. Authorization of the Wiretap Applications and DAAG 

Weinstein’s Failure to Recognize “Gun Walking” 

In order to ensure accountability for the use of such an intrusive 

investigative technique affecting Fourth Amendment rights, Congress 

substantially restricted in the federal wiretap statute the power to authorize 

electronic surveillance.237 The statute explicitly assigns review and approval of 

electronic surveillance applications to the Attorney General, but allows the 

Attorney General to delegate this review and approval authority to a small 

number of designated high-level Department officials, including Deputy 

Assistant Attorneys General for the Criminal Division.238

ATF and the Arizona U.S. Attorney’s Office submitted nine wiretap 

applications to the Criminal Division for review and approval from March 

through July 2010 in the Operation Fast and Furious investigation. The Table 

below presents information about the review of these applications.

 

237 See USAM 9-7.00.

238 18 U.S.C. § 2516(1). Attorney General Holder has specially designated the Assistant 

Attorney General and the Deputy Assistant Attorneys General (DAAGs) in the Criminal 

Division, including those who serve in those positions in an acting capacity, to authorize 

applications for wiretap orders. Office of the Attorney General, Order No. 3055-2009, February 

26, 2009.
309 

Table 5.1 

Electronic Surveillance in Operation Fast and Furious 

Application Date 

Authorized DAAG Date of Order

Initial (TT1) 3/10/2010 Kenneth 

Blanco

Spin-off (TT2/TT3) 4/15/2010 John Keeney 

Spin-off (TT4) 5/6/2010 John Keeney 

Spin-off (TT5) 5/14/2010 John Keeney 

Renewal (TT2) 5/21/2010 Jason 

Weinstein

Spin-off (TT6) 6/1/2010 Jason 

Weinstein

Extension (TT2) 6/23/2010 Jason 

Weinstein

Spin-off (TT7) 7/1/2010 Kenneth 

Blanco

Extension (TT7) 7/30/2010 John Keeney

A single OEO staff attorney and his assigned supervisor evaluated the 

applications (as did an attorney in ATF’s Office of Chief Counsel) before they 

were sent to a DAAG for review and approval. We determined that three 

DAAGs - Blanco, Keeney, and Weinstein - authorized the nine wiretap 

applications in Operation Fast and Furious. In each case, the OEO staff 

attorney prepared a cover memorandum for the DAAG that provided 

background information about the investigation and evaluated the legal 

sufficiency of the request for a wiretap. 

In light of the explicit statutory assignment of responsibility for 

authorizing wiretap applications, we were troubled by DAAG Blanco’s and 

Weinstein’s statements to us that they did not read the wiretap applications 

and affidavits in Operation Fast and Furious. Both told us that in authorizing 

wiretap applications, they generally rely on information in OEO’s cover 

memoranda and read the affidavits supporting the applications only if the 

memoranda fail to furnish sufficient information or raise concerns. Weinstein 

said that it was rare for him to review the affidavit. 

We believe DAAGs should conduct a review of wiretap applications and 

affidavits that is sufficient to enable them to form a personal judgment that the 

application meets the statutory criteria. While the OEO cover memorandum 

serves a useful purpose in the review process and can appropriately influence 
310 

the scope and nature of the DAAG’s review of the affidavits themselves, we do 

not believe it should supplant such a review. 

We further found that, given DAAG Weinstein’s heightened awareness of 

the “gun-walking” issues in Operation Wide Receiver and his knowledge of 

Operation Fast and Furious, his review of the first OEO cover memorandum 

that he received should have caused him to read the affidavit and ask 

questions about the operational details of Operation Fast and Furious. We 

found that, in this respect, Weinstein was in a unique position among the 

Criminal Division reviewers of the wiretap applications in Operation Fast and 

Furious. 

Weinstein first authorized a wiretap application in Operation Fast and 

Furious on May 21, 2010. As we described in Chapter Three, just two months 

before that application reached his desk, Weinstein made inquiries about the 

“gun-walking” issue in Operation Wide Receiver after reviewing a set of talking 

points prepared by Carwile. The talking points, sent to Weinstein in midMarch 2010, described Operation Wide Receiver as an: 

extensive firearms trafficking case involving ATF, Gang Unit and 

USAO Tucson. With the help of a cooperating FFL, the operation 

has monitored the sales of over 450 weapons since 2006, 

particularly lower receivers of AR-15 rifles.” 

Weinstein told us that “the use of the word ‘monitor’ in that context is what 

raised a red flag” for him. After reviewing the talking points, Weinstein sent an 

e-mail to Carwile, stating: 

I’m looking forward to reading the pros memo [prosecution 

memorandum] on Wide Receiver but am curious – did ATF allow 

guns to walk, or did ATF learn about the volume of guns after the 

FFL began cooperating? 

Later, after reviewing the prosecution memorandum, Weinstein sent an e-mail 

on April 12, 2010, to Carwile and Trusty stating in part: 

Been thinking more about “Wide Receiver I.” 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 operations I've been involved in 

planning - and there will be press about that. 

As we also described in Chapter Three, Weinstein thought the issue was so 

significant that he and Trusty briefed AAG Breuer about it on April 19, 2010. 

Breuer told us that given the time they had devoted to addressing Mexican 

cartel issues, he and Weinstein were upset that ATF had allowed firearms to go 

into Mexico even though there had been legal authority to interdict them. As a 

result, Weinstein and Trusty met with Hoover and McMahon on April 28, 2010, 
311 

a meeting that according to Weinstein was intended specifically to discuss the 

“gun walking” problems in Operation Wide Receiver. 

Weinstein also learned information about the extent and significance of 

Operation Fast and Furious in the three weeks between the April 28 meeting 

and his review of the May 21 wiretap application. As we described earlier in 

this chapter, we found that at the April 28 meeting about the gun-walking 

issue in Operation Wide Receiver, McMahon told Weinstein that he could 

expect to receive similar questions about Operation Fast and Furious because 

of the large amount of firearms involved in that case.

In the week following the April 28 meeting, Weinstein had additional 

conversations with McMahon about Operation Fast and Furious. In response 

to a complaint from McMahon about delays with OEO’s approval of the 

wiretaps, Weinstein sent an e-mail to McMahon on May 4 asking whether 

McMahon would like him to talk with OEO about obtaining a roving wiretap, 

which is viewed as a more invasive wiretap and therefore requires the personal 

approval of the Assistant Attorney General of the Criminal Division. McMahon 

responded on May 6 and told Weinstein that the agents did not believe they 

could meet the elevated standard required for a roving wiretap. McMahon 

indicated that Weinstein could help the investigation by asking OEO for 

quicker turnaround on the regular wiretap applications. The next day, 

Weinstein wrote to the director of OEO to seek faster response times from OEO 

for the wiretap applications. In his e-mail, he described Operation Fast and 

Furious as “perhaps the most significant Mexico-related firearms-trafficking 

investigation ATF has going” and that it was targeting “a gun-trafficking ring 

responsible for sending well over 1,000 guns across the SWB [Southwest 

Border] into Mexico.”239

Just two weeks after this e-mail exchange, and about three weeks since 

his meeting with ATF leadership about the problem of allowing firearms to walk 

in Operation Wide Receiver, Weinstein received the materials for the May 21 

application for electronic surveillance. The application sought renewal of a 

wiretap order for a phone used by the 5-page OEO cover 

memorandum described as 

 

239 After reviewing a draft of this report, Weinstein provided comments to the OIG 

noting that he had told the OIG during his interview that the fact that a large number of 

firearms have been trafficked in a case does not by itself indicate “gun walking.” Weinstein 

also stated in his comments that “the sheer number of guns involved in the case [Operation 

Fast and Furious] was not an indicator or gun-walking, particularly since it included a large 

number of “historical” guns that were purchased before the wiretaps began and in 

circumstances where the agents had no prior knowledge of the sale. . . the number of guns 

involved reflected the scope of the problem of gun-trafficking to Mexico and the significance of 

the investigation and targets.”
312 

 It also stated that 

 

 

 The OEO cover memorandum also provided as an example 

 

 

The OEO cover memorandum went on to note that, 

 

 

The 5-page OEO cover memorandum included 

 

The first paragraph described 

 

 The second 

paragraph described 

 

 

 Although the memorandum was silent as to 

whether the agents made efforts to seize the weapons, the third paragraph 

stated that 

 

In addition, the May 21 OEO cover memorandum was accompanied by 

an earlier undated OEO cover memorandum, stamped “Prior,” that pertained to 

the first request for electronic surveillance on the same cellular phone used by 

 This 7-page 

memorandum stated that 

 The “Prior” memorandum also stated that 

 

 It also stated that 

 

 

 The memorandum described 

 

 

The “Prior” memorandum also recounted that 

 

 

Although the memorandum stated that it 

also stated that 

 

Significantly, the memorandum stated that 

 
313 

We believe that the information contained in these OEO memoranda was 

similar to that which caused Weinstein to question whether agents in 

Operation Wide Receiver had allowed guns to “walk.” When we asked 

Weinstein about the Operation Wide Receiver issue, he told the OIG that the 

description in the talking points and the prosecution memo of ATF having 

“monitored” the sale of firearms by the FFL and recorded transactions in real 

time suggested that ATF had developed evidence that the purchases were 

illegal, giving agents the legal authority to interdict the firearms the moment 

the transactions were completed. He said this description raised a “red flag” 

that ATF had allowed guns to “walk.” The information in the May 21 OEO cover 

memorandum, as well as the undated OEO memorandum stamped “Prior,” 

similarly suggested that ATF agents had monitored purchases that they knew 

were illegal, and allowed a known straw purchaser to continue his illegal 

activities for a gun trafficking organization that sold weapons to Mexico. 

Moreover, although the memoranda did not describe the full scope of the 

investigation, Weinstein already knew when he received the memoranda that 

Operation Fast and Furious targeted “a gun-trafficking ring responsible for 

sending well over 1,000 guns across the SWB [Southwest Border] into Mexico.” 

Even given his practice of rarely reading wiretap affidavits, under these 

circumstances we believe Weinstein should have learned enough from the OEO 

memoranda to both cause him to read the affidavit and to ask ATF or U.S. 

Attorney’s Office personnel further questions about the investigation to ensure 

that ATF was not again conducting an investigation that failed to interdict 

weapons that agents had observed being bought by known straw purchasers. 

Weinstein told us that his experience with Operation Wide Receiver did 

not cause him to look beyond the OEO cover memorandum in authorizing the 

May 21 Operation Fast and Furious wiretap application because he believed 

that the tactics employed in Operation Wide Receiver were an “extreme 

aberration” that occurred under the prior administration and he could not 

imagine that they would be repeated. He also stated that he understood from 

McMahon’s description of Operation Fast and Furious that McMahon was 

under the impression that agents were aggressively seizing guns. In addition, 

Weinstein told us that the information in the May 21 OEO cover memorandum 

provided evidence to him of what he was looking for – probable cause that the 

phone in question had been used for criminal purposes. He also stated that 

the memorandum’s silence on the efforts to interdict was not unusual because 

such memoranda are not written to provide all the facts about the 

investigation. 

We did not find this explanation persuasive. In short, given Weinstein’s 

awareness of the gun-walking issue, his knowledge about Operation Fast and 

Furious, and his experience with law enforcement issues arising from the flow 

of guns to violent Mexican cartels, the information in the OEO cover 
314 

memorandum should have been a “red flag” to him to examine Operation Fast 

and Furious more closely. 

3. Assistant Attorney General Breuer 

We found no evidence to suggest that AAG Breuer was aware in 2009 or 

2010 that Phoenix ATF and the Arizona U.S. Attorney’s Office had adopted a 

strategy in Operation Fast and Furious of not interdicting firearms. Moreover, 

Breuer did not supervise Operation Fast and Furious and did not authorize any 

activities in the investigation. 

At Melson’s request, Breuer agreed in December 2009 to assign a 

Criminal Division prosecutor to assist with cases along the Southwest Border, 

including development of intelligence-led multi-district firearms trafficking 

prosecutions. However, we found no evidence that Breuer was made aware of 

the then-captioned Chambers case in conjunction with offering this assistance. 

In addition, although Criminal Division weekly reports for the Offices of the 

Attorney General and Deputy Attorney General in October and November 2010 

made passing references to Operation Fast and Furious, they did not describe 

problems in the investigation.240

As we described earlier in this Chapter, ATF and the U.S. Attorney’s 

Office submitted several applications for electronic surveillance in Operation 

Fast and Furious to the Department’s Criminal Division beginning in March 

2010. We found that Breuer had no role in authorizing these wiretap 

applications. Instead, consistent with the statutory designation and the 

Attorney General’s delegation of authority, the wiretap applications in 

Operation Fast and Furious were authorized by three Deputy Assistant 

Attorneys General. We found no evidence that Breuer received any of the nine 

affidavits, or that he reviewed the applications or took any actions concerning 

them. 

 Breuer also received two weekly reports from 

the Gang Unit that mentioned Operation Fast and Furious, but they too did not 

identify problems in the investigation. One of the reports briefly stated that 

Cooley had attended a briefing on March 1, 2010, “on developments in 

Operation Fast and Furious and various firearms trafficking investigations 

based in Phoenix, AZ.” The other report stated that Cooley attended a briefing 

on March 5, 2010, regarding “Operation Fast and Furious, an extensive 

firearms trafficking investigation based in Phoenix, Arizona,” and that ATF 

planned to use a wiretap in that case. 

 

240 These reports referred to the indictment of eight individuals under seal in a case 

originating from Tucson (the Flores case) and stated that the indictment likely would remain 

sealed until Operation Fast and Furious was ready for “takedown.” Breuer told us he did not 

recall reviewing these reports.
315 

As we described in Chapter Three, in April 2010 Breuer learned from 

Weinstein and Trusty that ATF had intentionally failed to interdict firearms in 

Operation Wide Receiver. At Breuer’s request, Weinstein and Trusty met with 

Hoover and McMahon on April 28, 2010, to discuss the flawed tactics, and 

Weinstein reported to Breuer in an e-mail after the meeting that they had 

discussed the “case with the issues about the guns being allowed to walk” and 

agreed that the best approach would be to indict the case under seal and later 

unseal them with a different matter. 

We also found that McMahon mentioned Operation Fast and Furious to 

Weinstein during or after this April 28 meeting. According to both Weinstein 

and McMahon, during or shortly after the meeting they discussed a case in 

Phoenix (Operation Fast and Furious) that, like Operation Wide Receiver, 

involved a lot of firearms and took a long time to prosecute. However, 

Weinstein’s e-mails to Breuer summarizing the April 28 meeting did not refer to 

the discussion of Operation Fast and Furious. We found no evidence that 

Breuer learned about “gun walking” allegations in Operation Fast and Furious 

until public revelations in 2011. We discuss in Chapter Six Breuer’s failure in 

January and February 2011 to connect the gun-walking issue in Operation 

Wide Receiver to the allegations concerning Operation Fast and Furious that 

Senator Grassley raised in his January 2011 letters to the Department. 

C. ATF Headquarters’ Oversight of Operation Fast and Furious 

Our investigation identified serious failures by the leadership of ATF in 

supervising Operation Fast and Furious. We determined that ATF’s senior 

leaders, including Acting Director Melson, Deputy Director Hoover, Assistant 

Director Chait, and Deputy Assistant Director McMahon, failed to properly 

oversee the investigation and did not sufficiently evaluate the risk to public 

safety that the investigation’s strategy and tactics presented. We found that 

Hoover, Chait, and McMahon received information early in the development of 

Operation Fast and Furious that should have caused them to ask questions 

about the investigation’s strategy and tactics and exercise heightened scrutiny 

of the investigation. We found that Melson was similarly at fault by no later 

than mid-March 2010. We also concluded that all four senior leaders had 

sufficient knowledge about the investigation to understand the imperative of 

bringing it to a swift conclusion, yet failed to ensure that this happened. 

Moreover, even after Agent Terry was murdered in December 2010 and the 

firearms found at the scene were connected to Operation Fast and Furious, 

Melson and Hoover took no significant action within the Department other than 

to ask for information about Avila’s role in the investigation. 

We also found that Melson and Hoover were poorly served by the 

leadership of the Office of Field Operations in Operation Fast and Furious. 

Because of their inattentive approach to oversight and failure to adequately 

advise their superiors about the investigation, McMahon and Chait deprived 
316 

Melson and Hoover of important opportunities to more fully evaluate the case 

early in its development and to address the flawed strategy that the agents 

were implementing. 

In sum, we found that Operation Fast and Furious received little to no 

supervision by ATF Headquarters despite its connection to a dangerous 

narcotics cartel in Mexico, the serious risk it created to public safety in the 

United States and Mexico, and its potential impact on the country’s 

relationship with Mexico. 

We discuss the most significant of these issues and others involving ATF 

Headquarters in greater length below. 

1. Oversight Failures in January 2010 

As described above, leaders at ATF’s Headquarters, including Melson, 

Hoover, Chait, and McMahon, first received briefings about Operation Fast and 

Furious in December 2009. Information presented in those briefings caused 

some Headquarters’ officials, including ATF’s Southwest Border Interdiction 

Coordinator Rowley and OSII Assistant Director McDermond, to raise concerns 

about the investigation. 

We found that McDermond’s concerns caused him to ask Chait to attend 

the OSII briefing on January 5, 2010. McMahon also attended the briefing, 

which revealed that 685 firearms had been trafficked in the case and that 

Steward, Patino, and Moore had purchased 197, 115, and 113 firearms, 

respectively. According to ATF officials we interviewed, these figures were 

exceptionally large for an ATF firearms investigation. McMahon told us the 

figures at the January 5 briefing were “staggering.” McMahon and Chait also 

were aware at the time of the briefing of the numerous firearms recoveries 

outside the United States that had been traced back to suspected straw 

purchasers in the case, such as the recovery of 17 of 48 firearms in Mexicali, 

Mexico in early December 2010, and that the firearms that the straw 

purchasers were acquiring were the weapons of choice for drug cartels. 

We found no evidence, however, that McMahon or Chait took any actions 

in response to the January 5 briefing to more closely monitor the investigation, 

assess risks to public safety, and frame issues in the case for future decision. 

This was true despite AD McDermond’s request to Chait to attend the briefing 

over concern about the number of firearms recoveries, as well as questions 

from Martin and Rowley that challenged the Office of Field Operations’ 

approach to the investigation. Although Chait told us that no one ever 

expressed any concerns to him about the number of firearms that were being 

trafficked, McDermond and Daniel Kumor, Chief of ATF’s International Affairs 

Office, informed us that they were present when such concerns were expressed 

in Chait’s presence. 
317 

During our interview, McMahon said that following the January 5 

briefing there should have been a larger discussion with the Phoenix Field 

Division and a risk assessment of the investigation completed. We found no 

evidence that McMahon or Chait made any effort to ensure that such a risk 

assessment discussion occurred. McMahon also said that the focus of the 

investigation was on taking down a large firearms trafficking organization and 

that in the process “[w]e lost sight of public safety.” 

We believe that McMahon and Chait should have responded to the 

January 5 briefing by seeking an immediate explanation from Newell about the 

case strategy and what the Phoenix Field Division intended to do to either 

prevent the leading straw purchasers from acquiring even more weapons or to 

interdict them following their purchase. After receiving this information, the 

Office of Field Operations should have worked with Newell to formulate a 

recommended approach that fully accounted for the benefits and risks in the 

investigation, including the risk to public safety, and vetted it with Deputy 

Director Hoover. This did not happen. Indeed, we found no evidence that it 

was even contemplated by Chait or McMahon. 

Moreover, we determined that McMahon, who was Newell’s direct 

supervisor and primary point of contact at ATF Headquarters, failed to evaluate 

and share critical information about Operation Fast and Furious with Chait, 

Hoover, and Melson early in the investigation. For example, on January 8, 

2010, Newell sent McMahon a memorandum that expressly stated that ATF 

Phoenix had adopted a strategy in the investigation “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. . . .” Newell’s memorandum communicated to McMahon what 

would become the key failing of the investigation: allowing guns to flow 

unimpeded to violent criminals. Yet McMahon told us he did not even read the 

contents of the memorandum, and his e-mail account did not reflect that he 

forwarded the memorandum to Chait despite its significance. Further, Chait 

said he did not believe that he received it at the time. When we asked Chait 

about McMahon’s conduct, he faulted Newell for not telephoning McMahon to 

confirm that he received the e-mail that attached the memorandum. We found 

this criticism misplaced and believe that Newell should have been able to rely 

on McMahon to read the e-mails and briefing memoranda that he sent and to 

disseminate them within ATF Headquarters as appropriate. 

McMahon also stated that he was aware of and concurred with Newell’s 

strategy to defer overt investigative activity in order to build a case against the 

firearms trafficking organization and that Newell convinced him that 

approaches such as McMahon’s suggestion to confront some of the straw 

purchasers early in the investigation were not appropriate. According to 

McMahon, Newell told him that confronting the straw purchasers would 

jeopardize the investigation of the larger firearms trafficking organization, that 
318 

the U.S. Attorney’s Office did not favor that approach, and that his agents were 

close to identifying other conspirators. McMahon said he also accepted 

Newell’s explanations about Hurley’s interpretation that probable cause was 

lacking to seize firearms. However, this approach utterly failed to consider the 

ever increasing danger to the public as more guns were sold to straw 

purchasers without interdiction. If the leadership of the ATF Phoenix Field 

Division did not recognize this risk, it was McMahon’s responsibility to do so. 

Moreover, if there was resistance from the U.S. Attorney’s Office on authorizing 

arrests, McMahon and others in ATF Headquarters should have elevated the 

issue within the U.S. Attorney’s Office and within the Department. 

We found that McMahon did not challenge Newell’s explanations. 

Overall, we found he failed to exercise any meaningful oversight of Newell’s 

activities in Operation Fast and Furious. McMahon told us that “my 

management style was to allow the SACs to run their divisions, update me, I 

would help them get the resources they need.” This approach, we believe, was 

not consistent with McMahon’s position as Newell’s supervisor and 

responsibilities as a Deputy Assistant Director in the Office of Field Operations. 

ATF’s Headquarters leadership missed another opportunity to influence 

the direction of Operation Fast and Furious following an OSII briefing on 

January 12, 2010. ATF records show that Chait, Hoover, and Melson attended 

the briefing, which showed that the number of trafficked firearms had 

escalated to 729, that Steward and Patino had acquired 221 and 135 weapons 

respectively, and that firearms from Operation Fast and Furious had been 

recovered at multiple crime scenes. Hoover, who said he did not remember 

attending this briefing although the sign-in sheet confirmed his presence, told 

us that the information would have “raised questions” with him, such as 

whether agents had advance notice of the firearms purchases. He said that he 

did not recall taking any actions in light of the January 12 briefing. We believe 

this briefing should have prompted Hoover, McMahon, and Chait to carefully 

assess how the Phoenix Field Division was managing the investigation, the 

risks that the continued investigation posed, and ATF’s dealings with the 

Arizona U.S. Attorney’s Office. 

Melson said that the number of firearms identified at the January 12 

briefing was a “red flag” that highlighted the seriousness of the case, but that 

his expectation following the briefing was that Hoover, Chait, and McMahon 

were supervising it and were aware of how it was being handled. 

McDermond also stated that in approximately this time period, as well as 

after the briefings in March 2010, he expressed frustrations to both Melson 

and Hoover about the increasing number of firearms in the investigation. 

Melson said he did not recall hearing concerns from McDermond. Hoover said 

that McDermond and Rowley raised concerns with him during the March time 

period about the firearms that were being trafficked in the case. We found no 
319 

evidence that either Hoover or Melson took any action in response to the 

questions that McDermond raised, or that Hoover responded to Rowley’s 

concerns. Rowley stated that there were no attempts “to engage me in a 

serious discussion about the concerns that I had.”

2. Failure to Respond to the Lack of ATF Initiated Firearms 

Seizures 

Despite the contents of the January 12 briefing, Hoover told us that he 

did not learn until March 2010 that agents in some circumstances had 

advance notice of firearms purchases, which he said he learned from Chait and 

McMahon. He said that this fact, combined with the high number of firearms 

in the case, prompted him to request an “exit strategy” (which we discuss 

below). Melson and Chait told the OIG that they were not aware until 2011 

that agents had advance notice of purchases described in the various briefings 

that they received. In addition, Melson, Hoover, Chait, and McMahon each 

said that they were not aware until 2011 that agents had failed to seize 

firearms when they had probable cause to do so. 

We found these explanations troubling because they demonstrated that 

these leaders failed to exercise their responsibility to understand and oversee 

the investigative tactics that were being employed by a field division in a major 

investigation. Moreover, the information was readily available to them. For 

example, McMahon had known from a briefing paper that Newell sent to him 

on December 2, 2009, that FFLs were notifying ATF in advance of orders for 

firearms and that agents were conducting surveillance of the purchases. 

Similarly, in an e-mail to McMahon on January 5, 2010, Newell informed him 

that ATF was “to proceed with getting up on a wire before conducting any overt 

investigative activity.” This decision included not confronting the leading straw 

purchasers in the case, some of whom had acquired more than 100 firearms by 

that date. Hundreds more firearms were acquired by numerous straw 

purchasers during the period that the wiretaps were being sought and 

operated.241

Moreover, these leaders should have anticipated that agents would have 

advance knowledge about future firearms purchases given the wide array of 

proactive investigative techniques that the agents in Phoenix were using, 

including physical surveillance, pole cameras, consensually monitored 

 

241 We found that neither McMahon nor anyone else at ATF Headquarters considered 

the potential danger to the public that arose from allowing straw purchasing to continue 

without overt enforcement action while nine wiretap applications were sought and operated 

over the following seven months. We further determined that no one at Headquarters 

suggested the possibility of proceeding with a wiretap while simultaneously making efforts to 

disrupt illegal activity through carefully managed overt enforcement action.
320 

telephone calls, and cooperating sources. As a result, there should have been 

at least some recognition that agents would have advance notice of weapons 

purchases. At a bare minimum, the information about these investigative 

techniques should have prompted ATF’s leadership to ask at least some basic 

questions about the investigation earlier than Hoover eventually did. 

More significantly, the explanations offered by Melson, Hoover, Chait, 

and McMahon for their lack of knowledge demonstrated that they failed to 

recognize and react to the lack of ATF enforcement activity in the investigation. 

Given the level of proactive investigative activity in the case and the volume of 

firearms purchases that was being reported, they should have expected to see 

numerous ATF-initiated seizures, either by ATF agents themselves or in 

coordination with federal, state, or local law enforcement. Instead, from the 

opening of the investigation in October 2009 until June 2010, ATF initiated 

only a single seizure - the Tohono O’odham seizure in February 2010 which 

was carried out by Border Patrol agents. The lack of ATF-initiated seizures 

should have alerted ATF executives to the problem that agents were deferring 

enforcement activities.242

Hoover told us that after he saw the photograph of weapons from the 

Tohono O’odham seizure that he “thought okay, well then we are interdicting 

guns and we’re stopping these things when we have the opportunity to stop 

them. And then, so, I just assumed that that was taking place.” He also stated 

that he assumed from the briefing slides he saw in March 2010 showing 

firearms seizures at various locations that ATF had provided information that 

prompted the seizures. With the exception of the Tohono O’odham seizure, this 

turned out to be false. 

 We found no evidence, however, that ATF executives 

inquired at any time about the lack of ATF-initiated seizures in the case. 

Instead, we found that they simply assumed, without inquiring, that agents 

were seizing firearms when they could. 

Hoover said that McMahon and Chait told him in approximately April 

2010 that agents were stopping the firearms whenever they had the 

opportunity. Given the volume of firearms involved, and the concerns that 

caused Hoover to request an exit strategy (which we discuss further below), we 

believe Hoover should have done more than simply accept what McMahon and 

Chait told him without any further follow up. The significance of his failure to 

do so became more apparent when we determined that Chait’s and McMahon’s 

knowledge was not based on inquiries they had made about the issue or 

discussions about seizure activity with agents in the Phoenix Field Division. 

 

242 After reviewing a draft of this report, Melson told the OIG that he believed it was 

significant that he was unaware in 2009 and 2010 of ATF’s prior history of “gun walking” in 

Operation Wide Receiver.
321 

Chait told us that he thought agents were seizing weapons because of the 

number of recoveries and assumed “that where there’s opportunity, they’re 

taking action.” 

Melson also failed to ask sufficient questions about the lack of ATF 

initiated seizures and made the same faulty assumptions about the 

investigation. He was aware from briefings he received in January and March 

2011 that the number of firearms that were being trafficked in the case was 

exceedingly high. While Melson asked detailed questions at his March 11 

briefing about particular investigative techniques, such as use of pole cameras, 

we found no evidence that he inquired about more obvious considerations such 

as public safety and the approach to firearms seizures. We determined that 

the reason Melson was not suspicious about the handling of the investigation 

was precisely because he had failed to ask rudimentary questions about how 

the investigation was being implemented. Like Hoover, Chait, and McMahon, 

Melson assumed too much and believed that agents were seizing firearms when 

they could. 

Most significantly, the ever widening gap as time went on between the 

number of firearms bought by straw purchasers and the number of firearms 

seized or recovered (whether or not by ATF) should have made it clear to 

Melson, Hoover, Chait, and McMahon that no matter what they were being told 

by the ATF Phoenix Field Division or what they had assumed, there was a 

significant issue with the conduct of the investigation and that ATF was not 

taking adequate enforcement action. No one, however, in ATF’s senior 

leadership seemed to notice. 

McMahon (like Newell and Voth) told us that public safety is well-served 

by targeting firearms trafficking organizations that support the market in illegal 

firearms and that removing individual straw purchasers who can be quickly 

replaced does little to stem the overall flow of illegal weapons. We do not 

believe that this perspective excuses or justifies a failure to adequately protect 

the public from firearms traffickers associated with a dangerous narcotics 

cartel. We reject the view that a federal law enforcement agency should 

facilitate such a threat to public safety with no attempt to mitigate the ongoing 

danger, in order to advance a larger law enforcement purpose. We found it 

deeply troubling that so many supervisors in ATF articulated such a viewpoint 

to us. 

3. The Impact of Newell’s Incomplete and Misleading 

Information 

Newell sent two e-mails to McMahon in January 2010 that 

mischaracterized agents’ efforts to disrupt the straw purchases. On January 5, 

2010, he wrote that his agents were “doing everything possible to slow these 

guys [the straw buyers] down,” followed by an e-mail on January 14 that 
322 

“[h]opefully the big bosses realize we are doing everything possible to prevent 

guns going into Mexico while at the same time trying to put together a 

phenomenal case.” As we described in Chapter Four, ATF’s agents in Phoenix 

told us they were not slowing the subjects’ purchasing activity in January and 

beyond for fear of jeopardizing the anticipated wiretap and due to Hurley’s legal 

advice. Newell’s e-mails conveyed a misleading impression that agents were 

slowing purchases and interdicting firearms when in fact they were not. 

Newell also told the OIG that he “pushed for” the March 5 briefing 

because he wanted ATF Headquarters to be fully informed about Operation 

Fast and Furious and to understand that “[t]his is our plan. So that if anybody 

had an issue with it, speak now or forever hold your peace.” ATF’s 

presentation on March 5, however, omitted key details about “the plan” that 

would have alerted ATF executives to problems. Although Voth presented the 

briefing, Newell failed to highlight for the briefing attendees that the case 

strategy that the ATF Field Office had adopted in early January involved 

allowing the transfer of firearms to continue, that the straw purchasers had 

acquired nearly 300 firearms since early January, that ATF had no immediate 

plans to change that strategy (ATF’s next seizure was not until June), that ATF 

had advance notice of many purchases, and that ATF had initiated only one of 

the 17 seizures and recoveries described at the briefing. We believe that the 

deficiencies in the investigation and the urgency needed to resolve them was 

not evident from Newell’s behavior. 

Newell also provided information to McMahon after the murder of Agent 

Terry that we found conveyed a misleading impression about the activities of 

Group VII. In January 2011 he e-mailed McMahon talking points for the 

Operation Fast and Furious press conference that month. Newell informed 

McMahon: 

[T]hroughout the course of the investigation numerous seizures were 

made by other State, local and Federal law enforcement agencies at 

the direction of Phoenix Group VII in order to ensure the seized 

firearms did not reach their intended destination but also to 

ensure the leadership of this firearms trafficking organization was 

not “tipped off” to the proactive measures taken while the larger 

conspiracy case was being prepared for the USAO. To date 350 

firearms have been taken into ATF custody as a result of these 

combined efforts. (Emphasis added).243

 

243 Newell had made a similar representation to McMahon previously. On December 

21, 2010, he e-mailed McMahon stating that “I had David Voth pull the numbers of the guns 

recovered in Mexico as well as those we had a direct role in taking off here in the US. Almost 

all of the 350 seized in the US were done based on our info and in such a way to not burn the 

wire or compromise the bigger case.”
323 

We do not believe that Newell’s representation to McMahon about the 

frequency of seizures and number of firearms seized at ATF’s direction was 

accurate. As we noted earlier in this Chapter and in Chapter Four, we 

concluded that ATF did not direct seizures besides the Tohono O’odham seizure 

for the first 7 months of the investigation (prior to June 2010). According to 

our review of ATF’s data, ATF Group VII initiated 10 seizures that accounted for 

105 firearms, less than one-third the number that Newell claimed.244

We do not believe, however, that this receipt of incomplete and 

misleading information from Newell provides an excuse for McMahon, Chait, 

and Hoover not taking steps to better inform themselves about Operation Fast 

and Furious prior to early March. Newell was not their exclusive source of 

information on matters related to Operation Fast and Furious. The number of 

weapons and the amount of cash involved, the increasing difference as the 

investigation continued between the number of firearms purchased and the 

number seized, and their knowledge of firearms issues and operational duties 

should have prompted them to ask probing questions about the strategy and 

tactics in the investigation and to ensure that the Phoenix Field Division was 

conducting the investigation in a way that protected public safety. 

4. Hoover’s Failure to Oversee the “Exit Strategy” 

We found that at Hoover’s request the Phoenix Field Division developed 

an “exit strategy” for Operation Fast and Furious, which it forwarded to 

McMahon on April 27, 2010 – more than a month after Hoover said he 

requested it and after the straw purchasers in Operation Fast and Furious had 

acquired 1,514 firearms. We determined that the request for an exit strategy 

was long overdue. We also found that the strategy drafted by ATF Phoenix was 

poorly conceived and failed to address issues that were relevant to a prompt 

conclusion of the investigation. Moreover, ATF’s leadership, having asked for 

the strategy, failed to adequately oversee its implementation. 

 

244 After reviewing a draft of this report, Newell submitted comments disputing our 

findings that e-mails he sent to McMahon on January 5 and 14, 2010, and in January 2011 

were misleading. With respect to the January 5 e-mail, Newell stated the “slowing down” 

comment was in reference to his understanding of the FFLs’ willingness to delay completing 

sales to subjects to give agents an opportunity to establish surveillance. With respect to the 

January 14 e-mail, Newell stated that he believed at the time that agents were doing everything 

possible to prevent firearms from going to Mexico, including pursuing a wiretap and placing a 

tracking device Newell also noted that 

both the December 1, 2009, and January 8, 2010, Operation Fast and Furious briefing papers 

he submitted to McMahon outlined all of the investigative steps that were being taken in the 

investigation. With respect to the January 2011 e-mail to McMahon, Newell stated that the 

information he conveyed was provided to him by Voth and that Newell believed the information 

was accurate.
324 

Hoover told us that he asked for the exit strategy following a March 2010 

briefing due to the large numbers of firearms that were being acquired by some 

of the straw purchasers, and because ATF agents in some circumstances had 

advance notice of the firearms purchases. We found that Hoover requested the 

strategy no later than March 22, 2010. Hoover’s notes show that he received a 

briefing that day from the Office of Field Operations and wrote “Strategy?”, and 

Hoover told us that he requested the exit strategy at the time he recorded the 

notes. According to Hoover, he requested the Office of Field Operations to 

“expedite as much as they could what was happening in this investigation.” 

Despite this request from the Deputy Director, McMahon did not send 

Newell an e-mail asking for an exit strategy until April 27, over 4 weeks after 

Hoover requested it. McMahon, however, told us that he called Newell about 

the request immediately after being asked to obtain the exit strategy. Chait 

said he had to remind McMahon about the need to obtain the strategy after it 

was not forthcoming from Newell. McMahon also said that he believed that his 

decision to e-mail Newell on April 27 was prompted in part by his learning that 

he needed to attend a briefing on April 28 with Weinstein to discuss Operation 

Wide Receiver. 

We found that the Office of Field Operations’ response to Hoover’s 

request for the exit strategy, as with other aspects of the case, lacked urgency 

and demonstrated disregard for the public safety. We believe it should not 

have taken more than four weeks to obtain the exit strategy. Chait should 

have more closely monitored the collection of the strategy and McMahon 

should have acted faster to obtain it from Newell. 

Even more disturbing, once McMahon received the exit strategy, no one 

at ATF Headquarters took decisive action to implement it. McMahon told us 

that he forwarded the exit strategy to Chait and Hoover after he received it from 

Newell. Although we found that McMahon e-mailed the strategy to Chait, we 

found no record that he forwarded the document to Hoover. Hoover told us 

that he did not read it until 2011 and that he trusted Chait and McMahon “to 

do their job to oversee the investigation” and that he should not have had to 

“micromange” their implementation of the exit strategy. 

Hoover’s assumption again proved to be faulty as the Office of Field 

Operations did not ensure that the investigation was concluded promptly. We 

found that Hoover’s failure to follow up on his request for an exit strategy was a 

serious management failure on his part. Hoover told us that this was the first 

time he had asked for an exit strategy during his 20+ years at ATF, which we 

found to be an indication of his serious concern about the ongoing risks 

associated with the investigation. Yet, Hoover took no action to see if a strategy 

was ever prepared, or if anyone had taken any steps to implement it. As it 

turned out, the “exit strategy” that Hoover asked for never was implemented 
325 

and the first arrest did not occur until December, immediately after Agent 

Terry’s murder. 

Melson said he was not aware until 2011 that Hoover had requested an 

exit strategy, although he was aware by the summer of 2010 that the 

indictment was overdue. Melson e-mailed Chait and Hoover in July to ask: 

“When will we be taking Fast and Furious down? An awful lot of guns seem to 

be flowing south.” However, we found no evidence that Melson ever contacted 

Burke and expressed dissatisfaction that Hurley was taking too long to bring 

an indictment. Melson told us that he would not have tried to “push” Burke 

over the indictment and that he communicated through Chait and Newell to 

complain to the U.S. Attorney’s Office. However, Burke told us that other than 

the corpus delicti issue, he never heard of complaints from ATF about the U.S. 

Attorney’s Office’s handling of gun trafficking investigations. According to 

Burke, Newell was “always very positive” about the case. 

Melson said that he had a “significant frustration” with delays in the case 

and that he probably raised concerns about the U.S. Attorney’s Office with 

Acting Deputy Attorney General Grindler, though he did not have a specific 

recollection of doing so. Hoover told us that he had no recollection of having 

any discussions with Melson about elevating his concerns to Grindler or the 

Office of the Deputy Attorney General. Hoover told the OIG, however, that he 

raised the issue of delays with the indictment with Edward Siskel, an assistant 

to Grindler who covered ATF matters for most of 2010, in the late summer or 

early fall of 2010. Neither Grindler nor Siskel said they recalled discussions 

with Melson concerning Operation Fast and Furious other than at Grindler’s 

briefing on March 12, 2010. In addition, Siskel told us that he did not recall 

anyone from ATF expressing concerns to him about the pace of the prosecution 

in Operation Fast and Furious or hearing of any concerns about the Arizona 

U.S. Attorney’s Office. 

We believe that Melson should have discussed his concerns about delays 

in Operation Fast and Furious with Burke, and if that effort proved 

unproductive, with the Office of the Deputy Attorney General. The only 

complaint Melson made to the Department that we were able to confirm did not 

occur until November 2010. At that time Melson complained to DAAG 

Weinstein in the Criminal Division, a component with no jurisdiction over the 

Arizona U.S. Attorney’s Office. 

5. Chait and McMahon’s Failure to Review the Wiretap 

Applications and Affidavits 

We found that ATF policy required the Assistant Director of the Office of 

Field Operations to review wiretap applications and affidavits, and that this 

responsibility had not been delegated to other ATF staff. Chait did not comply 

with this policy, and his description to us of the wiretap review process within 
326 

ATF demonstrated that he believed that DADs should complete this function as 

time permitted.245

Although McMahon has stated that he regretted not reviewing the 

wiretap applications, we found no ATF policy that imposed a duty on Deputy 

Assistant Directors (DAD) in the Office of Field Operations to review them. We 

found that McMahon initialed transmittal memoranda on Chait’s behalf from 

the Office of Field Operations to the Criminal Division for four of the wiretap 

applications, and as DAD for ATF’s Western Division he had access to all nine 

applications that ATF submitted to the Criminal Division.

 Neither Chait nor McMahon reviewed the wiretap 

applications in Operation Fast and Furious. 

246

We believe that given the practice at ATF to have DADs review wiretap 

affidavits and given the particular circumstances present in Operation Fast and 

Furious, McMahon should have scrutinized the affidavits, especially their 

descriptions concerning probable cause. He did not do so, however, even 

though he told us that he was aware of “red flags” in the investigation by 

March 10, 2010 - the date of the first wiretap application - and that he 

considered the level of criminal activity in the case to be “huge.” However, 

McMahon told us that it was not his practice to review wiretap affidavits that 

came through his office, and that his interest was in “just trying to move the 

process along so that we could get that wiretap up so that we can maybe bring 

this case to closure. . . . I didn’t want to . . . impede[] us going forward with the 

wiretaps.” 

 Other Office of 

Field Operations DADs we interviewed stated that it was their practice to 

review the wiretap affidavits from the field offices that they supervised. Hoover 

told us that a DAD should take steps to assure himself that the affidavit is 

appropriate for transmittal to the Department. 

Given McMahon’s knowledge of and concern about the scope of the 

investigation, we believe that McMahon should have reviewed the wiretap 

 

245 After reviewing a draft of this report, Chait, through his counsel, informed the OIG 

that “[a]lthough we were unable to identify any written delegation of review authority, such a 

delegation constructively has been in effect, and in operational practice, since at least 2001.” 

Chait also noted that the ATF order that established the requirement for the Assistant Director 

to review wiretap applications did not preclude delegation of that responsibility to others. We 

are not persuaded by Chait’s interpretation given that the terms of the ATF order impose a duty 

on the Assistant Director to review wiretap applications and that the order does not 

contemplate redelegation of such authority. Moreover, as we stated above, ATF informed the 

OIG that there was no delegation from the Assistant Director of the requirement to review the 

application and affidavit.

246 McMahon told us that with the exception of one affidavit in Operation Fast and 

Furious, he did not recall receiving the wiretap applications. He stated that if ATF’s procedures 

required DAD review, then he would have expected to have received the wiretap applications 

and for someone to have informed him that he should review them.
327 

affidavits and inquired with Newell 

 

 After reviewing several of the affidavits during one of our interviews 

with him, McMahon told us he would have had questions for Newell about 

them. For example, after reviewing the affidavit associated with the May 21, 

2010, application (which also was the first wiretap application authorized by 

DAAG Weinstein), McMahon stated that he believed that there was probable 

cause to seize the firearms that were described in a portion of the affidavit 

 

 247

 

247 The May 21, 2010, OEO cover memorandum that was reviewed by Weinstein 

summarized 

 We found that McMahon’s failure to review the 

affidavits at the time of the applications deprived him of important information 

in his supervision of the investigation.
328 

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329 

CHAPTER SIX

THE DEPARTMENT’S STATEMENTS TO CONGRESS 

CONCERNING ATF FIREARMS TRAFFICKING INVESTIGATIONS

On January 27, 2011, Senator Charles E. Grassley, Ranking Member of 

the Senate Judiciary Committee, wrote to ATF Acting Director Kenneth Melson 

raising concerns about “an ATF operation called ‘Project Gunrunner.’” Among 

the concerns described in the letter were allegations that ATF had “sanctioned 

the sale of hundreds of assault weapons to suspected straw purchasers” who 

then transported these weapons throughout the southwest border area and 

into Mexico, and that two of these weapons were used in a firefight that 

resulted in the death of Customs and Border Protection (CBP) Agent Brian 

Terry. Senator Grassley requested a briefing on Project Gunrunner no later 

than February 3, 2011. Sen. Grassley sent another letter on January 31 

raising concerns about how an official in the ATF’s Phoenix Field Division had 

“questioned” one of the ATF special agents who provided information to Sen. 

Grassley’s staffers about Project Gunrunner. 

On February 4, 2011, before providing the requested briefing, the 

Department responded in writing by denying the allegations. The response 

stated that Sen. Grassley’s allegation that ATF “sanctioned” or otherwise 

knowingly allowed the sale of assault weapons to a straw purchaser who then 

transported them into Mexico was false. The response also asserted that “ATF 

makes every effort to interdict weapons that have been purchased illegally and 

prevent their transportation to Mexico.” In the course of evaluating 

information from ATF and the U.S. Attorney’s Office for the District of Arizona 

over the next several months about Operation Fast and Furious and other gun 

trafficking investigations, the Department concluded that the February 4 

response “contains inaccuracies,” and formally withdrew it on December 2, 

2011. 

In this chapter we describe how the Department formulated its February 

4 response to Sen. Grassley denying the allegations in the January 27 letter. 

We also describe how the Department reassessed its representations to 

Congress in the February 4 letter and subsequently reached the conclusion 

that those representations were inaccurate and that the February 4 letter 

should be withdrawn. In sum, we concluded that the Department officials who 

had a role in drafting the February 4 letter should have done more to inform 

themselves about the allegations in Sen. Grassley’s letter and should not have 

relied solely on the assurances of senior officials at ATF and the U.S. Attorney’s 

Office that the allegations were false. 

We also describe the Department’s response on May 2 to a follow-up 

letter from Senator Grassley, and testimony to Congress on June 15 

concerning the Department’s evolving position on the allegations in Sen. 
330 

Grassley’s January 2011 letters. We found that the statement in the May 2 

letter – “It remains our understanding that ATF’s Operation Fast and Furious 

did not knowingly permit straw buyers to take guns into Mexico” – reasonably 

could have been understood by Congress and the public as at least a partial 

reaffirmation of the February 4 letter. However, we concluded that when the 

letter was drafted, Department officials knew or should have known based on 

information available to them that the February 4 letter contained inaccurate 

information and could no longer be defended in its entirety. Similarly, we 

found that the Department should not have provided testimony on June 15 

before the House Committee on Oversight and Governmental Reform in a 

manner that created ambiguity and uncertainty regarding whether the 

Department was still defending its February 4 letter. 

I. Senator Grassley’s January 27, 2011, Letter to Acting Director 

Melson 

On January 27, 2011, Sen. Grassley, the Ranking Member of the Senate 

Judiciary Committee, wrote to Melson about “serious concerns that ATF may 

have become careless, if not negligent” in implementing “Project Gunrunner.” 

Sen. Grassley wrote: 

Members of the Judiciary Committee have received numerous 

allegations that the ATF sanctioned the sale of hundreds of assault 

weapons to suspected straw purchasers, who then allegedly 

transported these weapons throughout the southwestern border 

area and into Mexico. According to the allegations, one of these 

individuals purchased three assault rifles with cash in Glendale, 

Arizona on January 16, 2010. Two of the weapons were then 

allegedly used in a firefight on December 14, 2010 against 

Customs and Border Protection (CBP) agents, killing CBP Agent 

Brian Terry. These extremely serious allegations were 

accompanied by detailed documentation which appears to lend 

credibility to the claims and partially corroborates them. 

Sen. Grassley’s letter concluded with a request that ATF supervisors 

provide his staff with a briefing on Project Gunrunner by February 3, 2011.248

 

248 Sen. Grassley’s January 27, 2011, letter is attached to this report as Appendix B.

 

Although the letter nowhere mentioned Operation Fast and Furious, witnesses 

told the OIG that ATF and the Department understood Sen. Grassley’s 

references to Project Gunrunner to mean Operation Fast and Furious. For 

example, Office of Legislative Affairs (OLA) Special Counsel Faith Burton told 

the OIG that it became clear to the Department that Sen. Grassley was 
331 

specifically interested in Operation Fast and Furious rather than the broader 

southwest border firearms interdiction strategy known as Project Gunrunner. 

However, as we discuss in our analysis, the Department responded to Sen. 

Grassley’s allegations with broadly worded assertions that included within their 

scope all ATF firearms interdiction efforts, not just those made in Operation 

Fast and Furious.249

Shortly after ATF received the letter, ATF’s Chief of Legislative Affairs 

Gregory Rasnake spoke with a staff member for Sen. Grassley. According to an 

e-mail from Rasnake to ATF Deputy Director William Hoover, Melson, and 

officials in OLA, the staff member “claim[ed] to have ‘documentation’ that 

confirms their concerns,” and emphasized the importance of receiving a 

briefing by February 3. The e-mail reflects that the staff member itemized four 

issues that he wanted addressed in the briefing: two issues concerned the 

relationship between ATF and an unspecified FFL; one concerned the weapons 

found at Agent Terry’s murder scene; and one was a request for an “overview of 

Project Gunrunner.” 

Melson requested Rasnake to ask Sen. Grassley’s office for the 

documentation referenced in the letter. After discussing Melson’s request with 

James McDermond, who was then ATF’s Assistant Director for Public and 

Government Affairs, Rasnake responded to Melson that ATF could not request 

the documentation from Grassley because it would be viewed as “impolite.” 

Rasnake advised Melson that the “likelihood that they would give it to us is so 

remote, that I suggest it is not worth the risk of offending them[.]” 

Melson told the OIG that after receiving the January 27 letter he also 

asked Burton if he could meet with Sen. Grassley to “open up a line of 

communication and talk to them about what the issue is, and so we can get 

answers for him even though it was an ongoing case, you can get answers, and 

you can talk about investigative methodologies which don’t harm the ongoing 

case.” Melson stated that Burton told him that it would be against Department 

policy to discuss an open investigation and that he could not meet with Sen. 

Grassley. 

After reviewing a draft of this report, Burton told us that she does not 

recall the details of her meeting with Melson, but she understood that Melson 

wanted to meet with Senator Grassley. Burton emphasized that she would not 

 

249 The Department did not begin to make clear the distinction between Project 

Gunrunner and Operation Fast and Furious until April 4, 2011, in a letter from Assistant 

Attorney General Weich to Chairman of the House Committee on the Judiciary Lamar Smith. 

In a footnote, the Department wrote, in relevant part: “Operation Fast and Furious, which is 

one law enforcement investigation, should not be confused with Project Gunrunner, which is 

the broader initiative to deal with weapons trafficking along the Southwest Border generally.”
332 

have told Melson that he could not talk to the Senator. Rather, she said, she 

may have told him that before he spoke to Sen. Grassley, the Department 

would need to confer with the U.S. Attorney’s Office in Phoenix to decide how to 

handle possible disclosure of non-public information concerning a pending 

criminal case such as Operation Fast and Furious. 

Rasnake forwarded Sen. Grassley’s letter to Assistant Attorney General 

for Legislative Affairs Ronald Weich and other officials in OLA and the Office of 

the Deputy Attorney General on the afternoon of January 27. Rasnake also 

sent OLA the list of issues that Sen. Grassley’s staffer wanted addressed in the 

briefing. 

According to Burton, ATF referred Sen. Grassley’s letter to the 

Department because the letter “impacted larger Department equities,” 

principally the ongoing Fast and Furious criminal investigation, and therefore 

ATF was obliged to have the Justice Department review it. 

Weich asked that the letter be logged in and assigned to ATF to draft a 

response for OLA’s signature. ATF’s Office of General Counsel prepared a draft 

response and sent it to Burton on February 1, and Hoover separately sent the 

draft to Criminal Division Deputy Assistant Attorney General (DAAG) Jason 

Weinstein. ATF’s draft response sought to assure Sen. Grassley that the 

briefing it would provide would “put to rest” Sen. Grassley’s concerns about 

how ATF had implemented Project Gunrunner. Unlike the letter eventually 

drafted by the Department, ATF’s draft did not include any statements about 

ATF’s efforts to interdict weapons. The ATF’s approach to the response is 

consistent with what Hoover told the OIG: ATF wanted to meet directly with 

Sen. Grassley and his staffers because “we obviously don’t know what they 

know.” Hoover said he was told by either Burton or Senior Counsel to the 

Deputy Attorney General Brad Smith that the Department would be handling 

all contacts with Sen. Grassley and his staff.

There is no indication that ATF’s draft response was further circulated at 

Main Justice or considered in developing the Department’s response to Sen. 

Grassley. Rather, OLA, with substantial participation from officials at Main 

Justice, the Arizona U.S. Attorney’s Office, and ATF Headquarters, assumed 

responsibility for drafting the response. 

II. The Justice Department’s February 4, 2011, Response to Senator 

Grassley 

The Department sent its response to Sen. Grassley’s January 27 letter 

(and a subsequent letter from Sen. Grassley dated January 31 that is 

discussed below) on February 4, 2011. During the days between January 27 

and February 4, several iterations of the proposed response were circulated for 

review and comment among dozens of officials in the Criminal Division, the 
333 

Office of the Deputy Attorney General, the U.S. Attorney’s Office in Phoenix, 

and at ATF Headquarters. This effort was coordinated largely by Burton. 

Burton told the OIG that her area of responsibility in OLA was primarily 

to respond to requests for information to the Department from Congressional 

oversight committees. Burton stated that she had no familiarity with Project 

Gunrunner or Operation Fast and Furious when she first became involved in 

drafting the Department’s response to Sen. Grassley. She said that after 

receiving inquiries such as Sen. Grassley’s, she typically meets with 

knowledgeable officials from the Department’s divisions and components to 

gather relevant information before developing a draft response, and then 

circulates the draft back to the officials for comment. She said that it is not 

unusual for these officials to then edit the draft directly at this point. She 

stated that before the final response is sent out, “everybody who knows or is 

responsible for information that’s in that letter signs off on it.” As described 

below, this is the process that was followed in drafting the February 4, 2011, 

letter. 

We found that the following officials had direct and substantial 

participation in formulating the Department’s February 4 response to Sen. 

Grassley’s allegations: Burton, an OLA line attorney who assisted her, Weich, 

Weinstein, Smith, U.S. Attorney for the District of Arizona Dennis Burke, 

Hoover, and Melson. We also reviewed the conduct of other senior officials who 

either had a minimal role or no role at all in drafting the February 4 letter but 

who were knowledgeable about how the Department responded to Sen. 

Grassley’s January 2011 letters or were involved in the decision to withdraw 

the February 4 letter in December 2011. These officials include Attorney 

General Eric Holder, Deputy Attorney General James Cole, Chief of Staff to the 

Attorney General Gary Grindler, and Assistant Attorney General for the 

Criminal Division Lanny Breuer. 

A. Initial Effort to Gather Information on January 27 and 28 

Upon receiving Sen. Grassley’s January 27 letter, officials in both the 

U.S. Attorney’s Office and at ATF immediately gathered information about the 

conduct of Jaime Avila, who had purchased the two weapons found at the 

Terry murder scene. 

This was not, however, the first time that such an effort had been 

undertaken. As we outlined in Chapters Four and Five, immediately following 

Agent Terry’s murder on December 15, and the discovery that two firearms 

found at the scene were connected to Operation Fast and Furious, both the 

U.S. Attorney’s Office in Arizona and ATF’s Phoenix Field Division undertook an 

immediate review of Avila’s straw purchasing activity, which resulted in Avila’s 

arrest on December 15. On December 16 and 17, memorandums were 

provided to the leadership of both ATF and the Department that summarized 
334 

the Fast and Furious investigation and the details of Avila’s straw purchasing 

activity. However, despite learning about this connection between firearms 

found at the scene of Agent Terry’s murder and an ongoing ATF firearms 

trafficking investigation, the leadership of ATF and the Department took no 

further action to understand how this connection came about.250

Concerning ATF, this failure was even more acute because Acting 

Director Melson was aware, shortly after Agent Terry’s murder, about a posting 

on a website alleging a possible link between the firearms found at the scene of 

the Terry shooting and an ATF investigation. The website posting also 

indicated that Assistant Special Agent in Charge (ASAC) George Gillett was 

involved in the case and that 500 firearms had been allowed to “walk” into 

Mexico. Upon learning of the posting, Melson asked ATF Chief Counsel 

Stephen Rubenstein whether the public posting of the information may have 

violated ATF policy. Rubenstein informed Melson by e-mail on January 5, 

2011, that such a disclosure would violate ATF policies. Melson responded, 

“Thanks, Steve. I am going to forward this to [Internal Affairs].” Melson told 

the OIG that he was assured by “four or five supervisors . . . that it did not 

happen,” meaning that the information in the posting was incorrect.

 As a result, 

when Sen. Grassley’s letter arrived on January 27, the leadership at ATF 

Headquarters and at the Department knew no more on that date about the link 

between Operation Fast and Furious and the firearms at the Terry murder 

scene than they did on December 17. Thus, instead of being able to draw upon 

information gathered over the intervening weeks, the Department and ATF in 

effect were starting from scratch in preparing to respond to Sen. Grassley. 

251

 

250 As we indicated in Chapter Five, while Acting Director Melson and Deputy Director 

Hoover of ATF, and Acting Deputy General Grindler and a staff member in the Office of the 

Attorney General were aware of this information, no one shared it with Attorney General 

Holder.

251 Other stories about ATF allowing firearms to “walk” had appeared on websites 

following Agent Terry’s murder and before Sen. Grassley’s January 27 letter to Melson. ATF 

Headquarters officials were aware of these stories. For example, on January 20, 2011, 

Associate Chief Counsel Barry Orlow wrote to Hoover, Rubenstein, Office of Field Operations 

Assistant Director Mark Chait, and other senior officials about an “Open Letter to Senate 

Judiciary Committee staff on ‘Project Gunwalker’” that appeared on the examiner.com website. 

Orlow’s e-mail message contained a link to the website and stated, in part:

The letter states “ATF employees are looking to come forward and provide 

testimony and documentation about guns being illegally transported to Mexico, 

with management cognizance” and that “In order for these people to come 

forward, they require whistle-blower protection.”

Five days later, Chait and Deputy Assistant Director William McMahon received an article from 

Office of Field Operations DAD Michael Boxler that appeared on various websites entitled, “Did 

U.S. agency smuggle guns to Mexico to justify its budget?” Among the allegations reported in 

the story were that ATF officials “intentionally arranged to have hundreds of firearms ‘walked’ 

(Cont’d.)
335 

On the evening of January 27, 2011, the U.S. Attorney’s Office Criminal 

Division Chief Patrick Cunningham requested Emory Hurley, the Assistant 

U.S. Attorney (AUSA) assigned to the Operation Fast and Furious investigation, 

to write a memorandum documenting Avila’s firearm purchases “as quickly as 

possible.” Hurley was later told that he was asked to draft the memorandum 

so that Burke “would have a[n] . . . accurate accounting of Jaime Avila’s 

purchase history with regard to the Fast and Furious investigation.” Hurley, 

with the assistance of ATF Phoenix Field Division Group VII Supervisor David 

Voth, drafted the memorandum on January 28, and circulated it to ATF 

Special Agent Hope MacAllister and Voth to review for accuracy. Hurley told 

the OIG that he did not recall that MacAllister or Voth made any corrections. 

Hurley’s 3-page memorandum to Burke provided detailed information 

about all 17 of Avila’s known weapons purchases through his arrest on 

December 15, 2010. The memorandum stated that Avila had purchased three 

AK-47-type rifles, including the two weapons found at the Terry murder scene, 

on January 16, 2010, and that ATF was not notified of the purchase until 

January 19, 2010. The memorandum noted that Avila’s first known firearms 

purchase occurred on November 24, 2009, and that “[o]n that day he was in 

the company of another Fast and Furious suspect, Uriel PATINO.” The 

memorandum stated that “[o]n November 25, 2009, ATF entered AVILA in the 

ATF case management system as a suspect in the investigation.” 

Similarly, on the evening of January 27, Melson requested Hoover and 

Office of Field Operations Assistant Director Mark Chait to gather “all the 

material (documents) including all reports tantamount to the case record on 

the defendant who sold the weapons involved in the shooting with the CBP.” 

Voth forwarded numerous Reports of Investigation (ROI) and other documents 

concerning Avila to Special Agent in Charge (SAC) William Newell, who then 

forwarded them to Deputy Assistant Director for Field Operations William 

McMahon at ATF Headquarters.252

 

across the U.S. border into Mexico,” and that the officials “instructed U.S. gun dealers to 

proceed with questionable and illegal sales of firearms to suspected gunrunners.” Chait 

responded to the official who sent him the article, “I have seen this . . . the facts are untrue.”

 McMahon told the OIG that he reviewed 

these materials before forwarding them to Chait. Chait told the OIG that he 

recalled receiving these materials from McMahon, but added that he did not 

believe he read them at that point and was not certain when he did read them. 

We found no e-mail records indicating that Chait forwarded these ROIs to 

252 McMahon stated that he was not allowed to access Fast and Furious documents, 

including the ROIs, in N-Force because access was restricted to those on the 6(e) list. 

McMahon stated that he and others at ATF Headquarters were not granted access to these case 

materials through N-Force until sometime after the Department had responded to Sen. 

Grassley.
336 

Hoover or Melson. However, after reviewing a draft of this report, Chait’s 

attorney told the OIG that on January 28 Chait provided both Hoover and 

Melson hardcopies of the Avila ROIs, along with a forensics report, in binders 

that he prepared. Melson told us that the first time he read any ROIs from the 

case was after February 4 and probably sometime in the beginning of March 

2011. However, after reviewing a draft of this report, he told the OIG that he 

was travelling for at least two weeks between February 4 and March 1, 2011. 

Chait told the OIG that although the request for documents from the 

Phoenix Field Division was limited to information about Avila, he believed that 

McMahon was also asking Newell, Needles, and Voth broader questions about 

the Fast and Furious investigation and Grassley’s allegation that ATF had 

“sanctioned the sale of hundreds of assault weapons to suspected straw 

purchasers.” According to Chait, the Phoenix Field Division was “regularly” 

telling ATF Headquarters that it had not sanctioned sales or “coerced” FFLs to 

sell weapons to straw purchasers. Newell told the OIG that Chait called him 

“20, 30 times a day” with questions during this period. Newell stated that he 

understood Sen. Grassley’s allegations to be that ATF “had let guns walk and 

that in essence that we had provided guns to the suspects,” which he told 

Chait was false. 

McMahon stated that did not recall whether he discussed these broader 

issues with Newell before the February 4 response, but said “there was a point 

where I actually had to say Bill, are you sure that this did not happen.” 

McMahon said he could not recall whether he asked this direct question to 

Newell before or after the February 4 response was issued. 

Newell’s e-mails from the period of January 27 through February 4, 

2011, reflect that he was receiving information from his subordinates about 

Avila and the whistleblower who had met with Sen. Grassley’s staffers and 

passing that information along to ATF Headquarters. In forwarding the ROI to 

McMahon that referred to Avila’s purchase of the 3 AK-47 style rifles on 

January 16, 2010 (ROI 67), Newell wrote in a January 27 e-mail: 

As you can see it was due to an SA’s following up on another straw 

purchaser’s activity that we came across this info, 3 days after the 

sale. Buying 3 AKs does not rise to the level of initiating a criminal 

investigation especially when at the time we were not aware of 

Avila[’]s role. It was after the fact when he started buying more 

guns and was seen with Patino that we considered him part of this 

same organization. After the sale. 

Newell’s e-mail was inaccurate. ATF knew about Avila’s role in Operation 

Fast and Furious prior to January 16 due to his November 2009 weapons 

purchases and association with Patino. Specifically, an earlier ROI 

documented Avila and Patino’s November 24, 2009, purchase of five firearms 
337 

each (ROI 12). According to the ROI, “while the firearms were purchased at 

different times of the day both PATINO and AVILA were together during both 

transactions.” The ROI also stated that ATF surveillance confirmed that Avila 

and Patino were traveling together in the same vehicle. Newell received this 

earlier ROI on January 28 and forwarded it, along with 30 other documents 

about Avila, to McMahon later that day without correcting his earlier incorrect 

information about Avila. As Hurley’s January 28 memorandum indicated, 

Avila was entered as a suspect in ATF’s case management system the day after 

he was seen purchasing weapons with Patino. McMahon forwarded both of 

Newell’s e-mails – the January 27 message with the inaccurate information 

about Avila and the January 28 e-mail with the ROIs that showed the 

information to be inaccurate – to Chait, who according to Chait’s attorney, 

provided the hardcopies of the ROIs to Melson and Hoover. 

Although Hurley had not created his memorandum summarizing Avila’s 

purchases until the next day, Newell had access to the ROIs described above 

and other information in ATF’s databases concerning Avila on January 27, 

when he first wrote to McMahon. Records show that Newell would have known 

no later than January 28 that ATF had designated Avila a suspect on 

November 25, 2009. Voth sent the Hurley memorandum to Newell for review 

on January 28. In addition, Voth wrote to Newell on January 28 that “Jaime 

Avila was first entered into N-Force as a suspect (11/25/2009).”253

As noted, Newell sent ROI 12 to McMahon, who forwarded it to Chait, on 

January 28, so ATF Headquarters also had information showing that Newell’s 

statement about Avila the day before was not accurate. 

The OIG found no e-mail discussions prior to February 4 between Newell 

and either McMahon or Chait about the broader allegations in Sen. Grassley’s 

January 27 letter. However, Newell clearly expressed his position to McMahon 

in a February 10, 2011, e-mail that followed ATF’s receipt of a February 9 letter 

from Sen. Grassley concerning the same allegations. Newell wrote: 

. . . I believe we have provided all the information that answers 

these questions or “allegations”. Nothing has changed in our firm 

stance which is we NEVER “sanctioned” the sale of “suspected 

straw purchased” firearms; we NEVER instructed the FFL to allow 

this; and we NEVER knowingly allowed guns to “walk” to Mexico. 

What does concern me greatly is the obvious unauthorized release 

 

253 In fact, Newell had received information much earlier than January 28, 2011, about 

Avila’s status as a suspect in the investigation. A February 5, 2010, memorandum from Voth 

to McMahon requesting authorization to seek Title III electronic surveillance of telephonic 

communications was routed through and approved by Newell. That memorandum states that 

ATF identified Avila as a straw purchaser in November 2009.
338 

of internal ATF documents and other sensitive information about 

an on-going case involving Grand Jury information. (Emphasis in 

original). 

On January 28, 2011, at least one meeting was held among ATF and 

OLA officials to discuss Sen. Grassley’s January 27 letter. According to 

Burton’s contemporaneous handwritten notes, she, Rasnake, and Melson 

attended one meeting, and two additional OLA officials may have joined them 

in a second meeting. Burton stated that Hoover may have attended one of 

these meetings as well, although her notes do not reflect whether he did. 

Burton’s notes from January 28 and another meeting she had on February 1, 

2011, are important because Burton and others relied on the notes in drafting 

the February 4 response, and the Department quoted from the notes in its 

December 2 letter withdrawing the response to demonstrate that it had relied 

upon the statements of Melson and Hoover in preparing the response.254

Burton’s notes from January 28 state that “100’s of guns made it to 

Mexico.” They also reflect that ATF “knew the straw purchasers were part of 

crim enterprise to get guns to Mex” and “we were following this to get to the 

top” but that “we also didn’t know they were straw purchasers at the time” and 

that “we didn’t let guns walk.” Concerning Sen. Grassley’s allegation that the 

ATF “let guns go to Mexico,” the notes state that “ATF had no probable cause to 

arrest the purchaser or prevent action.” The notes further state that the two 

firearms found at the scene of the Terry shooting “were purchased by a suspect 

in the case” but that there was no forensic evidence linking the weapons to the 

shooting and that the “forensics are inconclusive.” 

Melson told us that the conflicting statements about whether or not 

investigators knew that the gun buyers, including Avila, were straw purchasers 

at the time of sale may have resulted from inaccurate or inconsistent 

information that he received from his subordinates. He also suggested that the 

statements reflected a “definitional issue,” stating that “they had identified the 

guy as purchasing some weapons but had not necessarily determined that he 

was a straw purchaser, even in the broad sense of the term, just that he 

bought some guns, I think.” 

Burton told us that she did not know specifically which ATF official made 

the statements recorded in her notes, and that her practice is to indicate the 

speaker of a statement only if someone else disagrees with it. Melson told us 

that he recalled that Rasnake did most of the speaking during meetings with 

 

254 See December 2, 2011, Letter from Deputy Attorney General James Cole to 

Chairman Darrell E. Issa and Ranking Member Charles E. Grassley at p. 2. The letter is 

attached to this report as Appendix F.
339 

OLA officials, and that he had no recollection of making several specific 

statements recorded in Burton’s notes. However, he told us that he did state 

words to the effect, “We didn’t let guns walk.” He stated that he understood 

the term “walk” to mean ATF providing weapons to suspects. 

Smith also spoke by phone with Melson on January 28 and took notes of 

the conversation. Smith had been assigned to the Office of the Deputy 

Attorney General and given the “ATF portfolio” about 7 weeks earlier. 

According to Smith’s notes, Melson told him that “our field office is gathering a 

file” and that “I will look at it personally.” Melson told us that he asked to 

review the files personally because he had heard through blogs and other 

sources that his subordinates had been misrepresenting and “filtering” 

information to him, although he added that he never found an instance in 

which this had occurred. 

Smith’s notes also state that Melson said, “Agents assured me that we 

[did not] know the guy was a straw purchaser at the time of purchase,” a 

reference Smith understood to be to Avila. As we discuss in Chapter Five, 

however, Smith wrote an e-mail to then-Acting Deputy Attorney General 

Grindler on December 17, 2010, to advise him that the weapons found at Agent 

Terry’s murder scene were bought by a suspect in Operation Fast and Furious. 

In that e-mail, Smith wrote that Avila was “a ‘straw firearms purchaser’ that 

ATF and USAO [U.S. Attorney’s Office] have been investigating since November 

2009 as part of its larger ‘Fast and Furious’ operation.” Smith told us that he 

did not remember this information when he later assisted in drafting the 

February 4 response to Sen. Grassley. 

Although not reflected in his notes, Smith told the OIG that he recalled 

that Melson “was very adamant in indicating that the allegations were false, 

that ATF never knowingly allowed guns to walk across the border to Mexico 

where they had probable cause to make the stop.” Smith stated that Melson 

told him the allegations were false because they were contrary to ATF policy – 

not based on Melson’s personal knowledge of how Operation Fast and Furious 

had been conducted. Melson told the OIG that he had made the statement to 

Smith based both on ATF policy and assurances from the Phoenix Field 

Division, as relayed to him through McMahon, Chait, and Hoover, whom he 

described as the “operational people in our office.” 

B. Senator Grassley’s Meeting with the Attorney General on 

January 31 and his January 31 Letter to Acting Director 

Melson 

Sen. Grassley followed up his January 27 letter with another letter to 

Melson on January 31. The follow-up letter alleged that an official in the ATF’s 

Phoenix Field Division had “questioned” one of the ATF special agents who 

provided information to Sen. Grassley’s staffers about Project Gunrunner. The 
340 

letter warned Melson against interfering with ATF employees’ right to furnish 

information to Congress and asked that he ensure that “ATF employees are 

aware of their rights and whistleblower protections and that ATF managers are 

accountable for respecting any protected disclosures.”255

Also on January 31, Sen. Grassley had a meeting with Attorney General 

Holder. During the meeting, Sen. Grassley provided Holder with both the 

January 27 and 31 letters. Holder told the OIG that he did not recall what 

Sen. Grassley may have said about the letters during the meeting. Weich, who 

also attended the meeting, wrote in an e-mail message that afternoon to two of 

Holder’s aides that Sen. Grassley had complained to Holder about intimidation 

of a whistleblower and asked Holder to “look into it.” According to Weich’s email, Holder told Sen. Grassley that he would. Neither Weich nor Holder recall 

any substantive discussion with Sen. Grassley that day about the allegations in 

the January 27 letter concerning ATF’s failure to interdict weapons bought by 

suspected straw purchasers. 

Senior Department officials we interviewed told us that the portion of the 

February 4 response to Sen. Grassley that addressed the whistleblower issues 

in Sen. Grassley’s January 31 letter played no role in the Justice Department’s 

eventual decision to withdraw the February 4 response. 

C. The Department Drafts a Response to Sen. Grassley’s Letters 

Below we describe how the Department drafted its response to Sen. 

Grassley’s January 27 and January 31 letters. This process was generally 

coordinated through OLA. Weinstein, Burke, Hoover, Melson, and officials 

from the Office of the Deputy Attorney General had substantive participation in 

formulating the response, either by proposing language or by approving drafts. 

1. Weinstein and Burke React to Sen. Grassley’s Letters 

On the evening of January 31, 2011, Burke received both of Sen. 

Grassley’s letters from the U.S. Attorney’s Office Public Information Officer, 

who received them from a local newspaper reporter seeking a comment from 

Burke about Sen. Grassley’s allegations. Burke forwarded both letters to 

Weinstein, stating in his e-mail, “Grassley’s assertions regarding the Arizona 

investigation and the weapons recovered at the [CBP] Agent Terry murder scene 

are based on categorical falsehoods. I worry that ATF will take 8 months to 

answer this when they should be refuting its underlying accusations right 

now.” Weinstein told us this was the first time he saw the letters. 

 

255 Sen. Grassley’s letter is attached to this report as Appendix C.
341 

Weinstein forwarded the letters to Assistant Attorney General Lanny 

Breuer without comment a few minutes later. Breuer wrote back to Weinstein 

to ask, “What’s this about? What did Grassley say?” Breuer told us that his 

response to Weinstein meant that he either was unable to read the letters or 

had not read the letters at that time, and that he did not recall when he in fact 

read the letters. Weinstein replied to Breuer: 

He suggests that ATF only prosecuted straws in the Fast and 

Furious case as opposed to higher-level members of the 

organization; he said that ATF “sanctioned” sales to straw 

purchasers in that case; and he asserts that one of the weapons 

from that case was used to kill CBP agent Brian Terry. 

The best briefer on Fast and Furious really is the AUSA on the 

case, who is very sharp. Otherwise it should be someone like Bill 

Newell, the Phx SAC and soon-to-be Mexico Attache, who is 

fantastic and knows the case really well, or Billy Hoover. 

As a mitzvah for ATF, I was going to suggest that you might send a 

brief email to Ken, offering any assistance they need in preparing 

for the Grassley briefing. 

Weinstein then responded to Burke that he agreed with Burke, and that 

he would be happy to work with ATF on preparing to brief Sen. Grassley’s 

staffers.256

Purchased at [FFL1] before the investigation began. 

 Weinstein quickly wrote to Burke again, asking, “[By the way], the 

assertion that one of the F&F [Operation Fast and Furious] guns killed Terry is 

just false, right?” Burke responded: 

New (warped) standard – you should have stopped this gun from 

going to Mexico even before your investigation began, even though 

the sale is legal, even though the dealer has no reporting 

requirement, even though the dealer never even volunteered this 

info. 

Weinstein conveyed Burke’s inaccurate information about the timing of Avila’s 

gun purchases in another e-mail message to Breuer, stating, “The weapon used 

to kill agent Terry was purchased from the FFL before the Fast and Furious 

investigation ever began – so ATF can and should strongly refute that.” 

 

256 Weinstein had been scheduled to accompany Breuer, Burke, and Associate Deputy 

Attorney General Deborah Johnston to Mexico for meetings with government officials from 

February 1 through 3, but was unable to go for personal reasons. 
342 

Burke’s statement that Avila had purchased the weapons found at the 

Terry murder scene “before the investigation began” was incorrect. Weinstein 

told us that he did not know that the statement was incorrect when he 

conveyed the information to Breuer. Burke’s statement is contradicted in 

Hurley’s January 28, 2011, memorandum to Burke concerning Avila’s history 

of gun purchases during the Fast and Furious investigation. As noted, the 

memorandum specifically stated that Avila was entered into ATF’s case 

management system “as a suspect in the investigation” in November 2009, 

nearly 2 months before he purchased the weapons later found at the Terry 

murder scene.257

Hurley sent Burke an “electronic copy of the January 28 memo” on 

February 10, 2011. However, the OIG reviewed e-mails, a voicemail message, 

and other material that strongly suggests that Burke received and read 

Hurley’s January 28 memorandum on January 28, prior to his e-mail exchange 

with Weinstein on the evening of January 31.

 Burke also incorrectly stated in his e-mail that “the dealer 

never even volunteered this info.” As Hurley’s memorandum to Burke stated, 

“This notification [of Avila’s weapons purchase] came only through the 

cooperation of the FFL, as this long gun only purchase would not trigger any 

affirmative reporting requirement.” 

258

Based on the evidence, it appears that Burke had received and read the 

Hurley memorandum by January 31, when he conveyed the incorrect 

information to Weinstein, and that he was sufficiently aware of the information 

contained in it from other sources, such as from the press conference he held 

 In a voicemail message from 

Cunningham to Hurley earlier that day, Cunningham had asked Hurley to 

meet with either him or Burke “about our inquiry last week on ATF.” In his 

message, Cunningham stated that Burke “very much appreciated your 

material. The memo that you did and all the stuff that you assembled . . . was 

indeed very helpful.” In any event, as discussed in Chapter Five, Burke had 

been aware as of December 15, 2010, that the weapons found at the Terry 

murder scene “connect[ed] back” to Operation Fast and Furious. Additionally, 

when Burke was interviewed by congressional staffers on December 13, 2011, 

he stated that he assumed he would have read Hurley’s memorandum when he 

received it, “especially in light of its content.”

 

257 Moreover, just a few days earlier, on January 25, 2011, Burke held a press 

conference to announce the Operation Fast and Furious indictment and his office issued a 

press release stating: “The Avila indictment alleges that from approximately September 2009 

to December of 2010, the defendants conspired to purchase hundreds of firearms, including 

AK-47s, to be illegally exported to Mexico.”

258 Burke resigned as U.S. Attorney in August 2011 and, through counsel, declined the 

OIG’s request to be interviewed about his involvement in drafting the February 4, 2011, letter 

to Sen. Grassley.
343 

to announce the Operation Fast and Furious indictments just 6 days earlier. 

Burke acknowledged in his December 2011 interview with congressional 

staffers that his statement that Avila had purchased the weapons before the 

investigation began was “inaccurate,” but said that it was not intentional. He 

further stated that his incorrect statement “reflects that I didn’t fully know the 

facts at that time.”259

Weinstein stated that he learned the next day in a conversation with 

Hoover that Burke’s statement that Avila purchased the weapons before the 

investigation began was incorrect. Weinstein told the OIG that he would not 

have expected Burke to know “the details of even a purchase of significance 

like that” or when the purchase was made, and did not give Burke’s error 

much weight. Weinstein also stated, “I would expect him to know whether the 

people he was employing were leading an investigation in which they were 

trying to get guns or not trying to get guns, and I’d focus more on that.” He 

stated that “the rest of Burke’s point [in the January 31 e-mail] was 

reasonable,” and that Burke’s error did not diminish Weinstein’s overall 

confidence in Burke’s assurances that Sen. Grassley’s allegations were false. 

He told us that his continued confidence in Burke was supported by the fact 

that Hoover and Melson also were providing the same assurances that guns 

were not being allowed to “walk.” 

Weinstein also said he believed that “at some point this got cleared up for 

Mr. Burke and he continued to assert and insist in fact that . . . the Grassley 

letter was false and that our letter wasn’t strong enough.” However, as 

 

259 We noted three other incidents that are relevant to our assessment of Burke’s 

conduct. 

 

 

 

 

 

 

Second, on August 11, 2011, the OIG initiated an investigation of an allegation that a 

Department employee provided to a member of the media a copy of a May 2010 undercover 

operation proposal drafted by ATF Special Agent John Dodson. Burke subsequently admitted 

to the OIG that he provided the memorandum to a reporter at the reporter’s request.

Lastly, the OIG interviewed members of Agent Terry’s family and learned that Burke 

provided the family members with inaccurate information about Agent Terry’s shooting. 

Specifically, members of the family told the OIG that in a meeting with Burke on March 10, 

2011, he told them that the weapons found at Agent Terry’s murder scene were sold out of a 

Texas shop, not an Arizona shop. But on December 15, 2010, Burke wrote an e-mail message 

to Monty Wilkinson in the Office of the Attorney General that “[t]he guns found in the desert 

near the murder [sic] [CBP] officer connect back to the investigation we were going to talk 

about – they were AK-47s purchased at a Phoenix gun store.”
344 

discussed below, Burke again inaccurately stated on February 4 that Avila had 

purchased the weapons found at the Terry murder scene before the Operation 

Fast and Furious investigation began. We found that Burke’s inaccurate 

statements so clearly demonstrated a willingness to make assertions without 

regard for obvious and undisputed facts that Weinstein should have 

scrutinized with care any further representations Burke made concerning 

Operation Fast and Furious. 

When we asked Weinstein whether he ever told Breuer that the 

information he had forwarded to him on January 31 about Avila’s weapons 

purchase occurring before the investigation began was incorrect, Weinstein 

replied, “I’m sure I did. I just don’t remember when or how.” Breuer told us 

that he did not know at the time that the information Weinstein had forwarded 

to him about Avila’s weapons purchase was incorrect. Breuer stated that, as 

with other information about the case, he learned about this later through 

“public revelations.” 

2. The February 1, 2011, Conference Calls 

On the afternoon of February 1, 2011, Burton participated in two 

conference calls to discuss the allegations in Sen. Grassley’s letters. The first 

call was with Hoover and Weinstein, and the second was with only Weinstein. 

According to e-mail records, Burke was scheduled to participate in the first 

call, but was unable to because he was just arriving in Mexico City. Burton 

took handwritten notes during both conference calls. Burton’s notes include, 

in part, the following statements from her conference call with Hoover and 

Weinstein: 

• “ATF doesn’t let guns walk”; 

• “We always try to interdict weapons purchased illegally”; 

• “We try to interdict all that we being [sic] transported to Mexico”; 

• “On 11/24/09 he [Avila] was known to be a straw, but we were not 

aware of his 1/16/10 purchase until afterwards”; and 

• “We don’t know that these weapons left the US”. 

Burton’s notes are significant because the Department cited several excerpts 

from them in the December 2 letter explaining how it came to include 

inaccurate information in its February 4 letter.260

 

260 The Department’s December 2, 2011, letter withdrawing the February 4 letter 

attributes statements excerpted from Burton’s January 28 and February 1 notes to either 

Melson or Hoover.
345 

Burton said that she did not remember whether these statements in her 

notes from the February 1 meeting with Weinstein and Hoover had been made 

by Weinstein, Hoover or both. As with Burton’s handwritten notes from 

January 28, 2011, Burton’s practice was not to identify specific speakers 

unless there was disagreement about what was being stated. Burton told us 

that she uses her notes as the “building blocks” for drafting letters, and that 

her intent is to write down verbatim what is stated as best she can. She stated 

that “you have to know exactly what they are saying and ask questions as 

needed so you can try and get your arms around . . . what the facts are, then 

draft a response accordingly.” 

Weinstein described the telephone call with Hoover and Burton as a 

“three-way conversation” and told us that “all of the substantive information” 

in Burton’s notes was provided by Hoover. 

The OIG showed Hoover a copy of Burton’s notes from his February 1 

conversation with Weinstein and her. Hoover stated that Burton’s notes 

accurately captured what had been said during the telephone call. He told the 

OIG that he thought Weinstein was the one who said that “ATF doesn’t let guns 

walk,” and that he (Hoover) made the other statements quoted above.261

Hoover told the OIG that at this time, he understood the term “walk” or 

“gun walking” to mean when ATF places firearms in the hands of a suspect, 

and that based on this definition, he agreed with the statement that “ATF 

doesn’t let guns walk.”

 After 

reviewing a draft of this report, a Department official stated that prior to 

issuing the December 2 letter, she asked Hoover by telephone whether he had 

made the statements in Burton’s notes and that Hoover said he had. Another 

Department official said he asked Weinstein who had made the statements, 

and that Weinstein answered that Hoover had made them. 

262

Following this conversation with Hoover and Weinstein, Burton spoke 

again with Weinstein. According to Weinstein, the purpose of this second call 

was for Weinstein to help Burton “interpret” what had been discussed during 

the prior conversation. During this second telephone conversation with only 

 He stated that he and Weinstein did not discuss 

what the term “walking” meant in their discussions about responding to Sen. 

Grassley’s letters. 

 

261 Hoover said that he would not have referred to ATF as “ATF,” but rather as “we.”

262 Hoover stated that he learned some time later that the Department had a much 

broader definition of “gun walking” than the definition he and other ATF officials used. After 

reviewing a draft of this report, Melson told the OIG that Hoover instructed him on the 

narrower definition of gunwalking, which according to Melson “colored my analysis of the 

allegations initially.”
346 

Weinstein, Burton’s notes included a statement that “[Defendants] in case [34] 

are not all straw [purchasers]. ATF tried to work up chain. 2 top honchos. 

 Goal always was to take down the [organization] – not just go 

after straws.” The notes then reflect that Weinstein said, “interdict whenever 

poss before” and “Going after higher level with direct ties to Sinaloa cartel. 

They didn’t sanction the sale but tried to build a case.” Additionally, Burton’s 

notes included the following statement: 

Straw purchaser of that gun later became a [defendant] but wasn’t 

known to be a sp [straw purchaser] at the time of the purchase. 

He’s now been indicted in F&F [Fast and Furious]. 

This statement indicating that Avila was not known to be a straw 

purchaser at the time of purchase conflicted with Burton’s notes from the 

earlier conversation with Hoover in which she wrote that Hoover said Avila was 

“known to be a straw” on November 24, 2009.263

According to Hoover, Burton’s notes from her call with Weinstein also 

included statements that went beyond the scope of what the three had 

discussed earlier. For example, the notes state “ATF didn’t sanction sp [straw 

purchasers] [and] allow them to go to Mexico – [h]undreds of guns were 

recovered; others weren’t interdicted.” Hoover said he did know what was 

meant by the statement. 

 Weinstein told us that he 

understood Hoover to mean in this earlier conversation that Avila was only a 

suspected straw purchaser, and that he could not yet be proved to be a straw 

purchaser, at the time of the purchase. Weinstein stated that “[Burton] wrote 

it, not me,” and that he would have written the notes differently. When we 

showed Hoover a copy of Burton’s notes from her discussion with Weinstein, he 

told the OIG that this version of the statement was not accurate and could not 

be reconciled with what he had told Burton during the first conversation. 

As the notes also show, and as Weinstein confirmed to us, Weinstein also 

suggested who from ATF could brief Sen. Grassley’s staffers, and that 

Weinstein “could go” to the briefing as well.264

 

263 This statement is, however, consistent with Brad Smith’s notes of January 28 from 

his conversation with Melson, in which he wrote “Agents assured me that we [did not] know the 

guy was a straw purchaser at time of purchase.”

264 On the evening of February 1, Breuer e-mailed Weinstein to ask him to “Let me 

know what is going on with this” and to thank Weinstein for “getting involved.” Weinstein 

replied that Burton had drafted a response, which he “revised to make a little tougher.” He 

added that ATF would provide a briefing on Project Gunrunner, adding, “I don’t think they’ll 

ask us to participate, but if they do, are you okay with my going?” Breuer replied, “Sure but 

you probably shouldn’t unless absolutely necessary.” Weinstein, along with ATF Chief of the 

(Cont’d.)
347 

Weinstein told the OIG several times that he found Hoover and Burke’s 

assurances about Sen. Grassley’s allegations and the Department’s proposed 

response compelling. He stated that “the assurances that we got in the course 

of putting the letter together from Mr. Hoover and Mr. Burke and their staffs 

were so categorical and emphatic and repeated and unequivocal that the 

allegations in the letter were false and that the information in Grassley's letter 

were false and that the information in our draft was accurate, that I believed 

the information they were providing to us. And so I believed that every word of 

our letter was accurate.” 

Weinstein cited his own experience as a basis for his confidence in 

Burke’s assurances, stating, “I can’t emphasize enough that in my experience 

both working for a number of different U.S. Attorneys and now in my job 

dealing with them all the time, it’s my experience that U.S. Attorneys don’t 

make representations to Main Justice about factual matters unless they’re 

pretty damn sure that they’re right.”265

In contrast with Weinstein’s stated reliance on Hoover and Burke for 

information about Operation Fast and Furious, as discussed in Chapter Three, 

Weinstein was personally aware that ATF had failed, in Operation Wide 

Receiver, to interdict weapons that had been purchased illegally despite the 

legal authority and the ability to do so.

 He also stated that the initial version of 

the February 4 letter was drawn from information provided by ATF, and that 

Hoover and his staff endorsed every subsequent draft of the letter that they 

reviewed. 

266

 

Firearms Operations Division Stuart Lowrey, briefed Sen. Grassley’s staffers on February 10, 

2011. Burton and McDermond also attended the briefing.

 Burton stated that during meetings 

with Weinstein about Sen. Grassley’s letters and throughout Weinstein’s 

involvement in drafting the response, he never mentioned Operation Wide 

Receiver or the fact that ATF’s Phoenix Field Division had failed to interdict 

weapons purchased illegally in that investigation. Weinstein told the OIG that 

Operation Wide Receiver “had not come to mind as being possibly relevant to 

this response” because he believed Sen. Grassley’s allegations were limited to 

Operation Fast and Furious. He described his awareness of Operation Wide 

Receiver during his work on the February 4 letter as residing between two 

extreme points: 

265 Weinstein specifically cited his experience with Burke, stating that “unlike Hurley 

and Newell for whom I had limited encounters from which I drew grand conclusions, I had . . .

a lot of experience with Dennis [Burke].”

266 As discussed in Chapter Three, Breuer also was aware that these tactics had been 

employed by ATF in Operation Wide Receiver.
348 

One, is that I actually did that analysis and decided unilaterally 

not to bring it to anyone’s attention. That didn’t happen. The 

other is that I had a complete bout of amnesia and forgot the 

existence of Wide Receiver. That didn’t happen either. I’m 

somewhere in the middle. I remembered, I wasn’t an amnesiac, I 

remembered that there was a case called Wide Receiver in which 

guns walked which I had reacted very strongly earlier and brought 

to ATF’s attention. But I was so focused on the Fast and Furious 

allegations and the insistence by the people that did the case that 

they weren’t, this wasn’t a gun walking case and I had viewed Wide 

Receiver as just ancient and aberrant. I just didn’t think about 

Wide Receiver as we were responding to this. Had I thought about 

it, I’m quite certain that I wouldn’t have taken it upon myself to do 

that analysis. I would have invited other people to participate in it 

and make their own judgment. But I didn’t think about it. 

He added that he considered Operation Wide Receiver to be an “aberration” 

that happened under a different “regime” – meaning a different U.S. Attorney, 

and a different Director and Deputy Director of ATF. Weinstein told the OIG 

that his view of Operation Wide Receiver as an aberration was based on his 15 

years of experience as a prosecutor.267

Weinstein stated that he was unaware that Operation Wide Receiver had 

been conducted under Bill Newell, the same SAC who oversaw Operation Fast 

and Furious. When asked whether the fact that Operation Wide Receiver had 

been run out of the same ATF field division as Operation Fast and Furious 

made the use of the same tactics more likely, Weinstein said it did not. He 

stated that he viewed Operation Wide Receiver as “such an extreme aberration 

that I would have been more likely to believe that aliens had come down and 

seized these guns than that the agents had let them go.” He also said that 

“employing the use of those tactics is so irresponsible and is so aberrational 

that . . . I just wouldn’t have thought that anyone would employ that same set 

of tactics that I’d never encountered before or again.” 

As we discuss later in this chapter, Weinstein did not share his 

knowledge of ATF’s use of flawed tactics in Operation Wide Receiver with senior 

Department management until early March 2011, when he learned of 

 

267 As recently as January 24, 2011, 3 days before Sen. Grassley’s first letter, 

Weinstein had written to Criminal Division colleague James Trusty to ask whether the 

Operation Fast and Furious indictment was being unsealed along with the case “we made with 

the cooperating FFL, where we inherited it after a lot of guns had been permitted to walk . . . ?” 

Weinstein told the OIG that the case he was referring to was Operation Wide Receiver. In fact, 

Operation Fast and Furious was unsealed along with a different investigation due to the use of 

a common weapons drop location.
349 

additional, more recent “gun walking” incidents. He stated that these incidents 

prompted him to tell senior management “not only that we needed to tell 

Congress about those cases since they were on our watch, but that there was 

also this earlier case.”268

Burton, Weich and other senior Department officials, including Attorney 

General Holder, Deputy Attorney General Cole and Principal Associate Deputy 

Attorney General Lisa Monaco stated that they did not learn about Operation 

Wide Receiver until after the February 4 letter was issued. We discuss the 

relevance of Operation Wide Receiver to the February 4 letter later in this 

chapter. 

3. Disagreement Over Scope of the Response to Sen. 

Grassley’s Allegations 

Burton produced the first draft of the Department’s response to Sen. 

Grassley’s letters on February 1, 2011. This draft contained the earliest 

version of two sentences that appeared in the final February 4 letter to Sen. 

Grassley, the first of which Cole described to us as “ambiguous,” and the 

second of which senior Department leadership would later conclude was not 

accurate. The first of these two sentences, as it appeared in the first draft, 

stated: 

We want to assure you that, contrary to the allegations reported in 

your letter, ATF has not “sanctioned” the sale of assault weapons 

to suspected straw purchasers, who then transported the weapons 

throughout the southwest border area and into Mexico. 

After noting the Department’s “long-standing policy against the disclosure of 

non-public information about pending criminal investigations,” the second 

sentence stated: 

We can advise you, however, that ATF makes every effort to 

interdict weapons that have been purchased illegally and prevent 

their transportation to Mexico. 

 

268 A March 21, 2011, e-mail message from Weinstein to Associate Deputies Attorney 

General Deborah Johnston and Matthew Axelrod stated that there was “some agreement that 

we should try to add some language to our congressional responses that captures, with 

appropriate disclaimers, the fact that to date ATF has discovered only a few (non-F&F) 

instances where agents intentionally let guns ‘walk.’” The e-mail message did not explicitly 

reference Operation Wide Receiver. As we discuss later in this chapter, Breuer also failed to 

inform the Department’s leadership of his knowledge of Operation Wide Receiver until well after 

February 4.
350 

This language – “ATF makes every effort to interdict weapons that have been 

purchased illegally and prevent their transportation to Mexico” – remained 

intact throughout the drafting process and was most frequently cited by 

Department leadership, including Attorney General Eric Holder and Deputy 

Attorney General Cole, as the inaccuracy that caused the Department to 

withdraw the letter on December 2, 2011. Burton told the OIG that she based 

this statement on her notes from earlier that day. Burton’s first draft made no 

mention of the Terry shooting or the specific guns found at the murder scene. 

On the evening of February 1, Burton forwarded her draft to Weinstein to 

get his comments before circulating it to ATF Headquarters and the U.S. 

Attorney’s Office. She stated that Weinstein “joined in” the drafting process 

because he had experience prosecuting gun trafficking cases and working with 

ATF, and that as a Deputy Assistant Attorney General, Weinstein was at an 

“appropriate . . . policy level to deal with Congressional issues of this nature.” 

She added that, given the 3-hour time difference between Washington, D.C., 

and Phoenix, it was “helpful to have someone here who could help us figure out 

how best to respond.” 

Weinstein’s comments to Burton’s first draft, along with his subsequent 

e-mails to Burton and others, show that Weinstein believed the response 

should more forcefully rebut what he perceived to be Sen. Grassley’s allegation 

concerning the weapons recovered at the Terry murder scene, which he 

characterized as “the most salacious and damaging to ATF, both short- and 

long-term.” ATF Office of Legislative Affairs Chief Rasnake wrote to Weinstein 

to thank him for his support. Weinstein replied, “Thanks. My boss and I are 

fervently supportive of ATF, and these allegations are infuriating.” 

As described below, Weinstein’s desire to vigorously address the issue of 

the weapons found at the Terry murder scene was shared by Burke and others, 

but was at odds with Burton’s view of the letter’s purpose and how it should be 

written. This debate over whether and to what extent the Department should 

address in its response the link between the weapons found at the Terry 

murder scene and Operation Fast and Furious came to dominate the drafting 

and editing process. 

On February 2, Burton circulated her first draft of the response to 

Weinstein, Burke, Melson, and others. In her transmittal e-mail, Burton wrote 

that the draft was “intended to clarify the record and the boundaries of the 

briefing” that Sen. Grassley’s staffers had requested. Burton told the OIG that 

by sending the letter to Sen. Grassley before the briefing, the Department could 

establish that the briefing would be about Project Gunrunner generally, and 

not about any specific investigation or about the Terry shooting. She stated 

that Grassley’s senior staffer was skilled and experienced, and that it would be 

“unwise and unfair to go up there with a briefing that wasn’t going to meet his 

expectations without telling him in advance.” 
351 

Weinstein circulated his edits to the first draft within a few minutes after 

Burton circulated her draft, indicating in his transmittal e-mail that the 

Department should “consider making a more forceful rebuttal” to Sen. 

Grassley’s allegations. In his edits he proposed including language “to the 

effect that any suggestion that ATF ‘sanctioned’ the purchase of the guns found 

at the Terry shooting, or any unlawful purchases of firearms, is false.” 

Weinstein told us that he proposed this language based on the categorical 

assurances he had been receiving from Hoover and others that ATF had not 

sanctioned any unlawful purchases of weapons, a point he believed needed to 

be made more forcefully. Weinstein wrote to Burke to ask him to send an email to Johnston and Smith in the Office of the Deputy Attorney General 

saying that Burke agreed that the response needed to be more forceful. 

Weinstein added, “Your push on this will carry a lot of weight.” Weinstein then 

separately contacted Smith and Johnston to inform them that he was “pushing 

back against OLA’s desire to say as little as possible” in the letter. Weinstein 

was referring to Burton’s reluctance to include any details about pending 

investigations, including the investigation of Agent Terry’s murder. 

By the afternoon of February 2, the draft responses were being forwarded 

to several officials in OLA, ATF Headquarters, and the U.S. Attorney’s Office. 

The OIG’s review of e-mails during this period showed that in addition to 

Melson and Hoover, other officials within the ATF Director’s Office, the Office of 

Public and Government Affairs, and the Office of Field Operations were also 

receiving drafts. Officials in the Office of Field Operations who received draft 

responses included Chait and McMahon. Chait and McMahon were the 

Phoenix Field Division’s principal points of contact and therefore were among 

the officials at ATF Headquarters who were most familiar with Operation Fast 

and Furious. As was the case throughout the drafting process, none of these 

ATF Headquarters officials offered substantive comments or edits. We also 

found no record of the Department’s draft responses ever being forwarded to 

anyone in the Phoenix Field Division for comment prior to February 4, when 

the final signed letter was sent to Sen. Grassley.269

 

269 As Deputy Assistant Director for ATF’s western field divisions, McMahon generally 

served as the primary point of contact between the Phoenix Field Division and Headquarters. 

When asked why he did not forward the February 2 draft response or subsequent drafts to 

Newell, McMahon stated, “I probably stopped forwarding things like that to him because this 

would just spin him up even more. You know, I just try to . . . manage him, kind of, kind of 

keep it a little bit more calm.” Newell told the OIG that he never saw a draft of the February 4 

letter before it was issued. A review of Newell’s e-mail indicates that Newell received a copy of 

the Department’s final signed response to Sen. Grassley on February 7, 2011, from Burke. 

Newell replied to Burke that he had not seen the final response but had “heard about it from 

my HQ [Headquarters].”
352 

Also on February 2, Weinstein forwarded a draft of the response with his 

most recent edits to Breuer, who was in Mexico, and to the Criminal Division’s 

Principal Deputy Assistant Attorney General and Chief of Staff Mythili Raman. 

In his e-mail message Weinstein wrote, in part: 

Just an update – Faith [Burton] and I are going back and forth on 

a letter to Grassley which would go out today. I am trying to make 

it as strong as possible. She’s now accepted my first round of 

edits, but this next round is more aggressive. 

Later that evening, Weinstein forwarded an updated version of the draft to 

Breuer and Raman. Breuer forwarded this draft to his personal e-mail 

account. He told the OIG that he finds it difficult to read documents on his 

Blackberry and he sometimes forwards them to his personal account so he has 

the option to read them later on a larger screen. He stated that it was “highly 

unlikely” that he reviewed this or any other draft of the response to Sen. 

Grassley that Weinstein forwarded to him, and that he did not recall reading 

the final February 4 letter until after it had been sent.270

At the U.S. Attorney’s Office, Burke had begun forwarding drafts to 

Cunningham, Hurley, and others. Hurley stated that he read Sen. Grassley’s 

January 27 letter to allege that ATF had sanctioned the sale of the two 

weapons found at the Terry murder scene that traced back to Avila. He stated 

that he would have preferred that the response simply recite Avila’s history of 

weapons purchases, including when ATF learned of these purchases, in order 

to “set the record straight” with regard to the two weapons found at the scene. 

Hurley told us that he could not recall whether he shared this specific 

comment with others in the office as the draft response was being reviewed. 

 The OIG found no email messages from Breuer in which he proposed edits, commented on the 

drafts, or otherwise indicated that he had read them. 

Hurley also said he would not have made a “blanket” assertion that “ATF 

makes every effort to interdict weapons that have been purchased illegally and 

prevent their transportation to Mexico.” He said that the sentence was too 

broad and subject to differing interpretations. For example, he said that people 

could challenge the accuracy of the sentence on the ground that ATF had not 

assigned more agents to more fully cover the surveillance of the suspects in 

Operation Fast and Furious, and therefore could not be said to have “made 

every effort.” He added that he did not spot this problem with the sentence 

when he first reviewed the letter because he was only focused on those portions 

 

270 In addition to the two February 2 drafts, Breuer also received a version of the 

response that was signed by Weich on February 3 but not sent out. He also received the final, 

signed February 4 letter on the evening it was sent out.
353 

of the response that pertained directly to Operation Fast and Furious, and 

therefore did not raise the issue. 

According to an e-mail from the First Assistant U.S. Attorney to Burke 

and Cunningham, Hurley also wanted the response to include language about 

FFL1’s cooperation in the investigation to show that the FFL was “not upset 

with us.” Cunningham replied that it was a good idea, but added, “Too late to 

perfect letter – it needs to go out for Friday [February 4, 2011] papers.” 

On February 2, officials in the U.S. Attorney’s Office proposed one major 

edit to the letter. After Burke asked Cunningham, Hurley, and others to review 

the most recent draft, Cunningham proposed specific language aimed at 

refuting what he interpreted to be Sen. Grassley’s allegations: 

Regarding the allegations repeated in your letter that ATF in any 

way “sanctioned”, had knowledge of, or permitted weapons 

purchased on January 16, 2010 in Arizona to reach the Republic 

of Mexico is categorically false. The Department of Justice 

continues to investigate the murder of CBP Agent Brian Terry and 

intends to bring a criminal case in short order. 

Cunningham noted in his e-mail to Hurley, Burke, and others in the 

office that the Washington Post had begun reporting on the link between the 

guns found at the Terry murder scene and Operation Fast and Furious. Hurley 

wrote back that he “like[d] the stronger and more specific statement about the 

January 16 purchase.” Having already circulated his proposed language, 

Cunningham then asked, “And it’s absolutely True, correct?” Hurley confirmed 

that Cunningham’s proposed language was accurate. The Public Affairs Officer 

for the U.S. Attorney’s Office also commented that he approved of the proposed 

language, stating, “The truth is we don’t know what atf might have been up to 

in other states, but we know about our case. And we should push back with 

specifics to protect the integrity of our case.” 

Burke forwarded Cunningham’s proposed language to Burton. Burke 

separately wrote to Johnston, Smith, and Weinstein that he would “like an 

audience with you [presumably the Office of the Deputy Attorney General] if 

OLA balks at this language. We need to be forceful. His letter is outrageous 

and getting legs.” Johnston at this point suggested that Monaco and Stuart 

Goldberg, the Chief of Staff to newly appointed Deputy Attorney General James 

Cole, be “looped in.”271

 

271 Cole was appointed Deputy Attorney General on December 29, 2010, and began 

serving in that position on January 3, 2011. He was confirmed by the Senate on June 28, 

2011. Goldberg served as Cole’s Chief of Staff until he was appointed Principal Associate 

Deputy Attorney General on July 27, 2011.

 Smith responded that he was planning to meet with 
354 

Monaco about the letter later that afternoon. Johnston replied, “Great. Burke 

is rightfully ballistic about this.”272

Smith also wrote to Burton urging her to include language “to rebut 

directly the implication in Grassley’s January 27 letter that ATF ‘sanctioned’ 

the purchase of the firearms linked to the Terry murder.” Smith added that he 

understood the phrase “ATF makes every effort to interdict weapons that have 

been purchased illegally and prevent their transportation to Mexico” to be an 

implicit refutation of the allegation that ATF had sanctioned the sale of the 

weapons found at the Terry murder scene. He wrote that the Department’s 

response should “take on” the allegation directly. Smith’s message represents 

the only reference to the phrase “ATF makes every effort to interdict weapons 

that have been purchased illegally and prevent their transportation to Mexico” 

that the OIG found throughout the editing process. As noted, Attorney General 

Holder, Deputy Attorney General Cole, and other senior Department officials 

cited this phrase as the primary inaccuracy in the February 4 letter and their 

reason for withdrawing it. 

 Johnston told the OIG that while she was 

in Mexico with Burke at this time, he told her he was upset that Sen. Grassley 

had alleged that ATF was responsible for the weapons found at the Terry 

murder scene even though ATF was not aware at the time of purchase that the 

weapons had been sold to Avila. 

After Burton pointed out that Sen. Grassley had not alleged that the 

weapons found at the Terry murder scene had been transported into Mexico, 

Weinstein reformulated Cunningham’s proposed language to state that “the 

allegation, described in your January 27 letter, that ATF ‘sanctioned’ the sales 

of assault weapons that may have been used in the killing of Customs and 

Border Protection Agent Brian Terry is categorically false.” 

Burton resisted adding new language about Terry, writing to Weinstein 

and Burke that it “goes too far.” In the ensuing e-mail exchanges, Weinstein 

and Burke debated with Burton about whether Sen. Grassley had explicitly 

alleged that ATF had “sanctioned” the sale of the weapons used to kill Terry. 

Burton told the OIG that she did not read Sen. Grassley’s January 27 letter to 

allege that, yet understood why Weinstein and Burke did. She told us that she 

 

272 In a separate exchange involving Weinstein, Johnston wrote, “The truth of the 

matter is if Congress had renewed the assault rifles ban these weapons could not have been 

purchased,” and suggested adding that point to the response to Sen. Grassley. Weinstein 

responded that OLA was not likely to agree to do so, adding: “In any event, the assault 

weapons ban was painfully easy to circumvent. . . . [S]o hard to say those weapons, or 

weapons just like them, would not have been available.” Johnston told the OIG that she made 

the suggestion about including the assault weapons ban issue in the response to Sen. Grassley 

based on her personal views.
355 

was “trying to counsel to hold back to the extent of responding to what’s really 

on the table and not . . . going beyond that.” 

Notwithstanding Burton’s objections to Weinstein’s language about 

Terry, the language remained in the draft that was circulated at the end of the 

day on February 2 within the Department, ATF Headquarters, and the U.S. 

Attorney’s Office. This draft also included the same two sentences, modified 

only slightly, from the first version of the letter that Burton had circulated the 

day before. At this stage of the drafting process, the two sentences appeared in 

the draft response as follows: 

More generally, ATF has not “sanctioned” the sale of assault 

weapons to suspected straw purchasers, who then transported the 

weapons throughout the southwest border area and into Mexico. 

ATF makes every effort to interdict weapons that have been 

purchased illegally and prevent their transportation to Mexico. 

Hoover wrote to tell Weinstein, Burton, Burke, and Smith that ATF was 

“fine with this letter.” Rasnake also wrote to Burton to tell her that he had 

communicated with Sen. Grassley’s senior staffer, who was insisting on 

receiving the Department’s response on February 3. Rasnake wrote, “The 

Senator is getting heat from the Press which will only escalate tomorrow (the 

deadline).” 

4. Increased Involvement of the Office of the Deputy 

Attorney General in Finalizing the Response 

During February 3 and through February 4, when the Department’s 

response to Sen. Grassley was issued, Burton remained the primary 

coordinator of the editing and review process, and continued circulating drafts 

to ATF Headquarters and the U.S. Attorney’s Office. Weinstein told us that as 

other officials in the Office of the Deputy Attorney General and OLA began to 

review and edit the Department’s response, he disengaged from the process. 

On February 3, Assistant Attorney General for Legislative Affairs Weich 

began editing the draft he had received the day before. He reorganized several 

paragraphs, but his edits were not substantive in nature and did not change 

the two sentences that the Department later cited in its December 2 letter 

withdrawing the February 4 letter. As with prior revisions, Burton circulated 

this latest draft to Hoover, Burke, Weinstein, and Smith, and to others in OLA. 

Chief of Staff to the Attorney General Gary Grindler, who had received 

Sen. Grassley’s letters but was not being forwarded drafts of the response, 

wrote to Monaco to suggest that “someone in the ODAG [the Office of the 
356 

Deputy Attorney General] review the ATF’s response” to Sen. Grassley.273

At Monaco’s request, Smith forwarded her the most recent draft to 

review. Monaco wrote back that she was “by no means conversant with all the 

facts here,” but was “concerned about the tone” of the draft. She proposed two 

edits that reflected a more cautious approach to the Department’s response. 

First, she objected to the phrase “categorically false” in the sentence inserted 

by Weinstein to rebut what Weinstein perceived as Sen. Grassley’s allegation 

that ATF had “sanctioned” the sale of the weapons used to kill Terry. Second, 

Monaco suggested changing the phrase “ATF has not ‘sanctioned’ the sale of 

assault weapons to suspected straw purchasers” to “ATF does not ‘sanction’ the 

sale of assault weapons to suspected straw purchasers.” (Emphasis added.) 

Monaco told the OIG that she suggested this second edit because she believed 

that the response would be more accurate if it were drafted “on a policy level . . 

. rather than on a case specific situation where we . . . might not know the 

facts yet.” 

 

Monaco responded that Brad Smith was engaged on the matter. 

Smith responded to Monaco that “[w]e have flagged some of these 

concerns in the past . . . and have been assured that we’re okay.” Monaco 

nonetheless asked Smith to brief her on the facts of the case. Monaco told the 

OIG that Smith told her that he had been in contact with unspecified 

prosecutors in the U.S. Attorney’s Office in Phoenix, and that they had told 

Smith they had reviewed “the file” and based their assurances to him on that 

review. Monaco stated that Smith did not elaborate on what files had been 

reviewed. 

As Smith and Monaco met to discuss the Department’s proposed 

response to Sen. Grassley, officials at ATF Headquarters continued pressing 

Burton to finalize the letter. Rasnake wrote to Burton and Weich that 

“Grassley’s office is telling media that ‘there may be something to this’ because 

ATF is not answering,” and to ask whether the letter would be going out that 

day. (Emphasis in original.) Burton responded, “OLA hopes to do that.” A few 

minutes later, Rasnake wrote Burton and Weich again to ask whether ATF 

could go ahead and send out the letter under Melson’s signature, adding that 

the staffer was “very ‘concerned’ that he has not heard from us yet.” A few 

minutes after that, Hoover sent an e-mail to Burton and Weich also asking if 

Melson could sign the letter. Weich first responded to Hoover: 

 

273 Grindler served as Acting Deputy Attorney General from February 4, 2010, until 

January 2, 2011. He then served as Principal Associate Deputy Attorney General until 

January 17, 2011, when he became Chief of Staff to Attorney General Holder.
357 

We are working on the reply, including the process of clearing it 

with leadership offices. The letter should go out over my signature 

so that the full authority of the Department stands behind our 

position. We will get it out as soon as possible. No need to panic 

and no need to react to whatever Grassley’s press guy might be 

whispering to reporters. 

Weich then responded to Rasnake: 

No – see my last e-mail. Let’s calm down and we’ll get this out in a 

timely, effective way. 

Monaco, who also received Weich’s responses, wrote to Weich to note her 

concurrence that the letter should come from Main Justice. She also informed 

Weich that she had a few questions for Smith about the letter.274

During the early evening of February 3, and apparently in the belief that 

Monaco’s questions and concerns had been addressed, OLA proceeded to put 

the draft letter into “final” for Weich’s signature. After Weich signed the letter, 

Burton sent it to Rasnake to forward to Sen. Grassley’s staffer. However, 

Monaco and Goldberg had additional questions about the letter, and asked 

Brad Smith to continue working on it. Learning of this, Burton sent an urgent 

e-mail to Rasnake to tell him not to send out the letter. The February 3 letter 

was not sent. 

Smith told us that Monaco’s primary concern revolved around the 

following sentence in the February 3 version of the letter: 

At the outset, we want to assure you that the allegation, described 

in your January 27 letter, that ATF “sanctioned” the sales of the 

assault weapons that may have been used in the killing of 

Customs and Border Protection Agent Brian Terry, is false. 

Smith wrote to Hoover and Burke to explain that Monaco and Goldberg 

interpreted this sentence to mean that “we could prove definitively that the 

guns involved in Terry’s killing weren’t acquired by one of the straw purchasers 

targeted as part of Project Gunrunner.” Monaco told the OIG that Smith’s email accurately summed up her concern as to that issue.275

 

274 Monaco also told Weich that she wanted to delete the word “categorically” from the 

letter even though it “may ruffle feathers.” Weich replied, “I think that word came from 

[Weinstein or Burke], both of whom are convinced that ATF is in the right here, but why take a 

chance.”

275 Monaco also wanted to confirm that the response to Sen. Grassley did not include 

information about the case that went beyond what was included in the indictment.
358 

Smith learned from ATF that the FBI’s forensic analysis of the two 

weapons was “inconclusive.” However, in his e-mail to Hoover and Burke, 

Smith stated that he disagreed with Monaco’s reading of the sentence. He 

interpreted the sentence only to mean that “ATF never ‘sanctioned’ the sale of 

any of the weapons used in the Brian Terry killing to a straw purchaser.” In an 

effort to resolve confusion over how the letter could be interpreted, Smith 

combined Burton’s general statement that “ATF has not ‘sanctioned’ the sale of 

assault weapons to suspected straw purchasers, who then transported the 

weapons throughout the southwest border area and into Mexico” with the more 

specific point that ATF did not sanction the straw purchase of the particular 

guns found at the Terry murder scene. The resulting sentence appeared in the 

second paragraph of an updated draft of the letter as follows: 

At the outset, the allegation (described in your January 27 letter) 

that ATF has or would “sanction” the sale of assault weapons to 

any straw purchasers who transport weapons into Mexico – let 

alone any straw purchasers who may be linked to the killing of 

Customs and Border Protection Agent Brian Terry – is false. 

Smith’s edit affected the Department’s draft response in two ways. First, 

by changing “suspected straw purchasers” to “straw purchasers,” the sentence 

could be read to apply only to known straw purchasers. Second, by removing 

“southwest border area,” the sentence now meant literally that ATF had not 

sanctioned the sale of assault weapons to straw purchasers who themselves 

transport weapons into Mexico. Weapons purchased by the suspected straw 

purchasers in Operation Fast and Furious were recovered both in Mexico and 

throughout the southwest border area. In fact, the weapons purchased by 

Jaime Avila on January 16, 2010, were recovered at the Terry murder scene in 

Rio Rico, Arizona. 

Smith told the OIG that he made these changes on his own initiative, 

and did not recall doing so for the purpose of narrowing the Department’s 

response to a more factually defensible position. Rather, Smith told us that he 

understood the allegation in Sen. Grassley’s letter to be that ATF sanctioned 

the sale of weapons to straw purchasers who transported them throughout the 

Southwest border area and then into Mexico. Smith stated that at the time he 

was making these revisions he was not aware that guns purchased in 

Operation Fast and Furious had been recovered both inside the United States 

and in Mexico, and did not recall that the weapons from the Agent Terry 

murder scene were recovered inside the United States.276

 

276 As we describe in Chapter Five, Smith wrote to then-Acting Deputy Attorney 

General Grindler and others on December 17, 2010, to inform them that two weapons 

recovered from the scene of Agent Terry’s murder “have been linked to Jaime Avila, Jr., a ‘straw 

(Cont’d.)
359 

Monaco told the OIG that she did not recall ever discussing these specific 

edits with Smith or reviewing them as track changes from the prior draft. She 

stated that Smith would not have been required to have her review the edits 

prior to circulating them because she was confident that he was regularly 

consulting with ATF and the U.S. Attorney’s Office about the response. She 

stated that her discussions with Smith about Sen. Grassley’s allegations 

focused on whether ATF had “let guns go to Mexico,” and not whether they also 

had been transported throughout the southwest border area. However, she 

told us that these discussions did not amount to a suggestion from her to 

delete the reference to the southwest border area from the response. 

Smith sent his revised draft in track changes to Burke and Hoover. 

Burke responded that he agreed that the prior draft had been confusing with 

respect to the “sanction” language. He again asked that Cunningham’s original 

proposed language (first suggested on February 2 and excerpted above) be 

used, and complained that Cunningham’s original language “was watered down 

over several rewrites.” Burke added, “An eventually indicted defendant bought 

the guns traced to the murder scene – prior to the investigation, without ATF 

knowledge, and not discovered til at least 3 days after the purchase. Grassley 

is wrong and at best imposing an unobtainable standard on ATF.” 

Burke’s continued assertion that Avila purchased the weapons before the 

Operation Fast and Furious investigation began was inaccurate. Avila was 

among the group of original suspects in the Fast and Furious investigation. 

Hoover also wrote to Smith to express his agreement with Burke, stating, 

“I think Dennis has nailed this.” Hoover acknowledged to the OIG that Burke’s 

statement about Avila’s purchase of the weapons before the investigation began 

was incorrect and that he had failed to catch this incorrect statement when he 

wrote to Smith.277

 

firearms purchaser’ that ATF and USAO for Arizona have been investigating since November 

2009 as part of its larger ‘Fast and Furious’ operation.” The e-mail noted that the firefight that 

led to Agent Terry’s death occurred in Arizona.

277 Also on February 3, Hoover received a memorandum drafted by Gary Styers, a 

special agent in ATF’s Dallas Field Division, to Special Agent in Charge Robert Champion. 

Styers had been detailed to Phoenix from May through August 2010 as part of the Gun Runner 

Impact Team (GRIT) and had limited involvement with the Fast and Furious investigation 

assisting with surveillance operations. Styers’ memorandum documented his communication 

with staffers of Sen. Grassley, who contacted him on February 2. According to the 

memorandum, Styers told the staffers of one incident in which agents were setting up to 

observe a transfer of firearms, but while repositioning, lost track of the vehicle containing the 

transferred firearms. He also told the staffers that he had never seen firearms cross the border 

into Mexico. Lastly, he told the staffers that “it is unheard of to have an active wiretap 

investigation without full time dedicated surveillance units on the ground.” Based on our 

(Cont’d.)
360 

5. The Justice Department Issues its Response to Sen. 

Grassley 

According to e-mail records, on the morning of February 4, two versions 

of the draft response were circulating within the Department. One version, 

discussed above, contained Smith’s edits of the previous evening. A later 

version suggests that Smith agreed to Burke’s renewed request to incorporate 

Cunningham’s proposed language from two days earlier, and that Smith 

changed the first sentence of the second paragraph as follows: 

At the outset, the allegation (described in your January 27 letter) 

that ATF “sanctioned” weapons purchased in Arizona on January 

16, 2010, to reach the Republic of Mexico is false.

According to an e-mail from an OLA line attorney to Burton and Weich, 

the OLA line attorney figured out that two versions of the sentence were being 

reviewed simultaneously by officials in OLA and the Office of the Deputy 

Attorney General.278

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. ATF makes every effort to interdict weapons 

that have been purchased illegally and prevent their transportation 

to Mexico. 

 The OLA line attorney noted in her e-mail that in Smith’s 

most current version he had adopted some of Burke’s proposed language and 

had dropped any mention of Agent Terry. She told us that she then tried to 

reconcile the two versions of the sentence from Smith’s two drafts, and to make 

the letter more “concise.” In making these edits, she decided to omit both the 

reference to Agent Terry and to the date on which Avila purchased the weapons 

found at the murder scene. The line attorney’s edits resulted in the following 

language, which remained unchanged in the final letter: 

The line attorney stated that she did not recall why she deleted the references 

to Agent Terry and to January 16 or whether it was done for any particular 

purpose. She told us that she understood from internal discussions about the 

allegations that ATF had not allowed straw purchasers to take weapons to 

Mexico, and that she was trying to convey this understanding in a more 

 

review of Hoover’s e-mails, he did not forward this memorandum to any other officials in ATF 

Headquarters or at the Department.

278 The OLA line attorney had begun working at the Justice Department on January 

28, 2011, and her first assignment was to assist Burton in responding to Sen. Grassley’s 

letters. She told us that she had no substantive knowledge of the Fast and Furious 

investigation.
361 

concise fashion. Burton praised the edit and sent the revised version to Brad 

Smith, who obtained Monaco’s approval of the change. 

The revised draft was cleared by the Office of the Deputy Attorney 

General, and Burton circulated it one last time to Burke, Hoover, Weinstein, 

Weich, Monaco, and others. Neither Attorney General Holder nor Deputy 

Attorney General Cole reviewed the final February 4 letter before it was sent, 

nor did anyone from the Office of the Attorney General.279

Weich signed the letter and it was e-mailed to Sen. Grassley’s staff at 

approximately 6:00 in the evening on February 4.

 After reviewing the 

draft, Weinstein wrote to Burke, “Just curious why they took out specific 

reference to Terry?” Burke responded, “Who knows. It’s all very perplexing. 

Every version gets weaker.” 

280

III. The Justice Department’s Decision to Withdraw its February 4 

Response 

In this section we describe the Department’s examination of Operation 

Fast and Furious during the first several months of 2011 and the growing 

awareness of senior Department officials that ATF had used flawed tactics in 

Operation Fast and Furious and other firearms trafficking investigations. We 

also describe other statements by Department officials to Congress about the 

assertions in the February 4 letter, followed by a description of the 

Department’s decision in late 2011 to formally withdraw the February 4 letter 

and produce internal documents purporting to explain how the February 4 

letter came to be drafted. 

A. The Department Initiates an Examination of Operation Fast 

and Furious 

1. The February Letters from Sen. Grassley, the CBS News 

Story, and the Weinstein Summary E-Mail 

On February 9, 2011, Sen. Grassley wrote to Attorney General Holder to 

express dissatisfaction with the Department’s response to his request for a 

briefing: 

 

279 However, officials in both the Offices of the Deputy Attorney General and the 

Attorney General received copies of the signed February 3 letter that was never sent out.

280 The February 4, 2011, letter from Ronald Weich to Sen. Grassley is attached to this 

report as Appendix D.
362 

Unfortunately, the reaction to my request has, so far, been little 

more than delay and denial. I finally received a letter at close of 

business on Friday, February 4, in response to my request. It 

came not from the ATF, but from the Justice Department. In that 

letter, the Department categorically denied that the ATF “knowingly 

allowed the sale of assault weapons to a straw purchaser . . . .” 

The Department said the ATF “makes every effort to interdict 

weapons that have been purchased illegally and prevent their 

transportation to Mexico.” 

Sen. Grassley’s letter continued, “However, as I explained in my initial 

letter to Acting Director Melson, the allegations I received are supported by 

documentation.” Sen. Grassley’s February 9 letter included nine attachments, 

consisting primarily of ATF documentation of Jaime Avila’s weapons 

purchases. In addition, Sen. Grassley noted that the indictment of Avila and 

others stated that approximately 769 firearms had been purchased and only 

103 had been recovered. Sen. Grassley asked, “So, where are the other 

approximately 666 weapons referenced in the indictment? Why has the ATF 

not seized them?” The letter also indicated that whistleblowers had alleged 

that at least one FFL “wanted to stop participating in sales like those to Avila 

sometime around October 2009.” The letter concluded with an excerpt from an 

e-mail that Sen. Grassley had received from Agent Terry’s stepmother that 

noted, among other things, a lack of contact by the government since Agent 

Terry’s murder. In the closing paragraph Sen. Grassley wrote, “The Terry 

family deserves answers.” 

On the night of February 9, Wilkinson summarized Sen. Grassley’s letter 

to Grindler in an e-mail message: “Difficult to read on BB. Appears to be a 24 

page letter taking issue with our response to his first two letters on this issue.” 

The next morning, Grindler responded to Wilkinson, 

Monty: We need to dig into this situation. ODAG needs to be 

pushing ATF on what took place here. I would like to know more 

about it. Let’s discuss at the 8:45. 

Later that day, Grindler wrote to Monaco and Wilkinson: 

Two issues the AG is particularly concerned with are (1) the 

statement that at least one gun dealer wanted to stop participating 

in sales like those to Avila sometime around October 2009 with 

ATF allegedly encouraging the dealer to continue to sell to 

suspected traffickers; and (2) the assertion that there has been no 
363 

contact with the victim’s family. The AG agrees that the family 

deserves answers.281

On February 10, 2011, Weinstein and the Chief of ATF’s Firearms 

Operations Division Stuart Lowrey provided a briefing to Sen. Grassley’s 

staffers. Weinstein and Lowrey told the OIG that the briefing was intended to 

provide general information about the challenges encountered in gun 

trafficking investigations and prosecutions. Burton, who attended the briefing, 

told us that the Department did not agree to provide information about specific 

pending investigations, and told the staffers in advance of the briefing that it 

would not do so. 

On February 13, 2011, Breuer sent an e-mail message to Grindler 

summarizing the February 10 briefing. The e-mail message stated, in part: 

From talking to Jason, my understanding is that OLA made the 

judgment not to address any of the specific allegations in Sen. 

Grassley’s letters during the briefing. . . . During the Q&A at the 

briefing, Sen. Grassley’s staffers asked a number of specific 

questions about the AZ investigation, which our folks declined to 

answer, with one exception. A staffer asked whether as part of the 

AZ case, ATF ever encouraged a reluctant FFL to continue unlawful 

sales. Jason and the ATF reps. responded that based on their 

knowledge of the case, they were unaware of that ever having 

happened in this investigation. 

 

281 On February 12, Monaco forwarded to Grindler an e-mail message from Brad Smith 

stating that he was told the answer to the first of Attorney General Holder’s concerns was “no,” 

and as to the second issue, ATF had told him that ATF had not and typically would not engage 

Terry’s family, and would defer to Customs and Border Protection or the FBI on this matter. 

Grindler forwarded Smith’s e-mail message to Holder, writing, “This does not provide a 

complete or detailed answer. You will need to be prepared to address Grassley’s assertions at 

your hearings. We are working on it.” Several weeks later, following a letter dated March 16, 

2011, from Chairman Issa to Acting Director Melson complaining about the Department’s 

failure to provide responses to questions about Project Gunrunner and Operation Fast and 

Furious, Grindler expressed concern with the Department’s progress in gathering information. 

In a March 17, 2011, e-mail message to Holder, Grindler wrote, in relevant part:

I remain concerned that we are not dealing with this situation as aggressively as 

we should. I think ODAG should assign someone to work on this (they probably 

have already done this) and get directly involved with ATF in looking at what is 

going on and what our response should be to the allegations. I just don’t think 

we can wait on OIG to complete an investigation. I know that Jim [Cole] spoke 

with the border USAs and then sent a follow-up email to them making your 

position on this clear, but I am not sure that is all we should be doing.
364 

A review of the e-mail records indicates that Weinstein drafted this e-mail for 

Breuer two days earlier, and that both Raman and Breuer reviewed it before 

Breuer sent it to Grindler unchanged. 

On February 16, 2011, Sen. Grassley again wrote to Attorney General 

Holder, this time to request specific documents concerning Operation Fast and 

Furious and to inquire about ATF’s contact with the FFLs. Regarding the 

February 10 briefing, Sen. Grassley wrote, “When asked whether ATF had 

encouraged any gun dealer to proceed with sales to known or suspected 

traffickers such as Avila, the briefers said only that they did not have any 

‘personal knowledge’ of that.” 

That same day, Grindler wrote to Breuer, Raman, and Weinstein: 

Questions from the AG: 

So ATF did NOT persuade a reluctant dealer to participate – 

bottom line? 

Do we have info on whether a gun sold in the operation was used 

in the shooting? 

After confirming with Burke, Newell, and Chait that a draft of the below 

response was accurate, Weinstein responded to Grindler: 

Per ATF and USAO: 

(1) Bottom line is that ATF did NOT persuade a reluctant dealer to 

participate. 

(2) Two of the guns sold during the investigation were found near 

the scene of the shooting of Agent Terry. These guns had been 

purchased about 11 months earlier, by a person later determined 

to be part of the trafficking ring. ATF was not notified of the sales 

until after they had been completed. 

If you need more info, I can provide additional details about the 

two guns and about ATF's/USAO's dealings with the gun dealers in 

this case. 

Grindler wrote back to Weinstein, Breuer, and Raman, “I would like more 

information including what is meant by ‘ATF was [not] notified of the sales until 

after they had been completed.’” According to Weinstein’s e-mail records, he 

spoke to Grindler directly about Grindler’s request for this additional 

information. 

Sen. Grassley’s February 16 letter was followed by several others over the 

next few months from Sen. Grassley, Chairman Darrell Issa, Chairman Lamar 

Smith, and other Members of Congress seeking information about Operation 

Fast and Furious. Before responding to the factual assertions in these letters, 
365 

they were more closely scrutinized by Department and ATF officials than were 

the allegations in Sen. Grassley’s January 27 and 31 letters, involving what 

Lowrey described as a “line by line analysis” of each statement before 

responding. 

Amid these congressional inquiries, the news media also began focusing 

attention on Operation Fast and Furious, including a CBS broadcast on 

February 23, 2011, reporting that ATF had “facilitated the delivery of 

thousands of guns into criminal hands.” That same day, Grindler forwarded to 

Holder a summary of the broadcast entitled “CBS News Uncovers Gunrunning 

Scandal Within the ATF.”282

Cole told the OIG that the mounting Congressional challenges to the 

position the Department took in its February 4 letter to Sen. Grassley, possibly 

the CBS broadcast, and Holder’s directive to get answers, led him to talk to 

ATF about “what was going on.” He stated that he also asked Weinstein to 

meet with him because he was told that Weinstein “would have the most 

knowledge about it,” but that Weinstein told him “he didn't know very much.” 

Cole told us that he asked Weinstein to gather more information. 

 Holder replied to Grindler and Deputy Attorney 

General Cole, “Ok. We need answers on this. Not defensive bs – real answers.”

Weinstein stated that on or about February 24, Cole and Goldberg told 

him to gather information about how Operation Fast and Furious had been 

conducted. He stated that he was given 24 hours to do so, and was not told 

why he was given this assignment. Weinstein told the OIG that he told the 

Deputy Attorney General that “the only thing I think I can do in 24 hours is I 

could talk to the AUSA. So if it’s all right with you I’ll talk to the AUSA. I’ll 

write up what he says and I’ll send it to you. And they said that was fine.”

Weinstein said that he discussed the investigation for 2 1/2 hours by telephone 

with Hurley and Cunningham, and based on that conversation compiled a 5-

page e-mail about Operation Fast and Furious and sent it to Goldberg, 

Wilkinson, and Counselor to the Attorney General Molly Moran on February 

26, 2011. Wilkinson forwarded the e-mail to Holder and Grindler the next day. 

Prior to sending the e-mail on February 26 to Goldberg, Wilkinson, and 

Moran, Weinstein e-mailed a draft to Breuer and Raman earlier in the day. 

Breuer replied that the draft was “just excellent.” A few minutes later he sent 

another note to Weinstein and Raman that read, “An interesting read.” Raman 

made a suggestion about the tone of the message, which she believed used too 

many “superlatives” to describe AUSA Hurley and an ATF agent. A review of 

the final e-mail indicates that Weinstein adjusted the language based on 

 

282 A transcript of this broadcast may be found at http://www.cbsnews.com/2100-

18563_162-20035609.html. 
366 

Raman’s suggestion. Shortly after sending the draft e-mail to Breuer and 

Raman, Weinstein sent another note to Breuer and Raman that read, “Lanny, 

once this goes up, and I’ll cc you on the final one, that should provide a vehicle 

for you to communicate the message that we should be out of this going 

[forward].” Breuer responded, “Okay. Thanks.” Weinstein copied both Breuer 

and Raman when he sent the final e-mail message to Goldberg and the other 

officials. We found no evidence that Breuer followed up as Weinstein 

suggested. 

Weinstein told the OIG that the e-mail summarized the investigation 

based primarily on information provided to him by Hurley (rather than 

Cunningham) and about which Weinstein said he had no “independent 

knowledge.”283 The e-mail began by noting that “given the scope and 

complexity of the investigation, it is not possible for anyone to develop a 

sufficiently granular understanding of the facts and day-to-day conduct of the 

investigation in 24 hours. . . . The information that follows was provided by 

Emory and Pat during our call.” The final summary described the use of seven 

wiretaps in the investigation, applications for three of which had been reviewed 

and authorized by Weinstein.284

[T]his was an extraordinarily complex case, and I can give you only 

a higher-altitude view of [Operation Fast and Furious], based on 

the information provided by the USAO and ATF. But based on my 

conversation yesterday with the AUSA and Crim Chief, and based 

on prior conversations with Dennis Burke and with the ATF SAC, 

this investigation was conducted – and the decisions about when 

to seize guns were made – thoughtfully, carefully, and strategically. 

 Weinstein’s summary did not indicate that he 

had authorized three of the wiretap applications referenced in his summary, or 

that he was familiar with the Fast and Furious investigation as a result of 

discussions he had with McMahon in April and May 2010. Rather, the 

summary concluded by noting: 

Weinstein told the OIG that in order to gather information relevant to 

Sen. Grassley’s allegations, he asked Hurley to focus on those transactions 

that ATF and the U.S. Attorney’s Office knew about prior to the purchase. 

Specifically, Weinstein stated that he asked Hurley whether there were any 

purchases for which it was known in advance through a wire conversation that 

 

283 After reviewing a draft of this report, Department officials cited Weinstein’s February 

26 e-mail summary as an example of the assurances that the U.S. Attorney’s Office continued 

to provide to the Department about how Operation Fast and Furious had been conducted.

284 In fact, including one renewal and two extension applications, a total of nine wiretap 

applications had been submitted to the Criminal Division for authorization to file with the 

court.
367 

there was probable cause to believe that the sale would be illegal. Weinstein 

stated that Hurley “did not know the answer off the top of his head,” and the email noted that the U.S. Attorney’s Office would be providing this information 

at a later time. Weinstein told us that he was surprised by this because “the 

calls that give you probable cause before the guy walks in the door are . . . one 

of the things you’re hoping and praying to get through the wire.” He added 

that “the significance of [Hurley’s] failure to know that didn’t register with me 

until later,” when Weinstein read the ROIs about prospective purchases in the 

case in July 2011. 

Weinstein’s February 26 e-mail summary identified five “important 

components of the investigative strategy,” and then went into greater detail on 

each of the components. The “important components” were:

• “Trying to flip straw purchasers was considered to be an extremely 

low-percentage, and highly risky, move”; 

• “FFLs were asked to cooperate but were told NOT to complete 

suspicious or potentially illegal sales” (emphasis in original); 

• “ATF attempted to interdict every gun it had the legal authority to 

seize, and attempted to interdict newly purchased guns at the first 

legally permissible moment”; 

• “No guns were allowed to cross the border into Mexico, and there 

were no disputes between agents, AUSAs about whether particular 

guns could be interdicted”; and 

• “No evidence on which to prosecute Jaime Avila until after Terry 

murder.” 

Regarding the third bullet point about interdicting firearms, Weinstein 

told the OIG that what Hurley described to him during their conversation was 

“the opposite of gun walking.” The text under this bullet point indicated that, 

“[d]uring most of the investigation, the team was getting only historical 

information about completed gun sales . . . .” The text went on to state that if 

information was obtained through surveillance, the pole camera, or wiretaps 

“that those guns were on the move . . . ATF responded by attempting to seize 

the guns.” This portion of the summary continued by noting that “[l]ater in the 

investigation, primarily through the wires, there were times when ATF had 

some prospective information that a purchase was going to be made.” The text 

went on to state that Weinstein did not know if there were situations where the 

agents knew “from the wires that the purchase was going to be a straw 

purchase, such that there might have been PC [probable cause] to interdict the 

guns as soon as the purchaser left the store. I have asked the USAO that 
368 

question, and they are going to get back to me.”285

[t]he AUSAs’ directive to the agents was that they could interdict 

the guns the minute they could show that these guns – which were 

quite expensive – were in the hands of someone other than the 

purchaser. So in those instances, ATF surveilled the purchaser 

from the store and attempted to follow him to the third party who 

would receive the guns. The minute the guns changed hands – 

typically in parking lots or other neutral locations – the 

investigators attempted to seize them. In most cases they used 

state or local officers to do these interdictions, in order to avoid 

revealing the federal investigation and jeopardizing the wires. 

 However, Weinstein’s 

summary continued by stating that: 

Based on the facts outlined in Chapter Four, we found that these assertions 

were not accurate. 

As for the fourth bullet point, regarding not allowing guns to cross into 

Mexico, the summary indicated that “[t]he team made it an imperative to try to 

seize any guns they knew were headed for the border. They say, categorically, 

they never knowingly allowed any guns to go to Mexico.” This bullet point also 

noted that the agents and prosecutors were in agreement regarding whether 

firearms could be interdicted, and stated that the AUSAs authorized every 

seizure that the agents sought to do, except one. Even with regard to that one, 

the summary reflected that after the AUSA and agent consulted, they agreed 

that there was no legal basis to seize the firearms. We were troubled by the 

assertions in this bullet point, based on the facts outlined in Chapter Four, 

because they gave a misleading impression that agents and prosecutors had 

made it an “imperative” to seize firearms during the investigation. 

As for the fifth bullet point, the summary indicated that as of January 

19, Avila “was believed to be a straw purchaser, but there was no evidence at 

that time, and as indicated above, the tactical judgment had been made that 

the straws in this case were particularly unlikely to flip.” Once more, we found 

this representation to be inaccurate. By January 19, 2010, there was indeed 

evidence to support the conclusion that Avila was a straw purchaser, including 

his connection to Patino and his multiple purchases of firearms with cash 

despite having insufficient income to support such purchases. 

 

285 However, the OEO cover memorandum for the first wiretap application Weinstein

authorized for Operation Fast and Furious (the May 21, 2010, application) described p 

 

p As 

we describe in Chapter Five, Weinstein told us that he did not review the agent affidavits in 

support of the Operation Fast and Furious wiretap applications he authorized but that he did 

review the OEO cover memoranda for those applications.
369 

As noted, Weinstein concluded his summary by stating that “based on 

my conversation yesterday with the AUSA and [Criminal Division] Chief, and 

based on prior conversations with Dennis Burke and with the ATF SAC, this 

investigation was conducted – and the decisions about when to seize the guns 

were made – thoughtfully, carefully, and strategically.”286

2. The Referral to the OIG, and the Department’s March 

and April 2011 Correspondence with Congress 

 As described below, 

several months later, Weinstein sent an e-mail to the Department’s senior 

officials indicating that he had learned additional facts that he said caused him 

to reach a different conclusion. 

On the evening of Monday, February 28, 2011, Deputy Attorney General 

Cole contacted the Department of Justice Acting Inspector General and told her 

that the Attorney General was referring the Fast and Furious matter to the OIG 

for investigation.287 Two days later, on March 2, the Department sent a letter 

to Sen. Grassley responding to his February 9 and February 16 letters. In the 

response, Assistant Attorney General Weich informed Sen. Grassley, among 

other things, that the Attorney General had asked the Acting Inspector General 

“to evaluate the concerns that have been raised about ATF investigative 

actions . . . .” The letter provided no substantive comments in response to Sen. 

Grassley’s letter.288

On March 3, 2011, Sen. Grassley responded to the Department’s March 

2 letter by attaching additional documentary evidence which he described in 

his letter as demonstrating “that ATF allowed illegal firearm purchases by 

suspected traffickers in hopes of making a larger case against the cartels.” The 

attached ROIs concerned three straw purchases that were unrelated to the 

Fast and Furious investigation. Sen. Grassley asserted that this evidence 

demonstrated that the Department’s claims in the February 4 letter were not 

accurate, and he asked the Department to explain how those claims “can be 

squared with the evidence.” 

 

286 Weinstein told us that he did not recall speaking with Newell about Operation Fast 

and Furious until after the February 4 letter had been issued.

287 The OIG’s involvement in the investigation actually preceded this request from the 

Attorney General. On January 27, 2011, Senator Grassley’s staff brought the allegations of an 

ATF agent to the attention of the OIG. We interviewed that agent on February 23, 2011 and 

began a preliminary inquiry into the matter.

288 However, the earlier drafts of what became the March 2 letter took a very different 

approach than did the Department’s final letter. The draft letter, even up to March 1, included 

the following sentence: “ATF does not ‘sanction’ the illegal sale of assault weapons to straw 

purchasers nor does it direct FFLs to engage in transactions that are known to be illegal at the 

time that they occur.” That statement was deleted from the letter that the Department sent out 

on March 2.
370 

Also on March 3, Brad Smith advised Chief of Staff to the Deputy 

Attorney General Stuart Goldberg in an e-mail message that CBS News 

intended to run a story that evening saying that the Department, and in 

particular the Criminal Division, was slow to take down the straw purchasing 

operation connected to Agent Terry’s murder and “endorsed a strategy of 

allowing guns to enter Mexico.” The message also stated: 

Last night, ATF found a document indicating that, on at least one 

occasion, an ATF agent witnessed a suspected straw purchaser 

resell firearms, but for reasons that remain unclear . . . broke off 

surveillance of the straw and did not take him into custody 

following the transaction. As described to us, this document 

appears contrary to statements from ATF last month indicating 

that its agents arrested suspects [sic] straws along the Southwest 

Border as soon as they had concrete evidence indicating the 

suspect straws were engaged in illegal firearms trafficking. 

Goldberg forwarded Smith’s e-mail to Deputy Attorney General Cole, who 

responded, “We obviously need to get to the bottom of this.” 

The next day, March 4, Sen. Grassley wrote to Melson regarding the 

murder of ICE Agent Jaime Zapata on February 15, 2011, and the reported 

connection of a firearm used in the shooting to an ATF investigation. Sen. 

Grassley asked several questions in his letter about the matter, and requested 

a response by March 7. 

A few days later, on March 8, 2011, the Department responded to Sen. 

Grassley’s letters of March 3 and March 4. In his brief letter, Assistant 

Attorney General Weich indicated that both of Sen. Grassley’s letters had been 

referred to the OIG, and Weich noted that the Attorney General had asked the 

OIG “to evaluate concerns raised about Project Gunrunner.” Once again, the 

letter did not respond substantively to Sen. Grassley’s inquiries. 

The Department took a similar approach in responding to a March 9 

letter from Chairman of the House Committee on the Judiciary Lamar Smith 

and other members of the committee to Attorney General Holder seeking 

additional information about Operation Fast and Furious. In the response, 

dated April 4 and signed by Weich, the Department provided general 

information about the investigation, its approval as a multi-agency Organized 

Crime and Drug Enforcement Task Force (OCDETF) program, the January 

2011 indictment, and the use of the eTrace database. The letter also stated: 

Allegations have been raised about how this investigation was 

structured and conducted. As you note, at the request of the 

Attorney General, the Acting Inspector General is now investigating 

those allegations. 
371 

Once again, the letter provided no substantive information in response to the 

questions about Fast and Furious. 

Burke was angered by the Department’s approach to responding to 

Congress. In an e-mail message dated March 15, 2011, Burke made known to 

Weinstein, Burton, and an OLA line attorney his displeasure with the 

Department’s responses to congressional inquiries by deferring to the OIG’s 

pending investigation. After receiving a copy of Chairman Smith’s March 9 

letter to Attorney General Holder, Burke wrote: 

These Members should just saddle themselves up to the defense 

counsel’[s] table for the gun traffickers in our on-going case. 

Seriously, if you all send another mealy-mouth response kicking 

this to the IG, you will have assisted these Members in negatively 

impacting, to a significant degree, an existing indictment and 

thereby our ability to successfully prosecute these criminals. 

If that is your course of inaction, I will send my own response 

informing them of their interference [with] this prosecution and 

their despicable misinformation propaganda campaign of the [CBP] 

Agent Terry murder case.

On March 9, the Department also had received a letter regarding Project 

Gunrunner from Sen. Patrick Leahy, Chairman of the Senate Judiciary 

Committee. The Department responded to Sen. Leahy on April 18, and once 

more referenced the OIG’s pending investigation and made no substantive 

comment regarding the matter. 

As we describe below, however, the Department later addressed Sen. 

Grassley’s January 2011 allegations in a substantive manner on May 2 while 

responding to an April 13 letter from Sen. Grassley. 

3. The Office of the Deputy Attorney General Reviews the 

ATF ROIs in March 

In addition to asking Weinstein in late February to gather information 

regarding Fast and Furious, the Office of the Deputy Attorney General took 

other steps to examine the conduct of the investigation. Associate Deputy 

Attorney General Matthew Axelrod told us that Deputy Attorney General Cole 

asked him in March to “get up to speed quickly” on Operation Fast and 

Furious. Axelrod stated that he was not given a specific reason for this 

assignment, but that he was aware there had been media reports about 

Operation Fast and Furious and that it was a “hot topic.” Axelrod had moved 

from the Criminal Division to the Office of the Deputy Attorney General in midMarch 2011. He told us that he had his first “in-depth” discussion about 
372 

Operation Fast and Furious with Brad Smith on March 8, and thereafter 

became deeply involved in the assignment.289

Axelrod made a series of requests to ATF and the U.S. Attorney’s Office 

for ROIs and other documents related to the case. According to an internal 

ATF e-mail circulated among Melson, Hoover, Chait, McMahon, and others, as 

of March 17, 2011, Axelrod had requested the following information, with the 

status of ATF’s response to each request indicated at the end of each request in 

parenthesis: 

• Identification of any investigation in which ATF had ever “watched 

guns cross the border (including in controlled deliveries or 

attempted controlled deliveries) into Mexico” (in progress); 

• In Operation Fast and Furious, all ROIs, including ROIs or other 

explanations supporting each instance in which ATF had observed 

a purchase of a firearm followed by a transfer, and had not 

intervened to prevent further distribution of the firearms (in 

progress); 

• All Title III affidavits (still needed); 

• The indictment (done); and 

• A copy of ATF’s Weapons Transfer Policy (ATF Order 

3310.4B)(done).290

An internal ATF follow-up e-mail dated March 21, 2011, shows that 

Axelrod had “spent the weekend reading the first 370 ROIs,” and based on that 

review requested additional documents from ATF, including attachments to 

and missing pages from the ROIs he had reviewed. Axelrod told us that he 

asked for the ROIs because “that would be a good way for me to learn . . . the 

facts of the investigation.” The March 21 e-mail also reflects that Axelrod 

requested copies of “any briefing papers on the case,” noting parenthetically 

that “DAD McMahon allegedly has a couple.” 

By March 24, 2011, Axelrod had reviewed most of the ROIs from 

Operation Fast and Furious and had separated several of them into two 

categories: those documenting ATF’s surveillance both of the weapons 

 

289 Axelrod’s involvement in the review of Operation Fast and Furious ended in June 

2011, when Associate Deputy Attorney General Steve Reich assumed this responsibility.

290 Melson was copied on this e-mail and replied that he wanted copies of all the 

information requested by Axelrod.
373 

purchase from the FFL and a transfer to a third party soon thereafter; and 

those in which the Title III electronic surveillance combined with ATF 

surveillance potentially gave probable cause to arrest pursuant to 18 U.S.C. § 

924(a)(1)(A). 

Axelrod stated that the primary question he was focused on answering 

through his review was “whether ATF had knowingly permitted guns to cross 

the border into Mexico” in Operation Fast and Furious. He said that this was 

“collectively” understood by ATF, the U.S. Attorney’s Office and the Department 

to be the “key allegation” by Congress. After reviewing a draft of this report, 

Department officials told the OIG that their understanding of what was the 

“key allegation” was based on correspondence from Members of Congress and 

other congressional statements, such as press releases. For example, 

Department officials cited a March 24 press release from Sen. Grassley that 

began, “Senator Chuck Grassley continues to press the administration for 

answers about the policy that allowed guns to ‘walk’ over the Mexican 

border.”291

Axelrod stated that based on his preliminary review of the ROIs, Title III 

applications, and other material, “I didn’t see any evidence yet that the core 

allegation that they had knowingly permitted guns to cross into Mexico was 

accurate.” However, he told us that his review of these materials raised 

additional questions about whether ATF had interdicted weapons where it had 

probable cause to do so. He stated that he was never able to “firmly resolve all 

those questions because . . . there was conflicting information.” 

Axelrod told us that his review of Operation Fast and Furious was not 

linked to the issue of whether the statements in the Department’s February 4 

letter to Sen. Grassley were accurate, stating, “the issue on the table wasn’t 

hey we’ve sent a letter to Senator Grassley a month ago and now folks are 

concerned about whether it’s accurate or not and can [you] look at that.”292

Axelrod said that he discussed at least one ROI with Cole, Goldberg, and 

Monaco, and may have described others. These ROIs documented 

circumstances that raised questions for Axelrod about whether ATF had failed 

to seize or interdict weapons when it may have had probable cause to do so. 

 

291 However, Sen. Grassley also issued other press releases that focused on other 

aspects of the allegations in his January 27 letter. For example, on April 14, he issued a press 

release that described his concern with information purporting to show that “ATF instructed 

gun dealers to engage in suspicious sales despite the dealer’s concerns.”

292 As discussed below, however, Axelrod did have discussions about the accuracy of 

the February 4 letter after the Department received a letter from Sen. Grassley on April 13, 

2011, asking whether the Department continued to stand by its assertion that “ATF did not 

sanction or otherwise knowingly allow the sale of assault weapons to straw purchasers.”
374 

Cole stated that he did not personally review the ROIs, but that if 

something “particularly noteworthy” was found, he would get briefed on it. He 

said that their analysis focused on whether there was both probable cause and 

the ability to interdict the weapons that had been purchased by suspects in the 

investigation. Cole stated that Axelrod identified “a number of incidences 

where surveillance broke off.” Our review indicates that Axelrod was 

particularly concerned with incidents in which ATF agents conducted 

surveillance of firearms purchases and the subsequent transfer of the firearms 

to third parties without seizing or interdicting the firearms. 

Cole also had several conversations with Melson about Operation Fast 

and Furious during the March and April 2011 period. Cole told us that initially 

Melson assured him that “everything was fine” with the investigation. Cole 

stated that Melson then began to qualify these assurances by stating that there 

was no legal basis to stop the straw purchasers, and that “if we had better 

laws, we could have stopped them.” Cole said that he learned either through 

Melson or Axelrod that in one incident, ATF had broken off surveillance on 

straw purchasers because the agents did not have their protective gear and 

could not leave their vehicle to continue the surveillance. He said that this 

story then “started to morph into . . . well, they did have their protective gear, 

but it was too difficult to put it on, so they didn’t pursue it.” Cole referred to 

this incident in an August 26, 2011, memorandum for the Attorney General 

entitled “Change in Leadership at ATF,” which stated in part: 

In early March, Mr. Melson told us about a single Report of 

Investigation (ROI) that described a failure to interdict weapons by 

ATF, but he told us that that failure to interdict resulted from a 

variety of reasons unrelated to the allegations about the problems 

with the investigation. Only after we conducted our own review of 

the ROIs did we learn that, far from being the only ROI, there were 

numerous instances in which ATF had not interdicted weapons or 

made arrests despite having had an apparent lawful basis to do so. 

Cole told the OIG that his confidence in ATF leadership was further 

undermined by his review of e-mails indicating that Melson and Hoover had 

asked for an “exit strategy” for the investigation in March of 2010, and that 

they knew months later that weapons had continued to flow into Mexico. 

According to Cole, Melson and Hoover acknowledged that they “probably 

should have done more to bring it down,” but claimed that ATF was not making 

arrests “because the U.S. Attorney’s Office in Phoenix wouldn’t give them the 

green light” to do so. However, Cole told the OIG that “if you’ve got an 

operation and guns are going across the border, and you think you ought to 

take it down for that reason, you should take it down, you should stop it.” 
375 

B. Acting Director Melson Reviews the Title III Affidavits in 

March and Concludes that the February 4 Letter is Inaccurate 

Melson independently reached his own conclusion about the accuracy of 

the Department’s February 4 letter after reviewing the Title III affidavits for 

Operation Fast and Furious. Melson told us that while onboard a flight on 

March 30, 2011, he read the wiretap affidavits for the first time and concluded 

that the February 4 letter contained inaccurate statements. Melson said that 

he found particularly troubling the statement in the February 4 letter that Sen. 

Grassley’s allegation “that ATF ‘sanctioned’ or otherwise knowingly allowed the 

sale of assault weapons to a straw purchaser who then transported them into 

Mexico – is false.” He explained that although the statement was “technically 

true,” Congress “wanted us, or the Department, to give them a broader 

answer.” He stated that the affidavits documented 

 

 

Melson summarized his concerns as follows: “We can’t say on one hand, 

Judge, there’s probable cause to believe that these guys are doing that, and on 

the other hand saying we never did it. So, you know, it was just too close for 

my comfort.” 

Melson stated that he told Burke of his concerns in the airport during a 

layover in Phoenix.293

In addition to telling Burke of his concern upon reading the Title III 

affidavits on March 30, 2011, Melson immediately sent an e-mail, entitled 

“Hold the presses,” to Hoover, Rasnake, Acting Chief of Staff Pellettiere, Office 

of Public Affairs Chief Scot Thomasson, and Special Assistant to the Director 

Jeffrey Sarnacki advising them of his concerns. Among other things, Melson 

said in his email, “[w]e also have to change the statement Matt is working on 

for Mexico, and the statement in the first Grassley response that was actually 

sent.” At the time, the Department also was preparing to respond to the letter 

 Burke told us he recalled the conversation with Melson 

in the airport, and said that Melson was “astounded” by the fact that one 

potential interceptee under the Title III application 

 Burke had not 

read the Title III affidavits as of that point in time, and said that he later found 

the reference that Melson had identified. Burke stated 

that he then contacted Newell and told him he thought that Melson was 

“misunderstanding” the issue. According to Burke, Newell said that his office 

was discussing the Title III affidavits with Melson to explain them “from our 

[the Phoenix Field Division’s] perspective.” 

 

293 Burke was on the same flight as Melson.
376 

dated March 9, 2011, from Members of the House Judiciary Committee, 

including Chairman Smith, concerning the Fast and Furious investigation. 

Rasnake forwarded Melson’s e-mail to Assistant Director for Public and 

Governmental Affairs James McDermond and Acting Deputy Assistant Director 

for the Office of Field Operations (Western Region) Mark Potter and wrote, 

“Wow.” Pellettiere responded to Melson about 30 minutes later and noted that 

“I have not returned the proposed language for Mexico to Matt yet. The 

proposed response to Mr. Smith does not address these issues in any form.” 

Melson responded to Pellettiere, “But our statement about the straws not 

taking the guns over the border may not be correct.” As Pellettiere indicated, 

the Department’s response to Chairman Smith and other Members of the 

House Judiciary Committee, which was dated April 4, 2012, did not respond 

substantively to the questions asked about the Fast and Furious investigation 

and instead noted that the OIG was investigating the allegations that had been 

made. 

Just ten minutes after writing his “Hold the presses” e-mail message to 

ATF colleagues, Melson wrote to Associate Deputy Attorney General Axelrod to 

advise him of his concerns. However, rather than title his e-mail, “Hold the 

presses,” Melson simply entitled his e-mail to Axelrod “F and F.” Additionally, 

instead of describing his concerns about the February 4 response to Sen. 

Grassley, as he had done for his ATF colleagues, Melson simply said to Axelrod, 

“you need to read the [Title] III affidavit, still under seal. Changes some 

things.” Melson thereafter sent at least two additional e-mails to Axelrod 

referencing the paragraphs in the wiretap affidavit dated July 2, 2010, which 

concerned him. Axelrod told us that he had already read the Title III 

applications by the time he received Melson’s e-mails on March 30 and 31. He 

stated that Melson never told him that the Title III applications caused him to 

have specific concerns regarding the February 4 letter. Axelrod said that he 

understood Melson’s messages to indicate that “he was beginning to come to 

sort of where I was, which is that there are questions. There are some things 

here that bear further investigating to figure out what had happened.” 

Axelrod also noted that Melson later approved a May 2, 2011, letter from 

the Department to Sen. Grassley that reaffirmed the assertion that “ATF’s 

Operation Fast and Furious did not knowingly permit straw buyers to take 

guns into Mexico.”294

 

294 We discuss the Department’s May 2 letter below.
377 

C. Weinstein and the Office of the Deputy Attorney General Learn 

of Other Flawed ATF Investigations 

Weinstein told us that in March 2011 he learned of other incidents, 

unrelated to Fast and Furious, in which ATF may have facilitated the transfer 

of weapons to gun traffickers. Weinstein told the OIG that on March 4, he, 

Goldberg, and Hoover were planning to brief Attorney General Holder on ATF’s 

E-Trace system, but that the briefing was cancelled. He stated that in the 

hallway outside the Attorney General’s conference room, he heard Hoover 

“describing to Stuart Goldberg that they have now found two or three” firearms 

trafficking incidents that were not related to Operation Fast and Furious. In emails to Goldberg (on March 9) and Grindler (on March 10), Weinstein wrote, 

“When we were talking to Billy in the hall the other day, he mentioned 2 or 3 

incidents in which an ATF agent (inexplicably) sent a CI [confidential 

informant], posing as a straw, in to a store to make a purchase and then had 

the CI hand those guns off to a trafficker.”295 Weinstein stated that he 

understood that the weapons were not seized in these incidents.296

Weinstein told us that at this point he still believed that guns had not 

been allowed to “walk” in Operation Fast and Furious. These unrelated 

incidents, however, were significant for him “because now there were cases that 

occurred on the watch of people who were running ATF under this 

administration.” Weinstein told the OIG that “once I . . . learned that there 

were cases on our watch in which guns had walked, my orientation was that 

that needed to be disclosed to Congress.” In a March 21, 2011, e-mail to 

Johnston, Axelrod, Raman, and other Criminal Division officials, Weinstein 

wrote that there appeared to be senior management agreement that “we should 

try to add some language to our congressional responses that captures, with 

appropriate disclaimers, the fact that to date ATF has discovered only a few 

(non-F&F) instances where agents intentionally let guns ‘walk.’” 

Weinstein also told us that his knowledge of these incidents changed the 

way he viewed Operation Wide Receiver. As noted earlier in this chapter, 

Weinstein had been aware of Operation Wide Receiver since April 2010, but 

told us he did not raise it with anyone at the Department during the drafting of 

the February 4 response to Sen. Grassley because it “had not come to mind as 

 

295 Weinstein told us that he sent this e-mail to Goldberg and Grindler because they 

were recipients of his February 26, 2011, e-mail message that described Operation Fast and 

Furious in some detail, and he did not want these officials to think that he had omitted this 

information from that earlier message.

296 After reviewing a draft of this report, Department officials noted that the “2 or 3 

incidents” related to one case that had also been described in Sen. Grassley’s March 3, 2011 

letter.
378 

being possibly relevant to this response,” and in any event considered it an 

aberrant investigation that had been conducted under the prior administration. 

However, Weinstein stated that “once I discovered that Wide Receiver wasn’t 

aberrant, my view was we’ve got to tell Congress, especially to the extent that 

gun walking had occurred on our watch.” Weinstein said that he advocated to 

Associate Deputy Attorney General Steven Reich to tell Congress about it 

following Reich’s arrival at the Department in June 2011. After reviewing a 

draft of this report, the Department commented that it “did, in fact, offer a 

briefing that summer to Committee staff regarding Wide Receiver but the 

Committee staff declined the offer.” Weinstein also said he recalled that CBS 

had run a story that made reference to Operation Wide Receiver at this time.297

Cole stated that by the summer of 2011, in addition to realizing that 

Operation Fast and Furious was flawed, he also learned of Operation Wide 

Receiver, and other ATF investigations. He stated that these investigations 

contributed to the conclusion that ATF had not made every effort to interdict 

weapons purchased illegally, as the Department had represented to Sen. 

Grassley in its February 4 letter. 

Cole did not identify a specific piece of information that marked the point 

at which his confidence in the February 4 letter shifted to doubt. Rather, he 

 

297 CBS reporter Sharyl Attkisson e-mailed the Department’s Office of Public Affairs 

Director Tracy Schmaler on March 8, 2011, to ask about allegations that prior to Operation 

Fast and Furious ATF “knowingly allowed weapons to get into the hands of suspected cartel 

suppliers similar to the allegations in Fast and Furious,” including in an operation called Wide 

Receiver. CBS ran the story on March 8, 2011. On March 9, Schmaler e-mailed officials in the 

Office of the Deputy Attorney General and the Office of the Attorney General, including 

Goldberg, Monaco, Smith, Grindler, and Wilkinson, to summarize the story. The e-mail 

contained an excerpt from Attkisson’s interview of an ATF agent in which Attkisson stated that 

“multiple sources tell cbs news the questionable tactics were used in more than one operation 

and date as far back as 2008 in the tucson area. One case was called ‘wide receiver.’”

That same day, a colleague of Schmaler’s in the Office of Public Affairs (who had 

attended the meeting with ATF officials on April 28, 2010, with Weinstein and Trusty that is 

described in Chapter Three) forwarded a portion of Schmaler’s e-mail to Raman, Weinstein, and 

James Trusty, stating, “Here’s the tease CBS apparently did last night about their continuing 

coverage – note mention of wide receiver.” Hoover forwarded a web posting of Attkisson’s report 

to Brad Smith and Monty Wilkinson on March 10, writing in his e-mail message, “I hope the 

AG understands that we did not allow guns to ‘walk’.” Wilkinson forwarded this message to 

Attorney General Holder, who replied, “Do they really, really know?” Despite this email traffic, 

we saw no substantive reaction within the Department at the time to the media reports about 

Operation Wide Receiver until after an Associated Press story about that investigation ran in 

October 2011, which we discuss below.

After reviewing a draft of this report, Department officials cited Hoover’s March 10 email to Smith and Wilkinson as an example of how Department officials continued to receive 

assurances from component officials, including senior component officials such as Hoover, 

after February 4 that ATF had not allowed firearms to “walk.”
379 

stated that the process of realizing that the letter was inaccurate to a 

“sufficient degree” to warrant its withdrawal was a “gradual” one. 

As facts about these other ATF investigations became known to 

Department leadership, Weinstein told the OIG that by August 2011 he also no 

longer believed that Operation Fast and Furious had been the well-run 

investigation he believed it to be when he was asked to gather information 

about it in February. On August 4, 2011, Weinstein sent an e-mail to Goldberg 

and others stating that based on his review of ROIs and the recent 

Congressional testimony of William Newell and other ATF officials, his initial 

assessment of Operation Fast and Furious “would be different.” 

D. The Department Publicly Disavows the February 4 Letter 

The review of Operation Fast and Furious that the Department 

conducted, coupled with revelations of other flawed investigations, led senior 

Department leadership to realize that the February 4 letter to Sen. Grassley 

contained inaccuracies. The concerns about the accuracy of the February 4 

letter were reflected in the Congressional testimony of Weich, Breuer, and 

Attorney General Holder in June and November of 2011. 

1. The Department’s May 2 Letter to Sen. Grassley and 

Weich’s June 15 Congressional Testimony 

On April 13, 2011, Sen. Grassley wrote to Attorney General Holder to 

again express frustration with the Department’s failure to provide requested 

documents. Sen. Grassley wrote that this “failure to cooperate is especially 

troubling in light of the February 4, 2011, reply to my initial letter.” The letter 

asked for a written response to the following question: 

Do you stand by the assertion in the Department’s reply that the 

ATF whistleblower allegations are “false” and specifically that ATF 

did not sanction or otherwise knowingly allow the sale of assault 

weapons to straw purchasers? If so, please explain why in light of 

the mounting evidence to the contrary. 

Attached to the April 13 letter were several e-mail exchanges between a 

cooperating FFL and Group VII Supervisor David Voth from April and June 

2010. In the e-mails, the FFL repeatedly sought assurances that none of the 

weapons he was selling were to “bad guys” or were reaching Mexico. In one 

message, Voth replied that “if it helps put you at ease we (ATF) are continually 
380 

monitoring these suspects using a variety of investigative techniques which I 

cannot go into detail.”298

Weich, on behalf of the Department, responded to Grassley on May 2, 

2011, stating in part: 

You have asked whether it remains our view that “ATF did not 

sanction or otherwise knowingly allow the sale of assault weapons 

to straw purchasers.” In fact, my letter, dated February 4, 2011 

said: “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.” 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 us 

documents, including internal ATF emails, which you believe 

support your allegation. As you know, we 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. While we await her findings, the Attorney 

General has made clear to prosecutors and agents working along 

the Southwest Border that the Department should never knowingly 

permit firearms to cross the border. 

Early drafts of the May 2 letter indicate that Department leadership 

considered taking a different approach in responding to Sen. Grassley’s April 

13 letter. OLA initially intended to remark only on Sen. Grassley’s truncated 

recitation of the Department’s February 4 letter: 

You have asked whether it remains our view that “ATF did not 

sanction or otherwise knowingly allow the sale of assault weapons 

to straw buyers.” That is an incomplete quote from my letter dated 

February 4, 2011. My letter stated, “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.” 

Thereafter, you provided to us documents, including internal ATF 

e-mails, in support of your allegations, which the Attorney General 

referred to the Acting Inspector General. The statement in my 

letter to you was true to the best of my knowledge at the time, and 

 

298 This FFL’s concerns about his role in the investigation and his interactions with 

Voth and AUSA Hurley are described in Chapter Four.
381 

in the course of her investigation the Acting Inspector General[] will 

thoroughly review the documents that you have provided to us 

since that time. 

Axelrod, Burton, Weich, Goldberg, Cole, and Office of Public Affairs 

Director Tracy Schmaler provided comments and edits to the draft, resulting in 

the final version that stated: 

It remains our understanding that ATF’s Operation Fast and 

Furious did not knowingly permit straw buyers to take guns into 

Mexico. 

A review of e-mail records documenting the drafting of the May 2 letter that 

were provided to the OIG shows that this sentence was included in an e-mail 

from Goldberg that was initially sent only to Schmaler on April 29. Goldberg’s 

email presented Schmaler with “options 1 and 2.” Option 1 was a paragraph 

that included the sentence “It remains my understanding that ATF’s Operation 

Fast and Furious did not knowingly permit straw buyers to take guns into 

Mexico.” Option 2 was the same paragraph but without the sentence. 

Schmaler replied: 

As a general matter not wild about restating the sentence if we’re 

not going to go [with] version #1 . . . and I’m not up on all the 

latest, but I got the sense we couldn’t be that definitive or weren’t 

sure we could. Version #2 is problematic – we restate the sentence 

– don’t clarify or refute. Seems the worst option in my view. I sent 

edits to matt earlier that notes the recitation of quote in Grassley’s 

letter was incomplete, doesn’t restate it, but makes clear that we 

are aware of the concerns raised by ATF agents and that’s why AG 

referred. Happy to discuss in more detail. 

Goldberg then sent the two options, along with Schmaler’s reply, to Axelrod. 

Axelrod forwarded the revised draft letter incorporating the sentence from 

option 1 (slightly modified to begin, “It remains our understanding . . .) to 

Burton and Weich. The draft was also sent to Deputy Attorney General Cole 

and Principal Associate Deputy Attorney General Monaco, and to two officials 

in the Office of the Attorney General, Molly Moran and Monty Wilkinson, who 

provided no response. 

Axelrod told the OIG that at this point his focus continued to be on the 

allegation that ATF had knowingly allowed straw purchasers to take firearms 

into Mexico, and that he did not consider Sen. Grassley’s April 13 letter to 

accurately recite the statement in the Department’s February 4 letter about 
382 

this allegation.299

This is what we told you, and it remains our understanding that 

that is accurate. But there [are] questions about what happened 

here. There are things that, well, and we referred them to the IG to 

ask the IG to look at it. But based on what we’ve seen so far, we, 

we haven’t seen evidence that ATF knowingly permitted straws to 

take guns to Mexico. 

 He stated that the May 2 letter was the Department’s 

response to Sen. Grassley’s accusation that the Department had made an 

inaccurate statement to Congress. Axelrod summarized to the OIG this portion 

of the May 2 letter as follows: 

Axelrod added that the issue of whether ATF had knowingly permitted guns to 

go to Mexico was important, stating: 

[I]t matters whether ATF knowingly permitted guns to go into 

Mexico . . . because . . . the stuff I’m hearing from Arizona about 

oh the law is different out here. You don’t understand. It’s hard to 

prove what’s in a straw purchaser’s mind. All of that falls away 

when you’re talking about guns crossing the border into Mexico. 

That sort of debate, discussion I was having with, with Arizona 

would have been moot if ATF had let guns go into Mexico. 

Weich, who also worked on the May 2 letter, explained the sentence and 

his subsequent testimony about it as follows: 

Well, well, the question is, did the straw buyers, themselves, take 

the guns into Mexico or did the buyers pass them on to others. By 

the time of May 2nd, and on many instances over the course of the 

period from February 4th to December when the letter is 

withdrawn, by this time we had doubts about the, our denial of the 

allegations in Senator Grassley's letter. And we said that in 

various ways, including in my [June 15, 2011] testimony. I said 

we're not clinging to the . . . denial in the February 4th letter. In 

this letter, we're doing just that. We're seeing kind of, you know, 

the words were carefully chosen here. It . . . remains our 

understanding that ATF's Operation Fast and Furious did not do 

this. And what we sort of quickly say, you have provided us 

 

299 The statement Axelrod was referring to was: “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.” The 

May 2 letter to Sen. Grassley was silent about the Department’s assertion in the February 4 

response that “ATF makes every effort to interdict weapons that have been purchased illegally 

and prevent their transportation to Mexico.”
383 

documents, including internal emails, which you believe support 

your allegation and, as you know, we referred them to the Office of 

the Inspector General. So we were conveying in this paragraph, 

look, we think that we were right on February 4th but we're not 

sure and that's why we've sought an independent review. . . . So in 

all sorts of ways, we were conveying our uncertainty, including in 

this letter. 

When asked whether the statement in the February 4 letter denying that 

ATF had knowingly allowed the sale of firearms to a straw purchaser who then 

transported them into Mexico was intended as a “literally true” statement, 

Weich responded that he was not as involved with drafting the February 4 

letter as he was with drafting the May 2 letter, and thus was “not equipped to 

say but could be.”300

After reviewing a draft of this report, Weich further explained the 

statement in the May 2 letter as responding to Sen. Grassley’s direct request 

for a substantive response to his April 13 letter by providing a “status report” 

on the Department’s position at that time. He added that the Department also 

wanted to memorialize its position before the Attorney General’s forthcoming 

testimony before the House Oversight and Government Reform Committee on 

May 3 and the Senate Judiciary Committee on May 4. 

 Weich added, “By the time of May 2nd, yes. We were very 

much trying to do that, to be very careful to defend what we could . . . defend 

with certainty and then make clear that we have our doubts and that’s why the 

Inspector General was reviewing.” 

After the sentence from option 1 was incorporated into the draft 

response, Axelrod sent the draft to Melson, Hoover, Burke, and others for 

concurrence on April 29, stating, “I want to make sure that we are on 100% 

solid ground saying that ‘It remains our understanding that ATF’s Operation 

Fast and Furious did not knowingly permit straw buyers to take guns into 

Mexico.’” Both ATF and the U.S. Attorney’s Office approved the draft.301

On May 1, Weich wrote to Burton to ask whether the sentence “It 

remains our understanding that ATF’s Operation Fast and Furious did not 

knowingly permit straw buyers to take guns into Mexico” was “based on the 

distinction between Fast and Furious and other ATF operations.” Burton 

 

300 As discussed above, the edits that resulted in this narrow statement in the February 

4 letter were made primarily by Brad Smith, who told the OIG that he had not intended to 

create a statement that could be defended as true only in a literal sense.

301 Criminal Chief Patrick Cunningham proposed changing the language from “straw 

buyers” to “suspected straw buyers.” Deputy Attorney General Cole rejected this proposed edit, 

and Goldberg concurred with Cole. The May 2, 2011, letter to Sen. Grassley is attached to this 

report as Appendix E.
384 

responded on May 2 that according to Axelrod, the sentence “pertains to F&F, 

and we haven’t checked all other ATF operations.” A few hours later, the 

signed May 2 letter was sent by e-mail to Sen. Grassley and Sen. Leahy. 

After reviewing a draft of this report, Department officials stressed to the 

OIG that between February 4 and May 2, they continued to receive and rely 

upon assurances from component officials, including senior component 

officials, that ATF had not knowingly allowed firearms to be transported into 

Mexico in Operation Fast and Furious. Among the documents cited in support 

of this assertion was an e-mail from Burke to Weinstein forwarding a message 

written by Patrick Cunningham. Cunningham’s message attached a document 

entitled “Plainspoken Response to Congressmen and NRA Letters of March 9, 

2011,” which stated in part: 

The investigation known as the “Fast and Furious” did not involve 

agents watching as guns crossed into Mexico. The allegations that 

somehow ATF or DOJ attorneys “may have been complicit in the 

illegal transfer of firearms into Mexico” or “may have facilitated the 

transfer of guns to violent drug cartels” are false. 

Department officials also cited a draft letter from Melson to a senior Mexican 

government official that was forwarded to Cole, Goldberg, Schmaler, Weinstein, 

and others for review on April 20. The draft stated, in part: 

At no time did ATF agents observe weapons from Operation Fast 

and Furious cross into Mexico. 

Department officials stated that the sentence “It remains our understanding 

that ATF’s Operation Fast and Furious did not knowingly permit straw buyers 

to take guns into Mexico” was an effort to distinguish between ATF knowingly 

allowing firearms to go to Mexico versus negligently allowing firearms to go to 

Mexico. These officials also stated that the sentence was intended to correct 

the record following the incomplete quote of the Department’s February 4 letter 

in Sen. Grassley’s April 13 letter, and to show that the Department still 

believed that ATF had not knowingly allowed firearms to cross into Mexico in 

Operation Fast and Furious. 

The approach taken by the Department in its May 2 response letter to 

Sen. Grassley differed in a significant way from its four previous response 

letters to Congress regarding Operation Fast and Furious. As outlined above, 

the Department’s March 2 and March 8 letters to Sen. Grassley, its April 4 

letter to the Chairman and Members of the House Judiciary Committee, and its 

April 18 letter to the Chairman of the Senate Judiciary Committee all noted 

that Attorney General Holder had referred the matter to the OIG and provided 

no substantive response. By contrast, the May 2 letter provided at least a 

partial substantive response, and did so in a way that we found could be read 
385 

as crafting a statement that was true only in a literal sense and that 

reaffirmed, at least in part, the Department’s February 4 letter. 

Department officials discussed the May 2 letter in connection with 

preparing for the Attorney General’s forthcoming congressional testimony on 

May 3 and 4. Specifically, on the morning of May 3, Chief of Staff Grindler 

asked Axelrod in an e-mail message, “How do we explain being somewhat 

definitive (‘it remains our understanding’) on the question whether ATF 

knowingly allowed straw purchasers to take guns to Mexico and defer to the 

OIG on the other factual questions?” Axelrod replied: 

I would try to avoid having him engage in the specifics. But if 

pressed, he could say that taking guns to MX is a separate crime. 

If a straw were to try to cross the border with a gun and ATF knew, 

they wouldn’t let it happen (unless they were coordinating with MX 

authorities, which happened in a handful of non-Fast and Furious 

cases). It’s a bright line. The question of whether ATF allowed 

sales to straws will take longer to investigate, since it’s not always 

so clear that someone is a straw rather than a lawful gun buyer. 

Axelrod’s response to Grindler thus provided a suggestion as to how the 

Attorney General could explain why the recently issued May 2 letter provided a 

substantive response as to one issue and a deferral to the OIG as to other 

issues. The Attorney General was not asked to provide such an explanation in 

his May 3 or 4 testimonies.302

On May 3, the day after receiving Weich’s May 2 letter, Sen. Grassley and 

Chairman of the House Committee on Oversight and Government Reform 

Darrell Issa responded in a joint letter to Attorney General Holder, writing, “we 

were surprised and disappointed to see the Department repeat, in slightly 

different language, its denial” of the January 2011 allegations. The May 3 

letter continued: 

In its latest denial, the Department seems to focus more on 

whether ATF knew guns were being trafficked to Mexico than 

 

302 However, in his opening statement in the May 4 hearing, Sen. Grassley referred to 

the May 2 letter, stating in relevant part:

According to Monday's letter, quote, "ATF's Operation Fast and Furious did not 

knowingly permit straw buyers to take guns into Mexico," end of quote. It is 

particularly disturbing that the department would renew its denial at this late 

date in light of the growing evidence in support of the allegations. Documents 

and witness testimony show that the AFT [sic] allowed the sale of semiautomatic weapons to many straw purchasers, even after it knew that the guns 

they previously purchased were recovered in Mexico.
386 

whether the ATF knew they were being purchased by straw buyers. 

While it might be typical in Washington for lawyers to narrowly 

parse statements and argue over fine distinctions to confuse the 

issue, those are not the kind of answers we believe the Justice 

Department should give to Congress when asked straightforward 

questions about such a serious matter as this one. 

Below his signature, Sen. Grassley handwrote a post script to Attorney General 

Holder: 

You should check to see if you are getting accurate information 

from your staff. 

You might be ill-served. 

As noted, Weich told the OIG that by the time of the May 2 response, “we 

had doubts about . . . our denial of the allegations in Senator Grassley’s 

[January 27] letter.” He stated that the wording of the May 2 response was 

“carefully chosen,” and was intended to convey that “we think that we were 

right on February 4th but we’re not sure and that’s why we’ve sought an 

independent [OIG] review.” 

Weich stated that the Department again sought to signal its uncertainty 

about the accuracy of the February 4 letter through his testimony before the 

House Committee on Oversight and Governmental Reform on June 15, 2011. 

During that hearing, Weich was asked several questions about substantive 

aspects of Operation Fast and Furious, such as who had authorized the 

program. In responding to such questions, Weich declined to provide 

substantive answers, frequently citing the ongoing OIG review or his lack of 

personal knowledge. However, when asked about the statement in the 

February 4 letter that ATF did not allow the sale of firearms “to a straw 

purchaser who then transported them into Mexico” and the statement in the 

May 2 letter that “[i]t remains our understanding that ATF’s Operation Fast 

and Furious did not knowingly permit straw buyers to take guns into Mexico,” 

Weich testified: 

Those particular statements remain true for the technical reason 

that the committee’s report issued last night described. The straw 

purchasers don't take guns to Mexico. And in any event, ATF 

doesn't sanction or approve of the transfer of weapons to Mexico. 

When asked later in the hearing about the Department’s February 4 and 

May 2 letters, Weich testified: 

As the committee’s report pointed out, there is a technical 

explanation for why the allegation that ATF sanctioned the sale of 

guns to straw purchasers who then transported them to Mexico is 

not an accurate statement, and so we said that it was false. 
387 

However, serious allegations have come to light, including the 

testimony of the agents here today, that cause Attorney General 

Holder to want there to be an independent review of this matter, 

and he has initiated that review. So we are not clinging to the 

statements in those letters. 

The context of the testimony makes clear that Weich’s statement “we are not 

clinging to the statements in those letters” was a reference to the Department’s 

February 4 and May 2 letters.303

2. Breuer’s Testimony on November 1 

On November 1, 2011, Breuer testified before the Subcommittee on 

Crime and Terrorism, Senate Judiciary Committee, regarding international 

organized crime.304

As a result, I did not draw a connection between the unacceptable 

tactics used by the ATF years earlier in Operation Wide Receiver 

and the allegations made about Operation Fast and Furious, and 

therefore did not, at that time, alert others within Department 

leadership of any similarities between the two. That was a 

mistake, and I regret not having done so. 

 In advance of his testimony, on October 31, Breuer 

released a public statement commenting upon Operation Wide Receiver and his 

failure to disclose his knowledge of that investigation prior to the Department’s 

February 4 letter. Breuer stated that “the leadership of ATF and the U.S. 

Attorney’s Office in Arizona repeatedly assured individuals in the Criminal 

Division and the leadership of the Department of Justice” that Sen. Grassley’s 

allegations in his January 27 letter were untrue. Breuer’s statement 

continued: 

 

303 A transcript of Weich’s testimony is available at http://oversight.house.gov/wpcontent/uploads/2012/04/6-15-11-Full-Committee-Hearing-Transcript.pdf. The report to 

which Weich referred in his testimony is entitled “The Department of Justice’s Operation Fast 

and Furious: Accounts of ATF Agents,” a joint staff report prepared by Chairman Issa and Sen. 

Grassley and issued on June 14, 2011. The report stated that the argument that ATF did not 

sanction the sale of weapons to straw purchasers who then transported them into Mexico 

“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 to whom they 

transferred the firearms.” Joint Staff Report at 50.

304 Breuer’s testimony came after an October 4, 2011, Associated Press story about 

Operation Wide Receiver entitled, “Bush-era probe involved ‘letting guns walk’.” The story 

outlined information about Operation Wide Receiver and also noted the October 2010 e-mail 

exchange between DAAG Weinstein and the Deputy Chief of the Criminal Division’s Gang Unit, 

James Trusty, regarding the possibility of Breuer attending the press conference to announce 

the indictments. (This e-mail exchange is discussed in Chapter Five.) The Associated Press 

story was sent by e-mail to Attorney General Holder, who, even though he had seen a March 

2011 CBS report about Operation Wide Receiver, responded, “WOW.”
388 

During the hearing, Sen. Grassley asked Breuer whether the statement 

in the Department’s February 4 letter that “ATF makes every effort to interdict 

weapons that have been purchased illegally and prevent their transportation to 

Mexico” was “absolutely false” in light of the tactics used in Operation Wide 

Receiver. Breuer responded, “Yes, Senator. What I – .” Sen. Grassley then 

interjected, “That is all I need to know, if that’s correct. 

Breuer completed his response in a written submission, stating in 

relevant part: 

In recent weeks, I have seen reports suggesting that, during my 

November 1, 2011 testimony, I acknowledged knowing that the 

February 4 letter was inaccurate at the time it was submitted. I 

want to make clear that such an interpretation of my testimony is 

absolutely incorrect. . . . [A]s I have stated, knowing what I know 

now was a pattern of unacceptable and misguided tactics used by 

the ATF, I regret not having drawn a connection between the 

allegations relating to Operation Fast and Furious and the 

inappropriate tactics used years earlier in Operation Wide 

Receiver. 

Breuer told the OIG that although he was in Mexico when the February 4 

letter was being drafted, he “wished . . . that a light bulb had gone off and said, 

well you know, there was that screwed up case years earlier.” Breuer went on 

to state that the relevance of Operation Wide Receiver to Operation Fast and 

Furious would have been “tenuous, but it would have suggested that at least 

on one other occasion in the agency’s history when involved in a gun trafficking 

case, agents lost track of guns, and we’re aware that guns were ending up in 

Mexico.” 

Breuer told the OIG that the first draft of his statement to Congress 

acknowledging responsibility for failing to raise Operation Wide Receiver to 

Department leadership was prepared by the Office of the Deputy Attorney 

General, and that he then worked on the statement with his staff in the 

Criminal Division. He stated that he wanted to “take as much responsibility as 

I could,” adding that he believed “there was an expectation that I would step up 

to the plate, and I was willing to do it.” 

3. Attorney General Holder Acknowledges the February 4 

Letter is Inaccurate in his Testimony on November 8 

Attorney General Holder testified on November 8, 2011, before the Senate 

Judiciary Committee about a wide range of matters. When Sen. Grassley 

asked him about the Department’s February 4 letter, Holder stated: 

There was information in that letter that was inaccurate. The 

letter could have been better crafted, we were relying on – in the 
389 

crafting of that letter people were relying on information provided 

to them by people who were, we thought, in the best position to 

know what was accurate. People in the U.S. Attorneys' Office, 

people at ATF, people who themselves have now indicated in their 

congressional testimony before the House that they were not aware 

of the tactics that were employed. As a result of that, the 

information that is contained in the February 4th letter to you was 

not in fact accurate. And that is – I regret that. 

Holder’s November 8 testimony represented the first explicit public 

acknowledgement by a Department official that the February 4 letter was not 

accurate. 

E. Senior Department Officials Conclude that the February 4 

Letter Should be Withdrawn 

On November 9, 2011, Chairman Issa wrote to Weich to request 

information specifically related to the drafting of the February 4 letter, 

including a list of individuals who helped write it, draft versions of the letter, 

and all communications, including e-mails, referring or relating to the 

development of the letter. As noted in the November 9 letter, this request 

covered some of the same materials sought through an October 12, 2011, 

House of Representatives subpoena to Holder. 

Ultimately, on December 2, 2011, the Department issued a letter 

withdrawing its February 4, 2011, response to Sen. Grassley. Attached to the 

December 2 letter were 1,364 pages of what the Department labeled “highly 

deliberative materials” – primarily internal e-mails and early drafts of the 

February 4 letter – purporting to show how inaccurate information came to be 

included in the letter. 

Regarding the timing of the decision to withdraw the February 4 letter, 

Attorney General Holder told the OIG that “it was a process when we finally got 

to the point where we said . . . no matter how you look at this, we have to 

correct the record. We have to . . . do what I think is a relatively extraordinary 

thing and say what we told you back then is simply not consistent with the 

facts . . . as we now know them.” 

We asked Cole why it took the Department until December to withdraw 

the February 4 letter. He stated that although doubts about the letter began to 

surface in March 2011, he first wanted to make sure that all relevant 

documents were reviewed to “have as good an understanding of the facts as I 

can possibly have.” Cole stated that before taking the “fairly dramatic step” of 

telling Congress that the letter contained false information, he wanted to make 

sure that there was nothing in the records to change his view before 

committing to the withdrawal. According to Cole, gathering the documents for 
390 

review took a long time because ATF’s production of documents to Congress 

“had not gone well” initially, and the Department had to devote considerable 

resources to the effort.305

Cole noted that as the process progressed, the Department was not 

affirmatively asserting to Congress that the letter was accurate, but rather was 

taking steps to indicate to Congress that it had some concerns with the letter. 

Cole cited Weich’s testimony as an example of how the Department gave “very 

strong indications” of its concerns. 

Lastly, Cole stated that in deciding to withdraw the letter, he and others 

also decided to provide Congress the documents showing how inaccurate 

statements came to be included. He stated that the document production was 

a “big step” because the Department generally doesn’t disclose internal 

deliberative materials, and the vetting process involved a “fair amount of work.” 

Grindler told the OIG that before the final decision to withdraw the letter 

had been made, there was a division of thinking within the Department 

leadership about this issue. Grindler stated that some officials believed that 

the Department “had already essentially communicated that we weren’t 

standing by that letter,” and that it was therefore unnecessary to withdraw it.

Margaret Richardson, a Deputy Chief of Staff and Counselor in the Office 

of the Attorney General who helped draft the December 2 letter, told the OIG 

that by the time of the Attorney General’s testimony on November 8, there were 

“signals” from Congress that members believed that “it was time for us to 

withdraw the [February 4] letter.” She added that “ultimately the decision was 

made to provide all of the documents that went into the drafting so that it 

would be clear not only that we were withdrawing it but that there was no 

intent to mislead Congress in the drafting of it.”

F. The Department Formally Withdraws the February 4 Letter 

and Produces Internal Documents to Congress 

By a letter dated December 2, 2011, to Sen. Grassley and Chairman Issa, 

Deputy Attorney General Cole wrote that: 

facts have come to light during the course of this investigation that 

indicate that the February 4 letter contains inaccuracies. Because 

 

305 According to the Department’s comments after reviewing a draft of this report, ATF 

had primary responsibility for the production of documents to Congress during this period. 

Axelrod told the OIG that he was involved in this production process until June 2011. He 

stated that he was reviewing the documents being produced to Congress pursuant to the 

March 31, 2011, subpoena as part of his review of Operation Fast and Furious.
391 

of this, the Department now formally withdraws the February 4 

letter. 

Cole further wrote: 

Under the unique circumstances, we have concluded that we will 

make a rare exception to the Department’s recognized protocols 

and provide you with information related to how the inaccurate 

information came to be included in the letter.306

Cole told the OIG that the final decision to withdraw the February 4 

letter and produce the documents was made by Attorney General Holder, in 

consultation with Grindler, Goldberg, himself, and other senior Department 

officials. He stated that he could not recall there being any opposition to the 

decision within the Department. 

1. Specific “Inaccuracies” Cited by Department Leadership 

Although the December 2, 2011, letter withdrew the February 4 letter, it 

did not specifically identify which portions of the February 4 letter were 

inaccurate. However, during interviews with the OIG, senior Department 

officials pointed to two sentences in the February 4 letter, one of which they 

stated was inaccurate, and a second sentence that Deputy Attorney General 

Cole characterized as “ambiguous.” These were the same two sentences 

repeatedly referred to by Sen. Grassley in numerous letters to the Department 

in 2011: 

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. ATF makes every effort to interdict weapons 

that have been purchased illegally and prevent their transportation 

to Mexico. 

The December 2 letter contained the above excerpt from the February 4 

letter, but did not directly characterize it as inaccurate. Rather, the excerpt 

was used to show the language that resulted after “drafts of the letter were sent 

to the leadership of ATF and the U.S. Attorney’s Office for review and comment, 

and thereafter circulated within those offices for review and comment by 

others.” 

 

306 DAG Cole’s December 2, 2011, letter to Chairman Issa and Sen. Grassley is 

attached to this report as Appendix F.
392 

Cole told the OIG that the second of these sentences “is probably the 

greatest inaccuracy in the letter, the most glaring inaccuracy, based on what 

we started to find out.” Grindler said that the general consensus among 

Department leadership was that this sentence was inaccurate after officials 

came to realize that ATF possibly had not interdicted weapons when it could 

have and that “surveillances had been dropped.” 

In addition to Operation Fast and Furious, Cole cited Operation Wide 

Receiver and three other ATF weapons trafficking investigations as reasons why 

this sentence was not accurate. Holder also told us that Operation Wide 

Receiver factored into why he regarded the second sentence to be inaccurate. 

Regarding the first of the two sentences, Cole stated that it was more 

“ambiguous” than the second sentence. He said he did not believe that ATF 

“knowingly” allowed the sale of weapons to a straw purchaser for 

transportation into Mexico. He noted, however, that even if a straw purchaser 

had not himself transported the weapons into Mexico, the straw purchasers 

were involved in a “joint aiding and abetting activity, and could well be drawn 

within the ambit of that sentence.” He added that it was “close enough, we’re 

not going to quibble, we’re withdrawing the letter.” 

Grindler stated that he did not have sufficient knowledge of the facts to 

state whether this first sentence was inaccurate, but noted that if the straw 

purchasers handed the weapons off to others for transportation into Mexico, 

the sentence was “literally correct.” 

2. Responsibility for Including Inaccurate Information in 

the February 4 Letter 

By releasing the internal materials to Congress, according to the 

December 2 letter, the Department leadership sought to highlight that, in 

responding to the allegations in Sen. Grassley’s letters: 

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 these supervisors was inaccurate. We understand 

that, in transcribed interviews with congressional investigators, the 

supervisors have said that they did not know at the time the letter 

was drafted that information they provided was inaccurate. 

The letter then described how inaccurate information flowed from the 

component supervisors to the officials at Main Justice by providing excerpts 

from Burton’s handwritten notes. As discussed earlier in this chapter, 
393 

Burton’s notes memorialized her conversations on January 28 with Melson and 

others, and on February 1 with Hoover and Weinstein. The December 2 letter 

pointed out that certain statements in Burton’s notes “track almost verbatim 

the inaccurate information included in the [February 4] letter.” Among the 

excerpts from Burton’s notes was the statement that “ATF doesn’t let guns 

walk.” After reviewing a draft of this report, a Department official stated that 

prior to issuing the December 2 letter, she asked Hoover by telephone whether 

he had made the statements in Burton’s notes and that Hoover said he had. 

Another Department official said he asked Weinstein who had made the 

statements, and that Weinstein answered that Hoover had made them. 

However, in Hoover’s later interview with the OIG, Hoover stated that he 

thought Weinstein had made the statement. In drafting the December 2 letter, 

Department officials would not have known that conflicting information would 

later emerge from Hoover about the source of this statement. 

In effect, the December 2 letter placed responsibility for the inaccuracies 

in the February 4 letter with Melson, Hoover, and Burke – the supervisors at 

ATF Headquarters and the U.S. Attorney’s Office who were “in the best position 

to know the relevant facts.” Cole stated that he believed that this allocation of 

responsibility was appropriate. As to those at the Department who drafted the 

letter, Cole stated that they bore no responsibility for the inaccuracies because 

they “reach[ed] out to those who should know.” He stated that it would not be 

incumbent on officials in the Office of the Deputy Attorney General or OLA to 

call a line attorney in the U.S. Attorney’s Office to gather the necessary 

information. 

Concerning the component supervisors, Cole stated that if they did not 

have the information, they supervise those who do, and he would have 

expected them to “go down and talk to the line people.” Cole emphasized that 

with respect to the February 4 letter “we were getting a very consistent story 

from both ATF and the U.S. Attorney’s Office, the entities that were responsible 

for this.” 

We asked Cole why the December 2 letter stated only that the component 

supervisors testified that they did not know the information they provided was 

inaccurate, and stopped short of representing conclusively that they in fact did 

not know the information was inaccurate. Cole responded that he was 

“[l]eaving that as an open question.” 

Other officials had different views about the allocation of responsibility 

for the February 4 letter. Holder told the OIG that the Department as a whole, 

including those at Main Justice in Washington who drafted the letter, bore 

responsibility to the extent that there was not a process in place to produce an 

accurate letter. However, he stated that it was logical for the officials at Main 

Justice to believe that the information they received from Phoenix was 

accurate. 
394 

Weich stated that it was entirely appropriate for Burton to rely on the 

representations of the component heads in drafting the letter. At the same 

time, however, he said that the Department had “accept[ed] the information 

uncritically,” and in the future should “be more questioning” of those providing 

information. 

Weich told the OIG that the Department “could have done better,” and 

cited three specific ways in which it could have done so. First, he said that the 

Department could have asked Sen. Grassley for the documentation that 

purportedly corroborated in part the allegations in the January 27 letter.307 

Second, he said that the Department could have spoken with the 

whistleblowers referred to in Sen. Grassley’s letter in an effort to get “firsthand 

information” from them about the allegations.308

Aspects of Weich’s critique of the Department’s handling of the February 

4 response are addressed in a January 26, 2012, memorandum from the 

Deputy Attorney General to heads of Department components and all U.S. 

Attorney’s Offices concerning gathering information in response to 

Congressional inquiries. This memorandum, summarized in Chapter Seven, 

reinforces the obligation of each component to undertake “rigorous efforts to 

obtain accurate and complete information from employees with the best 

knowledge of matters relevant to the congressional inquiry.” Both Holder and 

Cole stated that this memorandum was issued as a result of the Department’s 

handling of the February 4, 2011, letter. 

 Third, Weich stated that the 

February 4 response was rushed due to pressure from Burke and ATF 

Headquarters. He stated that had more time been taken in preparing the 

response, more facts may have surfaced that “might have colored the 

response.” 

 

307 Burton told the OIG that she did not recall whether she asked Sen. Grassley’s office 

for documents, but if she did, she did not remember whether she requested them before 

finalizing the February 4 letter. An OLA line attorney who worked with Burton on the letter 

said she did not recall making such a request or any discussion about requesting them.

308 As alluded to in Sen. Grassley’s January 31, 2011, letter, and according to an 

undated ATF memorandum, on January 28, 2011, ASAC George Gillett met with John Dodson, 

one of the whistleblowers who had been in contact with Sen. Grassley’s staffers, to learn the 

details of Dodson’s communications with the staffers. The memorandum stated that Gillett 

instructed Dodson to provide a detailed account of his communications in writing, but that 

Dodson wanted to seek legal counsel first. The memorandum also indicated that Newell had 

directed Gillett to determine whether Dodson had provided any grand jury material to Sen. 

Grassley’s staffers.
395 

IV. OIG Analysis 

A. Introduction 

Sen. Grassley’s letter dated January 27, 2011, to Melson contained 

exceptionally serious allegations about how ATF implemented its gun 

trafficking interdiction strategy along the southwest border. The letter stated 

that members of the Judiciary Committee had received allegations that ATF 

had “sanctioned” the sale of hundreds of assault weapons to suspected straw 

purchasers, who then transported these weapons throughout the southwestern 

border area and into Mexico. The letter further stated that two of these 

weapons were allegedly used in a firefight against CBP agents, killing Agent 

Terry. According to the letter, these allegations were partially corroborated by 

detailed documentation. 

The Department responded to Sen. Grassley on February 4, 2011, 

stating in relevant part: 

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. ATF makes every effort to interdict weapons 

that have been purchased illegally and prevent their transportation 

to Mexico. 

On December 2, 2011, after more thoroughly examining Sen. Grassley’s 

allegations, the Department concluded that the February 4 letter “contains 

inaccuracies” and withdrew it. Deputy Attorney General James Cole wrote that 

in responding to the allegations in Sen. Grassley’s letters: 

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. 

Below we assess the results of our investigation of how the February 4 

letter came to be written. For the reasons discussed in Chapters Three and 

Four, we determined that ATF did not make every effort during Operation Wide 

Receiver and Operation Fast and Furious to interdict weapons purchased 

illegally and prevent their transportation to Mexico. Thus, we agree with the 

Department that the February 4 letter contained inaccuracies. 

We also agree that Department officials relied on information provided by 

senior component officials that was not accurate. In preparing the February 4 

response to the allegations in Sen. Grassley’s January 27 letter, the primary 
396 

sources of information to Department officials about Operation Fast and 

Furious were Burke, Melson, and Hoover. As we discuss in Chapters Four and 

Five, these component officials failed to exercise appropriate oversight of the 

investigation, and to some extent were themselves receiving incorrect or 

incomplete information from their subordinates about it. These deficiencies 

contributed substantially to the provision of inaccurate information to 

Department officials who were responsible for responding to Congressional 

inquiries. 

We believe that the Department should be able to rely on the 

representations of its senior component officials in responding to Congressional 

inquiries, as it did here. However, the Department is ultimately responsible for 

representations that it makes to Congress. Department officials made 

judgments about what the allegations in Sen. Grassley’s letters meant, what 

the scope of the response should be, what type and amount of information was 

sufficient to review in preparing the response, and when the response should 

be sent. Department officials drafted, edited, approved, and signed the letter. 

In sum, we found that a poorly executed information gathering and drafting 

process and questionable judgments by Department officials contributed to the 

inclusion of inaccurate information in the February 4 letter, and therefore the 

Department shares responsibility for issuing an inaccurate letter with the 

component officials they relied upon for information. 

We also concluded that by the date of its May 2 letter to Sen. Grassley, 

senior Department officials responsible for drafting the letter knew or should 

have known that ATF had not made “every effort to interdict weapons 

purchased illegally and prevent their transportation to Mexico,” either in 

Operation Fast and Furious or other firearms trafficking investigations, and 

that the February 4 letter contained inaccuracies. We therefore concluded that 

the Department knew or should have known that the February 4 letter could 

no longer be defended in its entirety when Department officials wrote to Sen. 

Grassley on May 2. 

Indeed, we noted that the Department, in its responses to Congressional 

questions about the Fast and Furious investigation following its February 4 

letter (on March 2, March 8, April 4, and April 18), appropriately refused to 

make any substantive comments about the investigation in light of the 

additional information it had learned and its referral of the matter to the OIG in 

February. Given that senior Department officials’ confidence in the accuracy of 

the February 4 letter was decreasing rather than increasing as their internal 

review progressed, we found it troubling that the Department’s May 2 response 

letter to Sen. Grassley included a substantive statement – albeit a qualified one 

– regarding the Fast and Furious investigation. 

We believe that the problems posed by both the February 4 and May 2 

letters were made evident by Weich’s June 15 Congressional testimony in 
397 

which he stated that the Department’s denial that ATF had knowingly allowed 

straw purchasers to transport guns into Mexico remained accurate for a 

“technical reason.” 

B. Misplaced Reliance on ATF and the U.S. Attorney’s Office for 

Information 

The allegation in Sen. Grassley’s January 27 letter that ATF had 

sanctioned the sale of hundreds of assault weapons contained the implication 

that among these weapons were two that may have been used in a firefight that 

resulted in the death of a federal law enforcement officer. We do not believe 

that the gravity of this allegation was met with an equally serious effort by the 

Department to determine whether ATF and the U.S. Attorney’s Office had 

allowed the sale of hundreds of weapons to straw purchasers. This was 

particularly the case in this instance because the Department knew that 

hundreds of assault weapons had indeed been sold to straw purchasers during 

the Fast and Furious investigation and that two of those firearms had in fact 

been found at the scene of Agent Terry’s murder. 

As we discuss in Chapter Five, we believe that the Department’s initial 

handling of the information it received in mid-December 2010 – that Agent 

Terry had been killed and that two weapons found at the murder scene traced 

back to an ATF firearms trafficking investigation – was inadequate. The 

Department did not make a serious effort until February 2011 to fully 

understand the circumstances that led to this link between the ATF 

investigation and the presence of weapons at the murder scene that had been 

bought by a suspect in the investigation. For the same reasons that we believe 

the Department’s response to this significant incident was inadequate in 

December 2010, we believe that the Department should have independently 

assessed the facts surrounding the related allegations by Sen. Grassley in late 

January 2011, rather than relying on ATF’s and the U.S. Attorney’s Office’s 

assurances that they were baseless. 

In reaching our conclusions we considered the role of the OLA as the 

Department’s liaison to Congress. One of OLA’s core functions is to respond on 

behalf of the Department to inquiries from members of Congress or their staff. 

Weich told us that OLA has about 25 personnel and receives “hundreds” of 

Congressional inquiries each week. Given its relatively limited resources and 

the volume of Congressional correspondence it must process, OLA generally 

must rely on knowledgeable Department officials for information to provide 

Congress with accurate and timely responses. 

We believe that as a general proposition, this approach is reasonable and 

in most instances necessary. As many Department witnesses told us, OLA 

cannot undertake an independent review of each matter that is the subject of a 

congressional inquiry. For example, Weich told us that in congressional 
398 

communications, OLA allows the subject matter experts in the various 

components to provide relevant facts while OLA provides the “legislative 

perspective.” This is so because in addition to resource constraints, OLA does 

not possess subject matter expertise on all of the Department’s various law 

enforcement and other activities, and must therefore consult with and be able 

to rely upon those who do. 

While deferring to components is generally a reasonable approach, in a 

unique circumstance such as this, where a credible allegation has been made 

regarding potentially serious misconduct involving those components, 

deference to officials close to the activity at issue should be tempered by the 

recognition that those officials are also invested in a positive portrayal of the 

activity and their alleged involvement in it. As such, officials who should be 

knowledgeable and forthcoming about the activity may be inclined, perhaps 

even unintentionally, to shade or ignore unhelpful facts when providing 

information about their conduct to senior Department officials. This is 

particularly true where, as here, Congress seeks specific information 

concerning allegations of improper activities. Yet, as detailed above, the 

Department accepted too readily the assurances of officials from the 

components at which the allegations were aimed in drafting its February 4 

letter. 

Concerning the Department’s February 4 response, OLA Special Counsel 

Faith Burton was given primary responsibility for coordinating the response to 

Sen. Grassley’s January 27 and 31 letters. As would be expected, Burton had 

no familiarity with Operation Fast and Furious or any specific ATF 

investigation. To prepare the response, Burton followed the process she 

generally followed for responding to other congressional inquiries. She first 

met with component officials who were expected to be familiar with the subject 

matter in order to gather relevant information. She next developed a draft 

response, and then circulated the draft to the officials for comment. 

Component officials were asked for comments, to make edits, and ultimately to 

approve the response. 

During this process, Burton took appropriate steps to consult with a 

senior Criminal Division official, DAAG Jason Weinstein, whom she regarded as 

highly knowledgeable about the issues at hand. Burton told us that Weinstein 

was an experienced prosecutor who had worked with ATF and was familiar 

with gun trafficking investigations. Burton conveyed to the OIG that she held 

Weinstein in high professional regard, and told us that she valued his 

assistance in drafting the letter. 

We concluded that during the drafting process Weinstein advocated for 

ATF and the U.S. Attorney’s Office rather than responsibly gathering 

information about their conduct of the Fast and Furious investigation. 

Weinstein told the OIG that he advocated for two Department components that 
399 

“are telling me that . . . they’re getting unfairly and inaccurately trashed by a 

member of Congress.” However, we found that he did so despite indications 

during the fact-gathering and letter-drafting process that should have alerted 

him to the fact that U.S. Attorney Dennis Burke, who provided emphatic 

assurances about ATF’s conduct, was an unreliable source of information. 

Moreover, Weinstein urged Burton to adopt an aggressive posture in the 

drafting of the response and sought to enlist the support of Burke and others 

in arguing against Burton’s more measured approach to the letter. We believe 

that Weinstein’s staunch support of ATF led him to lose perspective and 

provide Burton with information that distorted what a senior component official 

(Hoover) had told them about Avila’s status as a straw purchaser in November 

2009. 

The only other official at the Department who was substantially involved 

in the drafting process between January 27 and February 4 was Senior 

Counsel Brad Smith from the Office of the Deputy Attorney General. However, 

Smith had been assigned the ATF portfolio for the Office of the Deputy Attorney 

General only approximately 7 weeks before the response to Sen. Grassley was 

drafted and, like Burton, was unfamiliar with Operation Fast and Furious and 

ATF weapons trafficking investigations generally. Moreover, during the drafting 

process, Smith failed to recall important facts about Operation Fast and 

Furious contained in material that he personally had passed along to the 

Acting Deputy Attorney General several weeks earlier in connection with the 

murder of CBP Agent Brian Terry. Despite this lack of substantive knowledge 

about ATF’s firearms trafficking activities or the allegations in Sen. Grassley’s 

letter, Smith made critical edits to the draft response toward the end of the 

drafting process. We concluded that Smith did not know enough about the 

investigation or the allegations to warrant making such important edits to the 

response, although we note that these edits were incorporated into drafts that 

were approved by senior Department and component officials before the letter 

was issued. 

As a result of the failure by Weinstein, Smith, and others in the 

Department involved in the drafting process to gain a responsible level of 

knowledge about how Operation Fast and Furious was conducted, OLA was left 

to rely on ATF and the U.S. Attorney’s Office for information. These were the 

very components that were subject to Sen. Grassley’s serious allegations, and 

as we conclude below, officials in these components provided demonstrably 

inaccurate and conflicting information to Department officials about Operation 

Fast and Furious as the February 4 letter was being drafted. 
400 

C. The Flawed February 4 Letter Drafting Process 

1. The Scope of the Response 

In his January 27 letter, Sen. Grassley indicated that he was “specifically 

writing” about “an ATF operation called ‘Project Gunrunner.’” “Project 

Gunrunner” was a broad initiative by ATF to address weapons trafficking along 

the southwest border. Operation Fast and Furious was a part of the Project 

Gunrunner initiative, as were numerous other investigations. Despite the fact 

that Sen. Grassley’s letter referred to Project Gunrunner, and did not mention 

Operation Fast and Furious, Burton and Weinstein told the OIG that they 

understood Sen. Grassley’s concerns to be about Operation Fast and Furious. 

In fact, Weinstein told the OIG that the Department’s February 4 letter was 

intended to be limited to Operation Fast and Furious. 

However, we found no evidence to indicate that this important 

definitional issue was discussed in any meaningful way during the 

Department’s drafting process. Moreover, the Department’s February 4 letter 

was completely silent on that point, and thereby failed to indicate whether its 

response was broadly intended to apply to “Project Gunrunner,” as Sen. 

Grassley’s letter referenced, or whether it was limited to Operation Fast and 

Furious, as Weinstein told us. As a result of this failure, we found that a 

reader of the letter would likely conclude that the Department’s sweeping 

denial applied to all cases under the umbrella of “Project Gunrunner,” and not 

just Operation Fast and Furious. This was, in our view, a serious drafting flaw. 

Moreover, the letter from Sen. Grassley on January 27 contained not just 

a broad allegation but also a more specific allegation. The letter broadly alleged 

that “ATF sanctioned the sale of hundreds of assault weapons to suspected 

straw purchasers, who then allegedly transported these weapons throughout 

the southwestern border area and into Mexico.” The letter also more 

specifically alleged that one of the suspected straw purchasers bought three 

assault rifles, two of which “were then allegedly used in a firefight on December 

14, 2010 against Customs and Border Protection (CBP) agents, killing CPB 

Agent Brian Terry.” It was the Department’s sweeping response to the first 

allegation – that “ATF makes every effort to interdict weapons that have been 

purchased illegally and prevent their transportation to Mexico” – that senior 

Department officials most readily found inaccurate once ATF’s interdiction 

efforts were scrutinized. Yet, in formulating the Department’s response, 

Weinstein, Burke, Hoover, and other officials focused their attention and 

discussion almost exclusively on the more specific allegation concerning the 

link between ATF’s actions and weapons found at Agent Terry’s murder scene. 

E-mail messages between and among these officials reflect their preoccupation 

with this allegation, which Weinstein described as “the most salacious and 

damaging to ATF, both short- and long-term.” 
401 

Upon receiving Sen. Grassley’s January 27 letter, both ATF and the U.S. 

Attorney’s Office immediately concentrated their information-gathering efforts 

on Operation Fast and Furious suspect Jaime Avila and his history of weapons 

purchases, including his January 16, 2010, purchase of the two assault 

weapons found at Agent Terry’s murder scene. Melson asked his subordinates 

for “all the material (documents) including all reports tantamount to the case 

record on the defendant who sold the weapons involved in the shooting with 

the CBP.” ATF e-mails indicate that the Phoenix Field Division did not gather 

the full investigative file for Melson as he requested. SAC William Newell 

responded on January 27 and 28 by sending to ATF Headquarters all ROIs and 

other materials related only to Avila. Melson never followed up on his request 

for “all the material,” and in fact told us that he did not review any of the ROIs, 

including those pertaining to Avila, until March 2011. On the evening of 

January 27, 2011, the U.S. Attorney’s Office Criminal Division Chief Patrick 

Cunningham requested AUSA Hurley to write a memorandum for Burke 

documenting Avila’s firearm purchases “as quickly as possible.” 

Officials at the Department, and in particular Weinstein, reinforced and 

perpetuated this narrow focus on Avila. Burton argued that the Department’s 

response should not address the pending Terry murder investigation, and 

sought to dissuade Weinstein from adding language about it. Weinstein 

rejected Burton’s concerns, and separately urged Burke and an official in the 

Office of the Deputy Attorney General to press for a more “forceful rebuttal” of 

what he perceived to be the allegation that concerned the Terry murder. He 

also engaged in protracted e-mail discussions with Burke and Burton about 

the precise meaning of the allegation concerning the weapons at the Terry 

murder scene, including whether it meant that the weapons had been used to 

kill Agent Terry and whether the weapons had been transported to Mexico. 

Finally, Burton’s and Smith’s notes from discussions with Melson, 

Hoover, Rasnake, and Weinstein reflect that specific information about the 

Avila weapons purchases was discussed at length. Also discussed were the 

inconclusive results of the forensic testing of the weapons to determine whether 

they were used to murder Agent Terry, and whether the weapons had ever been 

transported to Mexico. 

The other portions of the notes that pertain to the allegations in the 

January 27 letter consist primarily of broad policy statements and assurances 

that ATF interdicts illegally purchased weapons. Burton relied on one such 

statement – “We always try to interdict weapons purchased illegally” – in 

writing “ATF makes every effort to interdict weapons that have been purchased 

illegally and prevent their transportation to Mexico” in the February 4 letter. 

This language appeared in the first draft of the letter and remained unchanged 

through the final signed version. Except for a single passing reference to this 

sentence in a February 3 e-mail from Smith to Hoover and Burke, we found no 
402 

indication that it was ever discussed during the editing process. As noted, this 

statement inaccurately characterized ATF’s weapons interdiction efforts. 

The evidence shows that Department officials’ efforts to respond to Sen. 

Grassley revolved almost entirely around what Burke and Weinstein perceived 

to be the most damaging aspect of the allegations in his letter: that ATF 

sanctioned the sale of weapons used in a firefight that resulted in the death of 

Agent Terry. Confident that ATF did not know about the purchase of the 

weapons found at the Terry murder scene until after the purchase, and 

therefore had not “sanctioned” the sale, the Department 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. 

Records we reviewed show that Department officials deliberated 

extensively over the wording of this sentence. Due to last minute edits by 

Office of the Deputy Attorney General and OLA officials, specific references to 

Agent Terry and Avila’s January 16, 2010, purchase of the weapons found at 

the murder scene were struck from the sentence in the final response. 

However, the sentence revealed a fundamental failure on the part of the 

Department to appreciate the full scope of the allegation, which focused as 

much on allowing straw buyers to purchase weapons as it did on allowing the 

transporting of the weapons throughout the southwest border area and into 

Mexico. 

While Department officials devoted considerable attention to the specific 

allegation about Agent Terry’s death, they paid virtually no attention to the 

more general allegation that ATF sanctioned the sale of hundreds of assault 

weapons to suspected straw purchasers. Consequently, ATF’s activities 

concerning the purchase and transport of hundreds of weapons in Operation 

Fast and Furious and other investigations were not scrutinized before the 

February 4 letter was sent. We believe that the Department should not have 

included such a sweeping and categorical statement, based solely on a senior 

ATF official’s comment, in its response to the allegations in Sen. Grassley’s 

letters without attempting to confirm its accuracy. 

As discussed below, the failure to ensure the accuracy of the 

representations in the February 4 letter was particularly troubling in light of 

documentation readily available to the Department officials involved in drafting 

the letter and problematic factual representations from ATF and U.S. Attorney’s 

Office officials that they received during the drafting process. 
403 

2. Inaccurate Information from Component and 

Department Officials 

We found numerous instances in which various officials provided 

factually erroneous information to the Department officials who were drafting 

the February 4 response. 

This inaccurate information was significant because it pertained to Avila 

and his role in Operation Fast and Furious, and was therefore relevant to the 

allegation in Sen. Grassley’s January 27 letter that ATF Headquarters, U.S. 

Attorney’s Office, and Department officials considered most important. 

Weinstein, who stated that he relied on component officials for information 

about Operation Fast and Furious, yet realized that Burke had provided 

inaccurate information on a key point, should have understood this to be an 

indication that Burke was not a reliable source of information about the 

investigation generally, but did not. 

a. Burke’s Inaccurate Statements 

On January 31, 2011, in response to a question from Weinstein about 

the weapons linked to the Terry murder, Burke wrote: 

Purchased at [FFL1] before the investigation began. 

New (warped) standard – you should have stopped this gun from 

going to Mexico even before your investigation began, even though 

the sale is legal, even though the dealer has no reporting 

requirement, even though the dealer never even volunteered this 

info. 

In fact, Avila purchased the two assault weapons found at the Terry 

murder scene on January 16, 2010, many weeks after Operation Fast and 

Furious had begun and Avila had been designated as a suspect by ATF in its 

case management system. Accordingly, Burke’s statement that Avila had 

purchased the weapons found at the Terry murder scene “before the 

investigation began” was incorrect. 

Burke acknowledged in a December 2011 interview with congressional 

staffers that his statement that Avila had purchased the weapons before the 

investigation began was “inaccurate,” but said that he did not make the 
404 

inaccurate statement intentionally. He told the staffers that his inaccurate 

statement reflected that he “didn’t fully know the facts at that time.”309

As described earlier in this chapter, evidence we reviewed strongly 

suggests that on January 28, prior to making the statements in his January 31 

e-mail to Weinstein, Burke received and read a memorandum from Hurley, the 

lead prosecutor in the case, detailing Avila’s weapons purchases. The 

memorandum specifically stated that Avila was entered into ATF’s case 

management system “as a suspect in the investigation” in November 2009, 

nearly 2 months before he purchased the weapons later found at the Terry 

murder scene. Moreover, just a few days earlier, Burke had held a press 

conference announcing the Fast and Furious indictment, which made clear 

that the investigation began before January 2010. Yet, Burke repeated this 

same inaccurate information – that Avila bought the guns traced back to the 

murder scene before the investigation began – on February 4, in an e-mail he 

sent at 12:14 a.m. to Hoover, Smith, Burton, and Weich. 

Weinstein quickly learned that the representation Burke made to him in 

the January 31 e-mail was incorrect. Weinstein and Burton had a telephone 

conversation with Hoover on February 1. Burton’s notes reflect that during the 

conversation, Hoover stated that on November 24, 2009, Avila was “known to 

be a straw.” Weinstein told the OIG that he understood from this conversation 

that Burke’s statement the day before that Avila purchased the weapons before 

the investigation began was incorrect. Weinstein said, however, that Burke’s 

error did not diminish his confidence in Burke’s assurances that Sen. 

Grassley’s allegations were wrong. Weinstein stated that he would not have 

expected Burke to know “the details of even a purchase of significance like 

that,” but would have expected Burke to know whether his prosecutors “were 

trying to get guns or not trying to get guns.” 

We believe this was a mistake on Weinstein’s part. Given Weinstein’s 

and Burke’s intense focus on the allegation that pertained to Avila’s purchase 

of weapons found at the murder scene, Burke’s inaccurate statement about a 

fact that was fundamental to this issue should have alerted Weinstein to be 

cautious about Burke’s reliability. It also should have caused Weinstein to ask 

more probing questions about Burke’s more general representations regarding 

the conduct of Operation Fast and Furious. 

 

309 The OIG was unable to interview Burke regarding the February 4 letter because 

Burke resigned as U.S. Attorney in August 2011 and, through counsel, declined the OIG’s 

subsequent request to be interviewed about his involvement in drafting that letter.
405 

b. Weinstein’s Inaccurate and Incomplete 

Characterization of Information about Avila 

Rather than credit Hoover’s statement to Burton and him that ATF knew 

Avila was a straw purchaser as of November 24, 2009, Weinstein distorted it. 

Following the February 1 conversation with Hoover and Burton, Weinstein met 

again with Burton to help her “interpret” what had been discussed with 

Hoover. Burton’s notes of this second conversation show that Weinstein 

inaccurately characterized Hoover’s statement about Avila’s status as a suspect 

as follows: 

Straw purchaser of that gun later became a [defendant] but wasn’t 

known to be a sp [straw purchaser] at the time of the purchase. 

He’s now been indicted in F&F. 

Weinstein told us that he understood Hoover to mean in the earlier 

conversation that Avila was only a suspected straw purchaser, and that he 

could not yet be proved to be a straw purchaser at the time of the purchase. 

Yet, when shown a copy of Burton’s notes from the earlier conversation, Hoover 

told us that the statement about Avila was not accurate and could not be 

reconciled with what he had said (also as recorded by Burton). As noted, Avila 

was entered into ATF’s case management system as a suspect in Operation 

Fast and Furious in November 2009, before he purchased the weapons found 

at the murder scene. We determined that Weinstein’s interpretation of what 

Hoover said about Avila’s status at the time of the purchase in January 2010 

conflicted with Hoover’s original characterization.310

Weinstein told us that “neither Faith [Burton] or I had substantive 

knowledge of the facts that would have allowed us to prepare a response” to 

Sen. Grassley. He said he relied upon Hoover and Burke’s emphatic and 

categorical assurances that the information in Sen. Grassley’s January 27 

letter was false, and that the Department’s response was accurate. We were 

therefore concerned that rather than relying on Hoover’s factual statement 

about Avila’s status as a suspect, Weinstein interpreted it in a way that 

conflicted with Hoover’s statement, and made other substantive statements to 

Burton about the investigation that went beyond the scope of their 

conversation with Hoover on February 1. 

It appeared to the OIG that Weinstein’s actual role in the drafting process 

went beyond his portrayal of it as merely helping to collect information and 

 

310 We found it significant that Burton recorded Hoover as stating that Avila was 

“known” to be a straw purchaser in November 2009 and not merely “suspected” of being one. 

As noted, Hoover told the OIG that Burton accurately captured what had been stated during 

the February 1 conversation.
406 

draft the Department’s response. E-mail records and the testimony of 

witnesses we interviewed showed Weinstein to be a staunch supporter of ATF 

and its law enforcement mission, and that he described himself as such. We 

believe that in his zeal to protect ATF’s interests, Weinstein lost perspective and 

provided Burton with distorted information about Hoover’s view of Avila’s 

status as a straw purchaser. Thus, in helping to draft the Department’s 

response to the very serious allegations leveled at ATF, we believe Weinstein 

failed to act in the best interests of the Department by advocating for ATF 

rather than responsibly gathering information about its activities. 

A similar issue concerning Weinstein’s characterization of information 

about the firearms found at the Agent Terry murder scene arose after the 

February 4 letter was issued. In connection with a February 16 letter from 

Sen. Grassley seeking information about Avila, Weinstein (along with Breuer 

and Raman) was asked by Grindler, on behalf of the Attorney General, “Do we 

have info on whether a gun sold in the operation was used in the shooting [of 

Agent Terry]”? After consulting with Burke and Newell, Weinstein replied in 

relevant part: 

Two of the guns sold during the investigation were found near the 

scene of the shooting of Agent Terry. These guns had been 

purchased about 11 months earlier, by a person later determined 

to be part of the trafficking ring. ATF was not notified of the sales 

until after they had been completed. 

Similar to his interpretation of Hoover’s statement to Burton, Weinstein’s 

e-mail suggested that Avila was not even a suspect when he purchased these 

guns.311

c. Conflicting Information from Melson and Hoover 

 Unlike Weinstein’s interpretation of information that Hoover provided 

to Burton and that Burton recorded in her notes, this e-mail response was 

drafted directly by Weinstein, and was for the purpose of providing information 

to the Attorney General. We note that both the Burton notes and the e-mail to 

Grindler involved a matter that Weinstein regarded as the basis for the most 

damaging allegation against ATF in Sen. Grassley’s letters. 

Smith’s notes show that Melson told him on January 28, 2011, that 

“Agents assured me that we [did not] know the guy was a straw purchaser at 

time of purchase.” According to both Smith and Melson, the “guy” was a 

reference to Avila. 

 

311 As described earlier in this report, Avila was entered into ATF’s case management 

system as a suspect on November 25, 2009, after ATF surveillance confirmed that he 

purchased firearms with another suspected straw purchaser the day before.
407 

However, as indicated above, Burton’s notes show that Hoover correctly 

told Burton and Weinstein on February 1, 2011, that Avila was “known to be a 

straw” as early as November 24, 2009. Later that day, as described above, 

Weinstein met with Burton and revised Hoover’s statement to read that Avila 

“wasn’t known to be a [straw purchaser] at the time of the purchase.” 

The OIG was unable to determine whether Burton or Smith compared 

the information they received from Hoover and Melson and had an opportunity 

to detect the conflict in the information about Avila. It is also possible that 

Burton would not have perceived a conflict in the information because 

Weinstein’s interpretation of Hoover’s statement aligned with Smith’s notes of 

what Melson said about Avila. In either event, the conflicting evidence is an 

indication of the poor execution of the information gathering process, 

particularly with regard to a fact that was undisputed and widely known within 

ATF and the U.S. Attorney’s Office – that Avila was a straw purchaser – and 

had been made known to Smith himself on December 17, 2010, following Agent 

Terry’s murder. 

d. Newell’s Inaccurate Information 

Newell also provided inaccurate information to ATF Headquarters about 

Avila. In a January 27, 2011, e-mail to McMahon, Newell wrote that ATF was 

not aware of Avila’s “role” in the investigation in January 2010. He also wrote 

that Avila was first seen purchasing weapons with another major straw 

purchaser, Patino, after he had bought the weapons found at the Terry murder 

scene, and it was only at that point that he was considered part of the same 

organization. However, an early ROI from the case shows that Avila and Patino 

each bought 5 firearms during 2 separate purchases on November 24, 2009, 

and were together for both purchases. As noted above, Avila was entered into 

ATF’s case management system the next day. 

Newell received this earlier ROI on January 28 and forwarded it that 

same day to McMahon along with 30 other ROIs about Avila, without correcting 

the erroneous information about Avila in his January 27 e-mail. McMahon 

forwarded Newell’s January 27 and January 28 e-mails to Chait. Chait did not 

forward the information in Newell’s e-mail further up the supervisory chain to 

Hoover. According to Chait’s counsel, Chait provided both Hoover and Melson 

with binders containing the Avila ROIs. Although McMahon and Chait saw 

drafts of the February 4 letter, neither made substantive comments. Hoover, 

who did have a substantive role in approving the letter, did not receive this 

inaccurate information from Newell, and in fact provided accurate information 

to Department officials about Avila. 

Thus, we found that Newell’s provision of inaccurate information to ATF 

Headquarters did not have any direct effect on the drafting the February 4 

letter. Moreover, because Newell followed this inaccurate information with a 
408 

document showing the information to be inaccurate, it appears unlikely to us 

that Newell deliberately sought to mislead officials at ATF Headquarters about 

what the Phoenix Field Division knew about Avila. However, we found that 

Newell was negligent in failing to respond accurately to his supervisor’s inquiry 

because the information that was requested was readily available to him and 

because the statement that he did make was wholly inaccurate and had no 

support in any ATF records we reviewed. 

We also note that neither ATF Headquarters nor Department officials 

ever provided any drafts of the Department’s February 4 response to Newell or 

others in the Phoenix Field Division before the letter was sent to Sen. Grassley. 

While we believe as a procedural matter that it was a mistake not to provide 

these field division officials with an opportunity to comment on the proposed 

response, the evidence that we developed during our review suggests that these 

officials would not have identified any inaccuracies in it because they 

maintained they were taking appropriate action during the investigation in 

every respect.312

3. Failure to Review Material Relevant to the Allegations 

In his January 27, 2011, letter to Acting Director Melson, Sen. Grassley 

wrote that the allegations his office received “were accompanied by detailed 

documentation which appears to lend credibility to the claims and partially 

corroborates them.” 

Upon receiving the letter, Melson asked Rasnake to request the 

documents from Sen. Grassley. Rasnake discussed Melson’s request with 

McDermond, and concluded that Sen. Grassley’s staff was unlikely to provide 

the documents, and that it was “not worth the risk of offending them[.]” ATF 

Headquarters did not request the documents. 

Concurrently with ATF’s decision not to request documents from Sen. 

Grassley, ATF forwarded the January 27 letter to OLA. Although ATF prepared 

a draft response and sent it to Department officials for review on February 1, email records and statements from OLA and ATF officials indicate that OLA had 

already assumed responsibility for drafting the response. 

 

312 As discussed earlier, the information that the Phoenix Field Division was asked to 

provide in connection with drafting the February 4 response was primarily related to Avila’s 

firearms purchases. It cannot be known whether requests to that office for a broader array of 

information about Operation Fast and Furious and other firearms trafficking investigations 

ultimately would have resulted in providing more accurate information to Congress on 

February 4.
409 

Weich told us that it is not unusual for members of Congress to choose 

not to share documents it may have concerning matters that it inquires about, 

but that it would not have been inappropriate to ask Sen. Grassley for the 

documents he referred to in his January 27 letter. Burton told us that she did 

not recall whether she asked Sen. Grassley’s office for documents, but if she 

did, she did not remember whether she requested them before finalizing the 

February 4 letter. The OLA line attorney who worked with Burton on the 

February 4 response stated that she did not recall making such a request or 

any discussion about requesting them. 

Under the circumstances – the serious nature of the allegations, the fact 

that Sen. Grassley wrote that there was “detailed documentation which 

appears to lend credibility to the claims and partially corroborates them,” and 

the demonstrably inaccurate information provided by Burke – we believe that 

the Department officials who drafted the response should have reviewed 

materials from the Operation Fast and Furious investigation before responding. 

It would not have been necessary to depend on Sen. Grassley for access to this 

information, which as was learned later, came from ATF’s and the U.S. 

Attorney’s Office’s own files, e-mails, and databases. 

As discussed above, the limited review of materials concerning Avila at 

the U.S. Attorney’s Office and ATF’s Phoenix Field Division was inadequate to 

inform the Department’s response to the full scope of Sen. Grassley’s 

allegations. At the same time, we do not believe Department officials needed to 

conduct an exhaustive review of the entire investigative file to understand the 

allegations before responding to them. Rather, officials with responsibility for 

drafting and approving the response could have reviewed basic materials about 

the investigation, such as briefing papers, summaries, and other documents 

that would have familiarized them with the scale of the investigation and the 

investigative techniques being employed.313

Knowledge of the disparity between the number of weapons purchased 

by suspected straw purchasers and the number of the weapons recovered or 

seized during the investigation alone may have caused Department officials to 

respond in a more measured manner. Similarly, the high volume of weapons 

purchased and the unusually long duration of the investigation may have 

raised questions about whether suspicious purchases were occurring with 

ATF’s knowledge but without adequate efforts to interdict the weapons, as Sen. 

Grassley’s allegations plainly implied. These questions, in turn, may have led 

to a review of the Title III affidavits, and to ROIs documenting ATF’s 

 

313 Smith, Burton, and Weich first received the Operation Fast and Furious indictment 

on the morning of February 4.
410 

relationship with the cooperating FFLs and weapons purchases for which ATF 

had advance notice. 

It is of course impossible to know whether a review of these materials 

would have resulted in a more accurate response. But our review of how the 

February 4 response was drafted suggests that the lack of familiarity with the 

investigation played a role in the ill-conceived wording of the response. Smith’s 

and the OLA line attorney’s edits to the statement initially intended to address 

the allegation about the weapons at the Terry murder scene resulted in the 

clumsy and only marginally responsive denial that ATF “knowingly allowed the 

sale of assault weapons to a straw purchaser who then transported them into 

Mexico” – a denial that did not address the issue of whether ATF knowingly 

allowed straw purchasers to buy weapons at all.314 Smith told us that when he 

was making edits to the response he was unaware that weapons purchased in 

the investigation were being recovered in the United States as well as in 

Mexico, and that Agent Terry had been killed in the United States.315

We concluded that Smith and the OLA line attorney were not 

knowledgeable about Operation Fast and Furious and should not have been 

speaking for the Department about it by making substantive changes to the 

draft response letter, although we note that their edits were incorporated into 

drafts that were approved by senior Department and component officials. We 

also concluded that the statement in the February 4 letter that ATF had not 

“‘sanctioned’ or otherwise knowingly allowed the sale of assault weapons to a 

straw purchaser who then transported them into Mexico” was not the result of 

a narrowly crafted denial of the allegations or an attempt to create a literally 

 The OLA 

line attorney told us that she understood from internal discussions about the 

allegations that ATF had not allowed straw purchasers to take weapons to 

Mexico, and that she was trying to convey this understanding in a more 

concise fashion in her edits.

 

314 A similarly narrow statement in the Department’s May 2, 2011, letter to Sen. 

Grassley resulted in criticism from Sen. Grassley in his May 3, 2011, response. In this 

exchange, Sen. Grassley observed that the Department was defending its February 4 letter by 

narrowly arguing, “It remains our understanding that ATF’s Operation Fast and Furious did 

not knowingly permit straw buyers to take guns into Mexico.” Sen. Grassley characterized the 

Department’s position as an attempt to “argue over fine distinctions to confuse the issue.” We 

believe that Sen. Grassley’s letters to the Department reflect multiple concerns, including 

whether ATF had allowed known or suspected straw purchasers to buy weapons at all. The 

Department’s emphasis in its letters to Congress on ATF’s lack of knowledge that the assault 

weapons bought by straw purchasers were being transported to Mexico arguably can be traced 

back to Brad Smith’s decision on February 3 to remove “southwest border area” from the 

February 4 response.

315 Smith stated that he did not recall these facts as he was helping to draft the letter, 

even though on December 17, 2010, he had sent an e-mail message to then-Acting Deputy 

Attorney General Grindler that included these facts.
411 

true statement. Rather, we concluded it was the byproduct of rushed and 

sloppy drafting by uninformed and misinformed officials. 

When Department and ATF officials began to closely review Operation 

Fast and Furious in March 2011, it did not take long for them to read the Title 

III affidavits and ROIs from the case and determine that there were questions 

that needed to be resolved about Operation Fast and Furious. By this time, 

based on what they were learning about Operation Fast and Furious and other 

ATF firearms investigations, senior officials, including Cole and Weich, began 

having doubts about some of the statements in the February 4 letter. Melson 

read the Title III affidavits on an airplane flight, and immediately raised 

concerns. Axelrod read most of the ROIs from the case over a weekend, and 

immediately asked questions of the U.S. Attorney’s Office about potentially 

problematic investigative steps in Operation Fast and Furious. 

Despite Weich’s efforts to slow the response drafting process, we found 

that Department officials ultimately did not take sufficient time to obtain and 

review the “detailed documentation” cited by Sen. Grassley in his January 27 

letter, as well to determine whether ATF or the U.S. Attorney’s Office had 

documentation in their possession that was relevant to the allegations. This 

was, in our view, a significant flaw in the drafting process for the February 4 

response. 

4. Knowledge of Operation Wide Receiver 

As we describe in Chapter Three, Weinstein became aware in April 2010 

that ATF had failed to interdict illegally purchased weapons in Operation Wide 

Receiver. According to Weinstein, after he informed Breuer of this, Breuer told 

him to bring the matter to the attention of ATF leadership.316

At the Department, Breuer, Weinstein, and a few other Criminal Division 

officials knew about Operation Wide Receiver. As Breuer would later testify to 

Congress, he made a mistake by not telling senior Department leadership 

about the problems with Operation Wide Receiver when he learned of them in 

April 2010, and for failing to draw a connection between those problems and 

the allegations concerning the conduct of Operation Fast and Furious in 

January and February 2011. 

 Weinstein, an 

official from the Criminal Division’s Gang Unit, and two public affairs officials 

discussed Operation Wide Receiver with Hoover and McMahon in April 2010, 

after the investigative phase of Operation Wide Receiver had concluded. 

 

316 However, as we concluded in Chapter Three, the focus of the meeting was on 

managing media challenges surrounding the indictments in Operation Wide Receiver.
412 

Shortly before becoming involved in responding to Sen. Grassley’s 

January 27 and 31 letters, Weinstein discussed Operation Wide Receiver in 

connection with Operation Fast and Furious. In a January 24, 2011, e-mail to 

Trusty about the unsealing of the indictment in Operation Fast and Furious, 

Weinstein also referred to Operation Wide Receiver, describing it as the case 

“we made with the cooperating FFL, where we inherited it after a lot of guns 

had been permitted to walk[.]” 

Yet Weinstein told us that when he became involved a few days later in 

drafting the Department’s response to Sen. Grassley’s January 27 and 31 

letters, he “wasn’t thinking about Wide Receiver at all.” He stated that he did 

not “make the connection” between that investigation and Sen. Grassley’s 

allegations, which he said he understood to pertain to Operation Fast and 

Furious. Weinstein described his conscious awareness of Operation Wide 

Receiver at the time of Sen. Grassley’s letters as being between a unilateral 

decision not to bring it to anyone else’s attention and a “complete bout of 

amnesia” in which he forgot the existence of the case entirely. Weinstein stated 

that he did not make a relevancy calculation about Operation Wide Receiver at 

the time, but in any event did not believe it was relevant to the January 2011 

allegations being raised by Sen. Grassley. He stated that if he had thought 

about Operation Wide Receiver, he would have “invited people to . . . make 

their own judgment” about its relevancy to the allegations, but that he did not 

think about it. 

In describing why he thought it was appropriate not to have made the 

connection between Operation Wide Receiver and the more recent allegations, 

Weinstein told us that he viewed Operation Wide Receiver as an “aberration” 

that occurred under different ATF and U.S. Attorney’s Office leadership. He 

stated that it was only when he subsequently learned that similar tactics had 

been employed “on our watch” that he believed Congress should be told about 

Operation Wide Receiver. 

We were not persuaded by Weinstein’s assertion that Operation Wide 

Receiver was properly viewed as an “aberration” that had no relevance to the 

allegations. Both investigations had the same strategic goal – to follow guns up 

an organizational chain to build a large gun trafficking case. Both 

investigations involved many of the same issues and tactics, including the use 

of physical and electronic surveillance; the use of cooperating FFLs; and the 

bulk purchase of weapons by suspected straw purchasers and the 

transportation of those weapons throughout the southwest border area and 

into Mexico. Additionally, both investigations were run out of the Phoenix Field 

Division under the same SAC, although Weinstein told the OIG that he was not 

aware of this fact until after the February 4 letter was drafted. 

We reject the notion that Operation Wide Receiver lacked relevance 

because it was carried out under different leadership at the U.S. Attorney’s 
413 

Office and ATF Headquarters. As Weinstein knew from having been an AUSA 

for many years, while U.S. Attorneys and the ATF Director may change with 

administrations, the career line agents and prosecutors do not, thus ensuring 

institutional continuity and accountability. Dismissing the relevance of a 

similarly flawed investigation because it happened under another 

administration’s “watch” is not what we believe should be expected of a senior 

Department official. 

Weinstein also told us that in his view, Operation Wide Receiver did not 

make the February 4 letter inaccurate. That, of course, was not his decision to 

make, and senior Department officials reached a different conclusion than 

Weinstein after they learned about Operation Wide Receiver and its significance 

to the accuracy of the February 4 letter. Attorney General Holder stated that if 

Weinstein had shared his knowledge about Operation Wide Receiver, the 

February 4 letter may have been written in a more “nuanced” way and not been 

as “forward leaning.”317

Because of her role in coordinating the drafting process, we found 

Burton’s observations on this point particularly significant. Burton did not 

learn of Operation Wide Receiver until several weeks after the February 4 letter 

was issued. She told the OIG that it was impossible to speculate on whether 

the letter would have been written differently had she known. However, she 

stated that with knowledge of Operation Wide Receiver, Sen. Grassley’s 

allegations “wouldn’t have been as unheard of as it seemed at the time.” She 

added that Operation Wide Receiver “would have been relevant to the questions 

we were asking internally.” 

 Weich told the OIG that while he was sympathetic to 

Weinstein’s claim that he had simply failed to “make the connection” between 

Operation Wide Receiver and Operation Fast and Furious, it was indisputable 

that the information would have changed the way he would have approached 

the February 4 letter. 

Breuer stated that the relevance of Operation Wide Receiver to Operation 

Fast and Furious would have been “tenuous, but it would have suggested that 

at least on one other occasion in the agency’s history when involved in a gun 

trafficking case, agents lost track of guns, and we’re aware that guns were 

ending up in Mexico.”

As noted earlier in this chapter, in a written statement provided in 

connection with his November 1, 2011, testimony before Congress, Breuer 

publicly apologized for not “drawing a connection” between Operation Wide 

 

317 Holder similarly stated that knowledge of Operation Wide Receiver “certainly would 

raise . . . your sensitivity” in connection with learning of the circumstances of Agent Terry’s 

death in December 2010, and that “you might start asking questions” about those 

circumstances.
414 

Receiver and the allegations about Operation Fast and Furious. Breuer stated 

that it was a mistake not to have alerted others in the Department to the 

similarities between the two investigations, and that he regretted not doing so. 

We agree that Breuer should have informed senior Department leadership that 

ATF had used tactics similar to those alleged in Sen. Grassley’s letters in a 

prior investigation. Moreover, given Weinstein’s far greater involvement than 

Breuer’s in drafting the February 4 response, and his more extensive 

knowledge of both Operation Wide Receiver and Operation Fast and Furious, 

we were troubled by Weinstein’s failure to recognize in his interviews with the 

OIG the relevance of Operation Wide Receiver to the January 2011 allegations. 

We believe that knowledge of ATF’s use in Operation Wide Receiver of the 

same type of investigative tactics at issue in Sen. Grassley’s letters would have 

been highly relevant to the Department’s drafting process. We believe 

Weinstein should have drawn a connection between the two investigations so 

that he could have told others working on the response about it and let those 

individuals make their own judgments about its relevance in responding to 

Sen. Grassley. 

D. The Department’s Post-February 4 Statements to Congress and 

the Withdrawal of the February 4 Letter 

As described in this chapter, the Department withdrew the February 4, 

2011, letter on December 2, 2011. Prior to withdrawing the letter, Department 

officials made written and oral statements to Congress about the February 4 

letter that we believe were in tension with what they learned through their 

otherwise responsible (albeit belated) post-February 4 effort to understand 

ATF’s investigative activities in Operation Fast and Furious. 

Most notably, in responding to a question from Sen. Grassley to Attorney 

General Holder on April 13, 2011, as to whether the Department stood by “the 

assertion . . . that the ATF whistleblower allegations are ‘false’ and specifically 

that ATF did not sanction or otherwise knowingly allow the sale of assault 

weapons to straw purchasers,” Weich, on behalf of the Department, wrote in a 

letter dated May 2: 

It remains our understanding that ATF’s Operation Fast and 

Furious did not knowingly permit straw buyers to take guns into 

Mexico. 

Department officials told us that this substantive response was 

motivated by two factors. First, officials stated that, in his April 13 letter, Sen. 

Grassley had meaningfully changed the Department’s original response in its 

February 4 letter and that they wanted to correct the record on this point. 

Second, officials said that they wanted to respond to what they believed to be 

the crux of the allegation in Sen. Grassley’s January 27 letter: that ATF had 
415 

knowingly allowed straw purchasers to take firearms into Mexico. As we 

described earlier in this chapter, Department officials considered two options in 

responding to Sen. Grassley’s truncated recitation of the February 4 letter. 

One of these options was to correct the misquoted language without further 

substantive comment. Internal e-mails, and the final May 2 letter itself, shows 

that Department officials decided to both correct the record and restate a 

portion of its February 4 response, but in a far narrower way. 

The Department’s reformulated assertion that “ATF’s Operation Fast and 

Furious did not knowingly permit straw buyers to take guns into Mexico” 

differed from the February 4 statement in two fundamental respects. First, it 

did not address the portion of the statement in the February 4 letter denying 

that “ATF ‘sanctioned’ or otherwise knowingly allowed the sale of assault 

weapons to straw purchasers.” Second, the May 2 statement for the first time 

limited the Department’s denial of gunwalking to Operation Fast and Furious. 

Deputy Attorney General Cole and other Department officials told the 

OIG that they disagreed with the suggestion that the May 2 letter was 

deliberately drafted to state a literal truth – that ATF had not knowingly 

allowed straw buyers (as distinguished from third parties) to take firearms into 

Mexico. Rather, the officials stated, they sought in the letter to distinguish 

between ATF knowingly allowing firearms to go to Mexico versus negligently

allowing firearms to go to Mexico. 

We believe that the Department should not have made this statement in 

its May response to Sen. Grassley. Regardless of whether there was any intent 

to draw a distinction between straw purchasers and third parties, senior 

Department officials knew or should have known that while ATF may not have 

allowed straw purchasers to buy firearms so that they themselves could take 

the guns to Mexico, ATF had in many instances allowed straw purchasers to 

buy firearms knowing that a third party would be transporting them to Mexico. 

The review of the Operation Fast and Furious case file that had been conducted 

by Department officials to this point, including the Title III affidavits, indicated 

that suspects were buying guns for the purpose of getting them into Mexico. 

Moreover, ATF was aware from later seizures that some of those firearms did in 

fact end up in Mexico. Thus, the May 2 letter was true only in the most literal 

sense, even if it was not intended to be read that way. 

The Department also limited its narrowly drawn denial to Operation Fast 

and Furious, something it did not do when it used similar wording in its 

February 4 denial. According to an e-mail from Burton to Weich about this 

limitation, officials had not yet “checked all other ATF operations,” and thus 

would have been uncertain whether the Department could make the same 

denial as to other ATF investigations covered under the allegations in Sen. 

Grassley’s letters and its February 4 response. Under these circumstances, we 

believe the Department should not have resorted to a narrowly worded denial of 
416 

such a serious allegation, particularly when officials in the Office of the Deputy 

Attorney General knew or should have known by that date that they could not 

reaffirm the accuracy of the entire February 4 letter.318

Lastly, after reviewing a draft of this report, Department officials told the 

OIG that from late February through at least May 2 they continued to receive 

assurances from component officials, including senior component officials, that 

ATF had not knowingly allowed firearms to cross into Mexico. They indicated 

that sometimes these assurances took the form of statements that ATF had not 

let guns “walk” and had not “watched” or “observed” firearms enter Mexico. 

These officials said that assurances were also provided in the form of 

descriptions from the components about how Operation Fast and Furious had 

been conducted. We noted, however, that during this same period, based on 

what they were learning about Operation Fast and Furious and other ATF 

firearms investigations, senior Department officials, including Cole and Weich, 

began having doubts about some of the statements in the February 4 letter – 

statements that had been based on the assurances of these same senior 

component officials. We therefore question the significance or relevance of 

these ongoing assurances to the increasingly skeptical Department officials 

who issued the May 2 letter. 

 

318 By May 2, officials in the Office of the Deputy Attorney General, including those who 

helped draft the May 2 letter, were aware of several facts that placed in serious doubt 

assertions in the Department’s February 4 letter. In March, Axelrod reviewed ROIs from 

Operation Fast and Furious that he told us raised questions about whether ATF had 

interdicted firearms purchased by straw purchasers at every opportunity when it had probable 

cause and the ability to do so. On March 3, Smith wrote to Goldberg to advise that “[l]ast 

night, ATF found a document indicating that, on at least one occasion, an ATF agent witnessed 

a suspected straw purchaser resell firearms, but for reasons that remain unclear . . . broke off 

surveillance of the straw and did not take him into custody following the transaction.” Smith 

wrote that the document “appears contrary to statements from ATF last month indicating that 

its agents arrested suspects [sic] straws along the Southwest Border as soon as they had 

concrete evidence indicating the suspect straws were engaged in illegal firearms trafficking.” 

According to Weinstein, on March 4 he heard Hoover describe to Goldberg “2 or 3 incidents in 

which an ATF agent (inexplicably) sent a CI [confidential informant], posing as a straw, in to a 

store to make a purchase and then had the CI hand those guns off to a trafficker,” a 

description that Weinstein reiterated to Goldberg in a March 9 e-mail. (After reviewing a draft 

of this report, Department officials noted that the “2 or 3 incidents” related to one case that 

had also been described in Sen. Grassley’s March 3, 2011 letter.) On March 21, Weinstein 

wrote to Axelrod that there was “some agreement that we should try to add some language to 

our congressional responses that captures, with appropriate disclaimers, the fact that to date 

ATF has discovered only a few (non-F&F) instances where agents intentionally let guns ‘walk.’” 

On March 30 and 31, Axelrod received a series of e-mail messages from Melson about concerns 

Melson had after reviewing the Title III affidavits. Deputy Attorney General Cole told the OIG 

that through his discussions with Melson in March and April 2011 he learned of at least one 

incident (already described above) in which ATF had broken off surveillance on straw 

purchasers because the agents did not have their protective gear and could not leave their 

vehicle to continue the surveillance.
417 

We believe that to Congress and the public, the Department’s May 2 

letter reasonably could be understood as at least a partial reaffirmation of the 

February 4 letter at a time when Department officials knew or should have 

known that the February 4 letter contained inaccurate information. We believe 

that the better practice would have been to continue to refrain from making 

substantive statements about both the February 4 letter and the investigation, 

like the four prior letters to Congress, or to state that there were significant 

concerns about the accuracy of the February 4 letter and that Department 

officials would not respond to further inquiries about Operation Fast and 

Furious until they determined the actual facts. 

Similarly, during his testimony to Congress on June 15, AAG Weich 

appeared at times to be defending portions of the February 4 letter, while at 

other times to be distancing the Department from it. For example, with regard 

to the letter’s statement that ATF did not allow the sale of firearms “to a straw 

purchaser who then transported them into Mexico,” he testified that “[t]hose 

particular statements remain true for the technical reason that the . . . straw 

purchasers don't take guns to Mexico. And in any event, ATF doesn't sanction 

or approve of the transfer of weapons to Mexico.” However, in response to 

another Member’s questions, Weich stated that “we're not clinging to the 

statements in those letters.” 

The OIG recognizes the difficult situation Weich was in during his 

testimony because as AAG for Legislative Affairs, he was not in a position to 

provide informed responses to the substantive questions that were being asked 

about the details of Operation Fast and Furious. However, as to the 

Department’s position about the accuracy of the February 4 and May 2 letters – 

a subject on which Weich could be expected to provide authoritative responses 

– we believe that Weich’s testimony sent a confusing message to Congress and 

the public about whether the Department’s leadership was embracing in full 

the February 4 and May 2 responses as accurate. 

On behalf of the Department, Deputy Attorney General Cole ultimately 

withdrew the February 4 letter on December 2, 2011. The December 2 letter 

correctly stated that the February 4 letter included “inaccuracies” that resulted 

from reliance on information provided by senior officials at ATF and the U.S. 

Attorney’s Office. For the reasons discussed above, we concluded that the 

Department officials who included this inaccurate information in the February 

4 letter share responsibility with these component officials for issuing an 

inaccurate letter to Congress.
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419 

CHAPTER SEVEN

CONCLUSIONS

In this chapter we summarize the OIG’s overall assessment of the 

conduct of Operations Wide Receiver and Fast and Furious and the 

Department’s statements to Congress concerning these investigations. We 

include a description of specific remedial measures that ATF and the 

Department have implemented to address many of the problems that surfaced 

following Operation Fast and Furious, as well as our recommendations for 

additional remedial measures. Finally, we present our findings concerning 

individual performance in connection with the activities described in this 

report. 

I. Conduct of Operation Wide Receiver and Operation Fast and Furious 

In Chapters Three and Four, we described in detail the conduct of 

Operations Wide Receiver and Fast and Furious and the basis for our 

conclusions that the investigations were seriously flawed in several respects, 

most significantly in their failure to adequately consider the risk to public 

safety in the United States and Mexico. We believe that the irresponsible 

handling of these two investigations revealed several systemic problems. We 

summarize below what we found were the key features and failings in the 

investigations, and the reforms ATF and the Department have instituted to 

minimize or prevent these problems from recurring. We also make 

recommendations for additional remedial measures that we believe are 

necessary to address the issues we identified. 

A. Systemic Issues 

1. Lack of Sufficient Controls and Inadequate Attention to 

Public Safety 

Operations Wide Receiver and Fast and Furious sought to identify the 

higher reaches of firearms trafficking networks by deferring any overt 

enforcement action against the individual straw purchasers – such as making 

arrests or seizing firearms – even when there was sufficient evidence to do so. 

Underlying this strategy was the belief that by conducting physical and 

electronic surveillance of the subjects, as well as collecting documentary 

evidence of their activities, the agents would learn how the firearms were being 

purchased and transported to Mexico. Each investigation also had aspirations 

of identifying and prosecuting the cartel leaders in Mexico ultimately 

responsible for the trafficking. 

However, this strategy was implemented by ATF and the U.S. Attorney’s 

Office without adequate regard for the risk it posed to public safety in the 
420 

United States and Mexico. We found that in Operation Fast and Furious, the 

calculation was made early in the investigation that dismantling a firearms 

trafficking organization and disrupting its future trafficking capability better 

served the public safety than seizing some firearms and arresting mere straw 

purchasers. We disagreed with the apparent judgment that these two 

objectives were incompatible, and found that once the strategy was adopted, it 

should have included constant reassessment of the state of the evidence as the 

number of illegally purchased firearms and the corresponding risk to the public 

increased. This did not happen in either investigation. 

In addition to the sheer volume of firearms purchasing activity in the 

investigations, the challenges agents faced in conducting surveillance should 

have called into question the wisdom of a longer-term approach whose success 

was dependent on being able to observe how the firearms were crossing into 

Mexico. Both investigations struggled with surveillance due to limited 

resources. In addition, subjects often used counter surveillance techniques 

and maintaining effective but inconspicuous surveillance in certain areas (like 

residential neighborhoods) was difficult. 

These challenges were known early in each case. ATF’s Phoenix Field 

Division initially ran Operation Fast and Furious with a squad of three agents, 

and even after an influx of additional resources still struggled to conduct 

effective surveillance; in Operation Wide Receiver, the Tucson office used a 

squad of seven agents, yet ATF agents did not attempt to coordinate with 

Immigration and Customs Enforcement (ICE) until the conclusion of the 

firearms part of the investigation. In both investigations, it was not until 

conducting post-arrest interviews of key subjects that agents learned how the 

firearms were getting out of Phoenix in Operation Fast and Furious and out of 

Tucson in Operation Wide Receiver. 

The risk to public safety was immediately evident in both investigations. 

Almost from the outset of each case, ATF agents learned that the purchases 

were financed by violent Mexican drug trafficking organizations and that the 

firearms were destined for Mexico. We believe the limitations and the 

ineffectiveness of the surveillance should have prompted ATF and U.S. 

Attorney’s Office personnel responsible for conducting and supervising the case 

to assess whether they could responsibly conduct investigations as large as 

Operations Wide Receiver and Fast and Furious under these circumstances. 

In both investigations, the ATF offices in Phoenix and Tucson relied on 

the weapons transfer policy in effect at the time, ATF Order 3310.4B, to justify 

the decision to forego interdicting firearms. Indeed, in Operation Fast and 

Furious, an early briefing paper explicitly cited the provision and closely 

tracked its language in describing the case strategy of allowing firearms 

transfers to continue. Several ATF officials told us that Order 3310.4B can be 

read to permit not seizing firearms under certain circumstances, such as where 
421 

the investigation targets cross-border trafficking organizations, but also said 

this was not the intent of the policy and that it has not been ATF’s practice to 

allow firearms to “walk” without considering public safety. We concluded that 

to the extent ATF policy allowed firearms purchases to continue unabated 

without significant supervisory review and approval in Operations Wide 

Receiver and Fast and Furious, the policy was seriously deficient and reflected 

a lack of internal controls. We also concluded that the speculative long term 

gain of foregoing enforcement action should have yielded to the immediate risk 

to public safety, both in the United States and Mexico, created by the subjects’ 

substantial trafficking activities. 

In early spring 2011, in the course of reviewing its responses to Congress 

regarding Operation Fast and Furious, the Department also began to examine 

the lack of sufficient policies and controls regarding gun trafficking 

investigations. As a result, Attorney General Holder changed Department 

policy to require Department law enforcement agencies to interdict firearms in 

the United States where there was lawful authority to do so. In addition, at 

Holder’s direction, on March 9, 2011, Deputy Attorney General (DAG) Cole 

issued a directive to Southwest Border U.S. Attorneys stating that tactics 

allowing firearms to cross the border violated Department policy and would not 

be tolerated, including “controlled deliveries” that were coordinated with 

Mexican law enforcement. 

Implementing this directive, ATF’s Assistant Director for Field Operations 

Mark Chait disseminated written guidance regarding firearms trafficking 

investigations to all ATF special agents on March 17, 2011. The memorandum 

states that ATF and DOJ policy on firearms trafficking prohibits planning or 

conducting undercover operations in which firearms cross the border. The 

memorandum explicitly states that if law enforcement officials have any 

knowledge that guns are about to cross the border, they must take immediate 

action to prevent that from occurring, even if it means jeopardizing an 

investigation. The memorandum also states that field divisions should ensure 

that ATF officials coordinate with the appropriate U.S. Attorney’s Office “to 

ensure a mutual understanding of the criteria for both prosecutions and 

seizures.” 

Additionally, in a memorandum issued November 3, 2011, ATF officially 

clarified its policy regarding firearms transfers during a firearms trafficking 

investigation. The memorandum described ATF policy regarding both 

“uncontrolled firearms transfers,” which occur when the government becomes 

aware of a suspicious firearm transaction but is not actively involved in the 

transfer, and “government controlled firearms transfers,” which occur when the 

government controls the delivery of a firearm to a person believed to be 

unlawfully acquiring or possessing the firearm. 
422 

With respect to uncontrolled transfers, the policy memorandum states 

that when contacted regarding a suspicious person or transaction, the agent 

should advise the Federal Firearms Licensee (FFL) to follow applicable law and 

that they are under no obligation to transfer a firearm to a customer and 

should use their best judgment as to whether to do so. The memorandum also 

stresses that when an agent has a legal basis to make an arrest or seize a 

firearm, the agent must take all reasonable steps to prevent the firearm’s 

criminal misuse, taking into consideration public and officer safety. The 

memorandum identifies the actions available to an agent under these 

circumstances: 1) intervene to stop a transfer they believe is illegal, 2) arrest 

the suspect, 3) take the firearms into custody, or 4) conduct continuous on-site 

physical surveillance to identify additional suspects before taking enforcement 

action – surveillance that may not cease until enforcement action is taken. 

The memorandum contains no exemption from the requirements and states, 

“Perfecting a criminal prosecution must never be more important than 

protecting public safety.”

 

 

 

 

 The memorandum specifies that “any exceptions to 

this policy must be approved in writing and in advance of the operation by the 

Director.”

2. Inappropriate Use of Cooperating FFLs to Advance the 

Investigation 

Agents in Operation Wide Receiver and Operation Fast and Furious used 

the substantial cooperation of FFLs to advance the investigations. In Operation 

Wide Receiver, ATF agents formally opened an FFL as a confidential informant 

and paid the owner of the FFL for his cooperation. As a confidential informant, 

and under the direction and control of Tucson agents, the FFL sold large 

quantities of firearms to the Operation Wide Receiver subjects despite direct 

evidence that the purchases were illegal. Indeed, the ATF agents in Tucson 

had the FFL act like a “dirty FFL” to gain the trust of the subjects in order to 

elicit inculpatory information. We found that the entire investigation was 

premised on the ability of Tucson agents to monitor straw purchases made 

from the FFL, determine where these firearms were going, and identify who was 

providing the money for them. 

In Operation Fast and Furious, agents in Phoenix used the office’s longstanding relationship with and cooperation from FFL1, and to a lesser extent 

FFL2, to advance the goals of the investigation. The owner of FFL1, which was 

responsible for 65 percent (over $985,000) of the sales to Operation Fast and 

Furious subjects, agreed to place a video camera in his store, record his 
423 

telephone calls with Patino and Steward relating to firearms transactions, and 

include in several sales a particular model AK-47 style rifle that was equipped 

with an ATF tracking device. FFL2 voluntarily provided video recordings of 

some purchases, and agreed at ATF’s request to disable a .50 caliber rifle 

purchased by an Operation Fast and Furious subject and to increase its 

inventory of a particular type of firearm to satisfy an order made by Patino (the 

sale never took place). Both FFLs also provided ATF with Form 4473s of 

completed sales of interest to ATF, gave agents advance notice of some 

purchases, and agreed on several occasions to segregate the cash that subjects 

used for purchases to allow ATF to expose the cash to police dogs trained to 

detect the odors of chemicals associated with certain narcotics. 

Similar to Operation Wide Receiver, the agents’ efforts in Operation Fast 

and Furious to observe and document purchases by subjects were central to 

the goal of identifying additional members of the conspiracy and how the 

firearms were being paid for and transported to Mexico. In FFL1 and FFL2, 

ATF had cooperative FFLs that facilitated ATF’s efforts by continuing to make 

sales to subjects. For the reasons we explained in Chapter Four, we found that 

even though these FFLs were not under the direct supervision and control of 

ATF agents as the FFL was in Operation Wide Receiver, the extent and nature 

of ATF’s requests for cooperation from FFL1 and FFL2 created at least the 

appearance that sales to particular Operation Fast and Furious subjects were 

made with ATF’s approval and authorization. 

The arrangement between ATF and the FFLs in Operation Wide Receiver 

and Operation Fast and Furious implicated two significant concerns. First, we 

believe there is a potential conflict between the ATF’s regulatory and criminal 

law enforcement functions with respect to FFLs when the ATF seeks their 

ongoing and extensive assistance in an investigation. Operation Wide Receiver 

put this tension in stark relief. In that case, the high number of crime-related 

traces on firearms the FFL sold during the investigation resulted in increased 

scrutiny of the FFL by ATF’s Industry Operations Division, and the subsequent 

inspection and warning conference to address unrelated recordkeeping 

violations strained ATF’s relationship with the FFL. 

Second, the relationships with the FFLs in these two investigations 

created at least the appearance that ATF agents approved or encouraged sales 

of firearms that they knew were unlawful and that they did not intend to seize. 

In Operation Wide Receiver, agents clearly sanctioned the unlawful sale of 

firearms; in Operation Fast and Furious, we found that agents emphasized to 

the cooperating FFLs the value of their cooperation and sought additional 

cooperation that could be satisfied only by completing sales, at least giving the 

impression to these FFLs that ATF wanted the sales to continue. 

Given that these sales involved illegal straw purchases, we believe ATF 

agents should have been required to obtain high-level review and approval 
424 

before seeking the type of cooperation from the FFLs we described in Chapters 

Three and Four. 

Our concerns with the conduct in Operations Wide Receiver and Fast 

and Furious are not intended to suggest that there are no circumstances under 

which the government could appropriately seek the cooperation of an FFL. 

Indeed, FFLs that voluntarily notify ATF agents about suspicious customers or 

sales provide critical intelligence about potential firearms trafficking. This is 

precisely the type of voluntary activity that is appropriate to encourage. 

However, significant concerns emerge when ATF obtains cooperation from an 

FFL that results in the FFL making sales it believes are potentially illegal 

because the FFL is under the impression that ATF is approving or encouraging 

such sales, particularly in the absence of a written understanding or 

agreement. We believe that ATF must have formal guidance and policies in 

place for situations where cooperation beyond merely providing information is 

offered by or sought from an FFL. 

ATF revised its policies regarding undercover operations and the use of 

confidential informants in November 2011. ATF established an Undercover 

Review Committee to assess sensitive and significant cases involving 

undercover operations and a Confidential Informant Review Committee (CIRC) 

to consider issues involving the use of high level or long term or other sensitive 

category confidential informants. As part of the attempt to address the 

problems inherent in ATF’s interactions with FFLs in Operations Wide Receiver 

and Fast and Furious, ATF’s revised confidential informant policy now 

explicitly precludes, absent extraordinary circumstances, the use of licensees 

as confidential or paid informants if they are in an industry over which ATF 

has jurisdiction. 

The revised confidential informant policy also incorporates the Attorney 

General Guidelines regarding authorization of confidential informants’ 

otherwise illegal activity. In particular, the revised policy requires advance, 

written authorization by the Special Agent in Charge (SAC) and the U.S. 

Attorney for a specified period, not to exceed 90 days, where a confidential 

informant will commit “Tier 1 Otherwise Illegal Activity,” which includes, 

among other things, activity that would constitute a misdemeanor or felony if 

committed by a person acting without authorization and that involves the 

commission, or the significant risk of the commission, of any act of violence by 

a person or persons other than the Confidential Informant. “Tier 2 Otherwise 

Illegal Activity” (i.e., illegal activity that does not fall under the definition of Tier 

1 and would qualify as a misdemeanor or felony) must be authorized in writing 

by the SAC for a specific period, not to exceed 90 days. The SAC who 

authorizes Tier 1 or Tier 2 Otherwise Illegal Activity must make and document 

a finding in the informant’s files that the authorization is necessary either to 

obtain information or evidence essential for the success of an investigation that 

is not reasonably available without such authorization, or to prevent death, 
425 

serious bodily injury, or significant damage to property, and that the benefits to 

be obtained from the informant’s participation in the otherwise illegal activity 

outweigh the risks. Where otherwise illegal activity has been authorized, ATF 

must take all reasonable steps to supervise closely the illegal activities of the 

informant, minimize the effects of the activity on innocent individuals, and 

ensure that the informant does not profit from his participation in the activity. 

3. Lack of Meaningful Oversight by ATF Headquarters 

As discussed in Chapters Three and Five, both Operation Wide Receiver 

and Operation Fast and Furious suffered from a lack of meaningful oversight 

from ATF Headquarters. Although ATF had procedures in place for the 

conduct of sensitive investigations, the criteria for designating a “sensitive 

investigation” were both too narrow and overly vague. See ATF Order 3210.7C, 

Chapter C. For example, ATF policy defined “sensitive investigations” to 

include “incidents that might have diplomatic or international implications” 

and “any incident, investigation, or involvement that is likely to cause contact 

with headquarters by the news media or a major political figure,” without 

further guidance regarding what other situations might qualify as “sensitive.” 

Moreover, the policy did not specify that investigations involving the use of an 

FFL as an informant, coordination with a foreign government, or the use of 

novel investigative tactics would qualify as “sensitive.” Despite this lack of 

guidance, ATF policy placed the responsibility to recognize and report sensitive 

situations on Special Agents, requiring them to report it to the Division 

Director (now referred to as the Special Agent in Charge), who was then 

required to report it to the appropriate Headquarters Division Chief. The policy 

stated that a sensitive investigation, incident, or involvement reported to ATF 

Headquarters “may” require monitoring but did not require subsequent 

monitoring or oversight. 

Although both Operations Wide Receiver and Fast and Furious should 

have qualified as “sensitive” investigations given the “international 

implications” involving Mexico and their non-traditional strategies and tactics, 

neither case received the type of oversight from ATF Headquarters the 

procedures seemed to contemplate. We also did not see any indication that 

Tucson or Phoenix agents ever considered designating either operation as 

“sensitive.” 

Moreover, while Operation Wide Receiver was designated and funded as a 

“major case,” ATF’s major case policy at the time provided no mechanism for 

substantive approval or monitoring of the investigation by Headquarters 

personnel. Nor did agents involved in Operation Wide Receiver seek approval 

for engaging in coordination with Mexico, resulting in a surprising lack of 

Headquarters involvement. Sufficient information was available in Operation 

Fast and Furious to prompt questions by responsible Headquarters officials 

about the investigative tactics used and the corresponding risk to public safety 
426 

– and several officials in OSII and the Southwest Border Interdiction 

Coordinator did in fact raise questions about the investigation based on the 

number of firearms involved – yet ATF leadership repeatedly failed to act in a 

timely fashion on this information. 

ATF began a new Monitored Case Program in July 2011, which was 

“designed to ensure close investigative, operational, and strategic coordination” 

and to enhance communication between field offices and ATF Headquarters 

regarding ATF’s most sensitive cases. According to the memorandum 

describing the program, it was implemented to keep ATF executive leadership 

officials fully informed regarding certain cases. The memorandum establishes 

guidelines for determining whether a case should be designated for the 

program. The criteria for cases included in the monitoring program range from 

specific matters, such as those with a documented international crime nexus, 

investigations regarding complex straw purchasing schemes involving the 

purchase or trafficking of more than 50 weapons, and investigations that 

involve long term and other undercover operations; to general matters, such as 

investigations that an SAC or Headquarters executive deems appropriate to 

designate as a monitored case.319

The memorandum also describes the procedures field divisions are 

required to follow when investigations or inspections evolve into cases 

appropriate for the case monitoring program. Field divisions are required to 

prepare for ATF Headquarters a briefing paper providing an overview of the 

matter, including describing investigative techniques used, the evidence and 

factual corroboration, and verified intelligence. Among other issues, the 

briefing paper also must include the numbers of suspects or defendants and 

any affiliation with criminal organizations, the nature and number of violations 

found, the number of “unaccounted for” firearms, and a description of 

proposed future investigative or inspection plans. 

According to the memorandum, once the briefing paper is sent to ATF 

Headquarters Investigative Support Branch, which coordinates the program, a 

reviewer is assigned to the case and receives the same access to ATF’s N-Force 

database as the case agents. The memorandum also prescribes regular 

monthly briefings regarding cases in the program to field office and division 

management and in turn to the appropriate Deputy Assistant Director (DAD). 

Importantly, the memorandum requires SACs to telephonically notify the DAD 

 

319 ATF issued a revised Monitored Case Program on August 29, 2012. According to 

the issuing memorandum, the program had evolved since July 2011 to focus on more sensitive 

and high-risk investigations and inspections. The memorandum restates those policies and 

procedures from the July 2011 memorandum that remain in effect, describes the changes to 

the criteria used to identify monitored cases, and defines additional requirements for 

documenting monitored cases.
427 

“each time there is a significant activity [described further as ‘significant search 

or arrest warrants, major undercover deal, significant activity or advancement 

in the case, significant changes to strategy’] that is unanticipated or a change 

to the scope of an investigation or inspection in a monitored case.” The DADs 

are then required to provide monthly monitored case briefings to the Acting 

Director (AD), the Deputy Director, and the AD for Field Operations. 

4. Issues Regarding Coordination with Other Law 

Enforcement Agencies 

In Chapter Four, we described how ATF missed an early opportunity to 

advance its investigation up the organizational ladder of the trafficking group it 

had identified when it failed to exploit information provided by the DEA’s 

Phoenix Office in December 2009 from one of its OCDETF investigations. After 

receiving the information from the DEA and failing to follow up on it, ATF 

focused on getting OCDETF approval for its case and obtaining its own 

wiretaps. We found that after eight additional months of investigation and the 

use of substantial government resources, ATF was not substantially closer to 

identifying how the trafficking was being financed or how the firearms were 

being transported to Mexico than it was after receiving the information from the 

DEA. 

As we also described in Chapter Four, unknown to ATF at the time, one 

of the individuals identified in the DEA information provided in December 2009 

was, together with of the straw 

purchasers working for Manuel Celis-Acosta, the leader of the group being 

investigated in Operation Fast and Furious. In March 2010, ATF agents 

learned the full true names of these individuals and that they had been the 

subjects of a joint FBI-DEA drug trafficking case out of that was 

initiated on December 4, 2009. The DEA office that provided ATF this 

information advised that it believed these individuals had received firearms 

from Celis-Acosta. However, it was not until one year later, in March 2011, 

that ATF agents discovered the significance of these individuals’ connection to 

Operation Fast and Furious. The failure to discover this connection earlier is 

troubling and raises questions about how information was shared among 

various offices of ATF, the DEA, and the FBI at this stage and at other points 

during the investigations. We continue to review materials relevant to these 

issues in order to assess whether further investigation is warranted. 

We also saw coordination and information sharing issues between ATF 

and ICE, and noted instances in Chapter Four where ATF resisted ICE 

conducting any independent or coordinated investigations that were related to 

Operation Fast and Furious through recovered firearms. In light of ICE’s 

jurisdiction over export violations involving munitions and firearms, close 

coordination with ICE was essential in an investigation that purported to target 

a cartel in Mexico and had as a goal identifying the crossing mechanism the 
428 

cartel was using to obtain firearms from the United States. We question 

whether adding a single ICE agent (who was a former ATF employee) to the 

Operation Fast and Furious investigation was sufficient to ensure or promote 

this coordination. The Office of the Inspector General for the Department of 

Homeland Security, the parent agency for ICE, is conducting a review of ICE’s 

involvement in and knowledge of Operation and Fast and Furious. 

5. Recommendations 

Although we believe that the policies that ATF has instituted to address 

problems identified in Operation Fast and Furious are significant and helpful, 

we believe that more needs to be done to ensure that ATF exercises adequate 

oversight of its operations and institutes controls that account for public 

safety. Our investigation made clear that the failures within ATF, which 

included a long term strategy in Operation Fast and Furious that was fully 

supported by the U.S. Attorney’s Office, were systemic and not due to the acts 

of only a few individuals. 

Indeed, ATF’s new policies underscore the agency’s delay in completing 

its integration into the Department and in implementing controls to protect the 

public that are used in other Department law enforcement components. For 

example, we find it remarkable that ATF did not until recently utilize review 

committees to evaluate its undercover operations and the use of high-level and 

long-term confidential informants. We also are concerned that ATF and the 

Department have not devoted sufficient attention to ensuring that ATF’s 

policies scrupulously adhere to requirements found in the Attorney General’s 

Guidelines and other Department policies. ATF, for example, did not revise its 

confidential informant policies to conform to the Attorney General’s Guidelines 

Regarding the Use of Confidential Informants until last year – eight years after 

ATF joined the Department. Moreover, the Department has not yet amended 

the Attorney General’s Guidelines to expressly cover ATF. 

In light of Operation Fast and Furious and the results of other OIG 

reviews, we believe that more rigorous oversight of ATF is necessary. The OIG 

looks forward to future reviews of ATF that will improve its effectiveness and 

accountability. Accordingly, the recommendations we provide below should be 

seen as an initial starting point for needed reforms. 

Recommendation 1: The Department should examine ATF’s policies on law 

enforcement operations to ensure that they are in compliance with Department 

guidelines and policies. 

Recommendation 2: The Department should examine ATF’s case review 

procedures to verify that they are consistent with procedures adopted in other 

Department law enforcement components to ensure that matters involving 

“sensitive circumstances,” “special requirements,” and “otherwise illegal 
429 

activity” are sufficiently evaluated. The Department should assess ATF’s 

implementation of these procedures to ensure that they are effective and 

consistently applied. 

Recommendation 3: The Department should work with ATF to develop 

guidance on how to conduct enterprise investigations against gun trafficking 

organizations consistent with lessons learned from Operation Fast and 

Furious. 

Recommendation 4: The Department should review the policies and 

procedures of its other law enforcement components to ensure that they are 

sufficient to address the concerns we have identified in the conduct of 

Operations Wide Receiver and Fast and Furious, particularly regarding 

oversight of sensitive and major cases, the authorization and oversight of 

“otherwise illegal activity,” and the use of informants in situations where the 

law enforcement component also has a regulatory function. 

Recommendation 5: The Department should maintain a regular working 

group involving leadership from its component law enforcement agencies to 

ensure appropriate coordination among them on significant law enforcement 

policies and procedures, case deconfliction mechanisms, and law enforcement 

initiatives. 

We request that the Department update the OIG on its progress in 

implementing these recommendations within 90 days from the date of this 

report, including a timeline for completing its work on the recommendations. 

Upon completion of our ongoing work that we described in Chapter One, 

as well as our review of the report of the Office of Inspector General for the 

Department of Homeland Security on ICE’s role in Operation Fast and Furious, 

we will consider whether further recommendations are necessary. 

6. Department Review of Wiretap Applications 

We reviewed the wiretap affidavits in both Operation Wide Receiver and 

Operation Fast and Furious and concluded that the affidavits in both cases 

included information that would have caused a prosecutor who was focused on 

the question of investigative tactics, particularly one who was already sensitive 

to the issue of “gun walking,” to have questions about ATF’s conduct of the 

investigations. For example, as we discussed in Chapters Five and Six, both 

ATF Acting Director Ken Melson, a former federal prosecutor, and Criminal 

Division prosecutor Laura Gwinn had concerns about “gun walking” when they 

reviewed the affidavits. However, we also learned during our review that none 

of the 5 Deputy Assistant Attorneys General (DAAG) who reviewed the 14 

wiretap applications in connection with Operations Wide Receiver and Fast and 

Furious identified any issues or raised any concerns about the information 

contained in the applications. 
430 

We interviewed three of the five Criminal Division DAAGs who reviewed 

wiretap applications in Operation Fast and Furious and Operation Wide 

Receiver.320

In light of the explicit statutory assignment of responsibility for 

authorizing wiretap applications, we were concerned by the DAAGs’ statements 

to us regarding their practices regarding review of wiretap applications. We 

believe DAAGs should conduct a review of wiretap applications and affidavits 

that is sufficient to enable them to form a personal judgment that the 

application meets the statutory criteria. While we appreciate that the OEO 

cover memoranda serve a useful purpose in the review process and can 

appropriately influence the scope and nature of the DAAG’s review of the 

affidavits themselves, we do not believe they should supplant such review. 

 All three of those DAAGs told us that they focused their attention 

on whether the applications were legally sufficient. They also told us that it 

was their practice to read the agent’s affidavit in support of a wiretap 

application only if they had a concern after reading the OEO attorney’s cover 

memorandum. Indeed, DAAG Weinstein told us he did not review the affidavits 

in Operation Fast and Furious, and Blanco and Mandelker told us they did not 

recall reading the affidavits in support of the applications they reviewed for 

Operations Fast and Furious and Wide Receiver, respectively. 

During Fall 2011, the Criminal Division began making changes in the 

way that U.S. Attorneys’ Offices, OEO supervisors, and DAAGs review wiretap 

applications. Supervisory AUSAs are now formally required to review and 

approve applications before they are sent to OEO. According to DAG Cole, this 

requirement provides a good check to ensure that supervisors in the U.S. 

Attorney’s Office are aware of the operational details in an investigation. In 

addition, OEO supervisors and DAAGs have been directed to increase their 

efforts to contact supervisory AUSAs directly when review of the application 

raises concerns about the operational tactics used in an investigation. Cole 

told us that the policy was not designed to have OEO supervisors and the 

DAAGs review the operational aspects of an investigation, but rather to have 

the OEO Director follow up with the supervisory AUSA if reviewers come across 

red flags in an application package. Criminal Division AAG Breuer described 

the new requirement as providing “an extra level of sensitivity” to red flags that 

the USAO might have missed. 

 

320 We were unable to interview the two other DAAGs who reviewed wiretap 

applications in Operation Fast and Furious and Operation Wide Receiver. As noted previously, 

DAAG Keeney, who reviewed applications in both cases, passed away in 2011. DAAG Sabin, 

who reviewed Operation Wide Receiver applications, requested as a condition of the interview 

that we ask the court to unseal the wiretap applications so that Sabin’s attorney could review 

them and we did not ask the Department to make such a request of the court.
431 

We believe these changes are appropriate and necessary. However, in 

light of our findings, we recommend the following: 

Recommendation 6: The Department should require that high-level officials 

who are responsible for authorizing wiretap applications conduct reviews of the 

applications and affidavits that are sufficient to enable those officials to form a 

personal judgment that the applications meet the statutory criteria. 

B. Individual Performance 

In this section, we assess the performance of each of the Department 

employees who were most involved in Operation Wide Receiver and Operation 

Fast and Furious. We address individual performance issues for events after 

January 25, 2011, in Section II below. 

1. ATF Phoenix Field Division 

ATF’s Phoenix Field Division, together with the U.S. Attorney’s Office, 

bore primary responsibility for the conduct of Operations Wide Receiver and 

Fast and Furious. While we found no evidence that the agents responsible for 

the cases had improper motives or were trying to accomplish anything other 

than dismantling a dangerous firearms trafficking organization, we concluded 

that the conduct and supervision of the investigations was significantly flawed. 

For reasons described in Chapters Three and Four, the Phoenix and Tucson 

offices adopted and adhered to a strategy that deferred taking overt action 

against subjects, even when evidence of the illegality of the purchasing activity 

was overwhelming, and we concluded, did so without adequate consideration of 

how that strategy placed the public at risk and what measures could be taken 

to minimize that risk. Further, as the case progressed, there was no 

discussion about whether the goals of the investigation should yield to what 

should have been an imperative to end the firearms trafficking taking place. 

a. Special Agent Garcia 

Brandon Garcia, the case agent in Operation Wide Receiver, was a firstyear agent at the time the investigation began. He had no experience with 

firearms trafficking investigations and was closely supervised and directed by 

Resident Agent in Charge (RAC) Higman, who made operational decisions 

during the investigation. Indeed, Garcia told us that Higman had him “on a 

tight leash for quite a while.” While Garcia admitted that he made several 

errors stemming from his inexperience at the time, such as failing to exercise 

sufficient control over the FFL who was serving as a confidential informant, we 

found that Garcia opposed the decision in September 2007 by Higman and the 

assigned prosecutor, Thomas Ferraro, to extend and expand electronic 

surveillance and try to “roll the investigation into people [who] are primarily 

dopers” rather than to end the investigation and make arrests. We determined 

that Garcia was poorly supervised by Higman, who himself lacked the 
432 

judgment and operational experience to lead an investigation like Operation 

Wide Receiver, and that Garcia did not have adequate guidance in conducting 

the investigation. 

b. Former Resident Agent in Charge Higman 

Charles “Chuck” Higman, a RAC in ATF’s Tucson Office, directly 

supervised Operation Wide Receiver. Higman was closely involved in the dayto-day conduct of the case and made the operational decisions in the 

investigation, including determining when to end surveillance. Indeed, agents 

told us that nothing happened in Operation Wide Receiver without Higman’s 

approval. Higman thus was directly responsible for the investigative tactics 

used in Operation Wide Receiver, including the failure to interdict firearms. As 

described in Chapter Three, one agent told us that Higman “supervised and 

directed” agents in implementing the weapons transfer policy in ATF Order 

3310.4B, permitting agents to decline to interdict firearms in furtherance of a 

broader investigation. Contemporaneous documents show that Higman knew 

that agents could have made arrests earlier in the investigation and instead 

made the decision to forego immediate arrests and interdictions to develop 

evidence of the firearms trafficking network.321

Based upon our interviews and review of relevant documents, we 

determined that Higman lacked the operational experience to conduct a 

complex firearms trafficking investigation and failed to adequately consider the 

public safety risks of the tactics used. We also concluded that Higman failed to 

provide responsible supervision of the investigation. 

c. Special Agent MacAllister 

MacAllister initiated the investigation that would become Operation Fast 

and Furious on approximately October 31, 2009. Through her efforts and 

those of two inexperienced agents, ATF identified a group of individuals that by 

December 2 was responsible for purchasing 341 firearms from Phoenix-area 

FFLs for about $190,000 in cash. The subjects and purchases bore all the 

indicators of straw purchasing and firearms trafficking. By the middle of 

December 2009, MacAllister also knew that the main target of her investigation 

was linked to subjects in an OCDETF drug trafficking case being run by the 

DEA and was provided specific information from the DEA about that link and 

even the opportunity – which she did not take – to attempt to observe a 

firearms transfer between her main subject and the individual financing the 

purchase. By the end of December, the Operation Fast and Furious subjects 

 

321 As we noted in Chapter Three, Higman retired from ATF in February 2009, and he 

did not respond to our repeated attempts to contact him.
433 

had purchased a total of 650 firearms for over $350,000, and the recoveries in 

the United States and Mexico continued. 

Instead of taking action against the subjects by leveraging the early 

evidence ATF had amassed, MacAllister, with the full support of her 

management and the U.S. Attorney’s Office, adopted a longer-term strategy 

that was predicated in part on the belief that approaching the subjects was 

unlikely to develop the evidence required to dismantle the entire trafficking 

network. MacAllister said that in her experience, subjects such as those 

identified in Operation Fast and Furious were unlikely to admit they were doing 

anything illegal and unlikely to cooperate with law enforcement, and that 

therefore approaching the subjects would have only accomplished alerting 

them to ATF’s awareness of their activities. MacAllister also believed, based on 

her own view and previous work with AUSA Hurley, that she needed an 

admission from the subjects in order to seize any firearms or make an arrest. 

MacAllister’s tactical judgment and belief about the need for admissions 

dovetailed to create a situation where she did not believe it would be effective to 

approach the subjects – the only action she thought might elicit the probable 

cause needed to make seizures or arrests. The consequence of MacAllister’s 

view was starkly illustrated when she told us she did not think the evidence 

was sufficient in April 2010 to seize the three .50 caliber rifles Patino bought 

during a single visit to an FFL for approximately $27,000 cash, despite his 

prior purchasing activity and the fact that a narcotics dog alerted on the 

$18,000 down payment and Patino was observed transferring at least one of 

the rifles to a third party. 

We recognize that Phoenix management was fully supportive of 

MacAllister’s efforts in Operation Fast and Furious and that it was reasonable 

for MacAllister to rely on Hurley’s legal advice. We nevertheless were troubled 

by the lack of urgency in MacAllister’s tactical approach in the circumstances 

of Operation Fast and Furious, and by her understanding of the evidence 

required for enforcement action in the case. Even if MacAllister had limited 

success in the past building firearms cases by confronting subjects, we believe 

the volume of the purchasing activity she was observing and documenting in 

Operation Fast and Furious on almost a daily basis should have caused her to 

reconsider any concern that overt action might compromise the case sooner 

than she desired. To the extent MacAllister had questions or doubts about her 

legal authority in light of the growing body of evidence, MacAllister should have 

consulted with the Assistant U.S. Attorney. If the AUSA refused to proceed in 

light of the evidence, it would then have been incumbent on MacAllister to raise 

the issue with her supervisors. We do not believe that allowing the purchasing 

activity to continue unabated was a responsible option. 

In sum, we concluded that MacAllister’s early decisions in the case and 

her failure to reassess the investigative approach as the case progressed 
434 

reflected a lack of urgency that was incompatible with the risk to public safety 

the Operation Fast and Furious subjects were creating. 

d. Former Group Supervisor Voth 

Voth arrived at the Phoenix Field Division as the permanent supervisor 

for Group VII on December 6, 2010, and was responsible for providing the firstlevel management and oversight on Operation Fast and Furious. Given the 

volume of firearms trafficking occurring in the investigation and the challenges 

agents and prosecutors described regarding straw purchaser cases in Arizona, 

Operation Fast and Furious needed strong and responsible supervision. While 

we recognize that Voth was a first-time Group Supervisor in a new office, we 

concluded that he failed to provide responsible supervision of the investigation. 

In January 2010, within weeks of arriving in Phoenix, Voth drafted a 

briefing paper on the case that affirmed the approach that had been 

undertaken to that point with the support of management. That briefing paper 

described an investigation in which 650 firearms had already been purchased 

for over $350,000, and that had as its goal obtaining a wiretap to develop 

evidence to dismantle the trafficking organization, despite the significant 

resource limitations of which Voth and his management were aware. The 

strategy explicitly deferred taking action against straw purchasers and 

anticipated that the firearms trafficking already observed would continue for an 

indeterminate period of time. Whatever merit Voth believed there was in this 

approach, we believe that under the circumstances in Operation Fast and 

Furious, he had a responsibility as the Group Supervisor to have regularly 

reassessed the approach and considered whether measures could be taken to 

disrupt or stop the subjects’ firearms trafficking. Voth failed to do this. 

Voth told us that the strategy set forth in the January 2010 briefing 

paper was adopted because it was only through a wiretap that ATF could 

obtain the evidence required by the U.S. Attorney’s Office to prosecute the case. 

Voth also told us that he believed there was sufficient probable cause early in 

the case to seize firearms and make arrests, but that this was not done 

because AUSA Hurley told agents there was not enough evidence to take these 

actions until late in the investigation. Voth said this was a source of 

frustration for him during the case. 

For reasons we described in Chapter Four, we were not persuaded by 

Voth’s assertions. We concluded that the investigative goal and approach in 

Operation Fast and Furious, which Voth reaffirmed on multiple occasions 

during the course of the case, drove the lack of overt action against the straw 

purchasers, including making seizures and arrests. We did not find persuasive 

evidence to support Voth’s claim that this approach and ATF’s continued 

adherence to it in the face of alarming purchasing activity was solely grounded 

in disputes with Hurley’s legal guidance during the case. In fact, if Voth truly 
435 

felt the frustration during the case that he asserted to us with respect to 

seizures and arrests, his deficiencies as a supervisor were even more significant 

because we did not find persuasive evidence that his managers at ATF or those 

responsible for the case at the U.S. Attorney’s Office were made aware of these 

misgivings. Instead, Voth’s communications to these individuals reflected his 

full support for the case and his belief that “we are righteous in our plan to 

dismantle this entire organization and to rush in to arrest any one person 

without taking into account the entire scope of the conspiracy would be ill 

advised to the overall good of the mission.” 

e. Former Assistant Special Agent in Charge Gillett 

Gillett was the ASAC responsible for overseeing Operation Fast and 

Furious from approximately October 31, 2009, when MacAllister opened the 

case, through mid-April 2010. During the period of Gillett’s oversight, 

Operation Fast and Furious subjects purchased approximately 1,300 firearms 

for over $1,000,000, yet agents made no arrests and just a single seizure. 

Instead, ATF Phoenix adhered to a strategy that deferred overt action against 

the straw purchasers because doing so might compromise a larger case against 

the trafficking organization. We were critical of Gillett’s oversight as ASAC 

because in ATF’s pursuit of this goal, we believe he either lost sight of the 

immediate public safety risk being created by the straw purchaser’s unabated 

firearms trafficking, or truly believed that the uncertain success of a long-term, 

resource intensive strategy outweighed the imperative of ensuring public 

safety. In either case, we found Gillett’s supervision and judgment in 

Operation Fast and Furious seriously deficient. 

Gillett approved of MacAllister’s decision in November 2009 to not 

interview the subjects whose 19 guns were recovered in Mexico within 2 weeks 

of being purchased. In an e-mail explaining that decision, MacAllister told 

Gillett she wanted to identify “larger players in the organization” and believed 

that confronting the subjects too early would “adversely affect the success of 

the investigation.” In response, Gillett told MacAllister, “that is fine and totally 

your call.” Gillett reaffirmed his support for this approach when in midDecember he contacted an official who, after receiving a briefing about 

Operation Fast and Furious, mentioned the possibility of needing to shut the 

case down due to the large number guns being trafficked. Gillett contacted the 

official, and according to Gillett’s e-mail summarizing the call, told him – 

misleadingly, we believe – “that we will slow purchasers down as much as 

possible, but we have not identified the network yet. The result [of arresting 

purchasers now] will be that the responsible conspirators will have new strawpurchasers operational before we complete the booking paperwork.” This 

approach in the case – one that deferred action against the straw purchasers 

while a case against the organization was built despite 650 firearms having 

already been purchased for over $350,000 – found expression in ATF’s January 

8, 2010, briefing paper that Voth drafted and Gillett revised. That briefing 
436 

paper stated the strategy was “to allow the transfer of firearms to continue to 

take place in order to further the investigation[.]” 

According to Gillett, Operation Fast and Furious was a different type of 

investigation, where instead of investigating firearms violations from the straw 

purchaser angle, ATF would innovatively use wiretaps to develop evidence to 

support the prosecution of an entire trafficking network. Gillett described this 

as the “common sense” answer to ATF’s past frustrations with the U.S. 

Attorney’s Office’s strict evidentiary requirements in firearms cases, and ATF 

and Department policy memoranda that emphasized developing complex cases 

that pursued organizations and not just straw purchasers. However, we 

concluded that these explanations did not excuse adhering to a strategy that 

deferred overt action even as the evidence of firearms trafficking rapidly 

mounted and the risk to public safety continued. 

As discussed in Chapter Four, Gillett told us ATF was frustrated with 

what it believed was the U.S. Attorney’s Office’s position that agents had to 

obtain the firearms recovered in Mexico in order to prosecute the original 

purchasers. However, firearms purchased by several Operation Fast and 

Furious subjects were recovered in the United States as well as Mexico, yet ATF 

did not seek to arrest and prosecute any of these straw purchasers even when 

ATF had the recovered firearms in its possession. We also understood that ATF 

was frustrated by the U.S. Attorney’s Office’s unwillingness to prosecute 

individuals when the only evidence of straw purchasing was a mere transfer of 

the firearms between non-prohibited parties. However, this situation was far 

different than the compelling evidence that agents established in the early 

weeks and months of Operation Fast and Furious, evidence that we believe 

should have been acted on earlier through seizures and possibly arrests. 

Moreover, if Gillett had concerns with the position of the U.S. Attorney’s Office 

he should have raised them with the leadership of that office. Gillett told us, 

however, that he was not frustrated with Hurley during Operation Fast and 

Furious, with the exception of the time it took to get the wiretap applications 

approved, and that he was pleased that the U.S. Attorney’s Office was willing to 

work with ATF on a complex investigation. 

We also found that it was not reasonable for Gillett to interpret ATF and 

Department policy memoranda as supportive of a strategy that deferred overt 

action against subjects as they continued to traffic hundreds of firearms with 

impunity. Gillett highlighted in particular the statement in the Department’s 

January 7, 2010, “Strategy for Combating the Mexican Cartels” memorandum 

that, “merely seizing firearms through interdiction will not stop firearms 

trafficking to Mexico. We must identify, investigate, and eliminate the sources 

of illegally trafficked firearms and the networks that transport them.” This is 

one sentence of a 9-page document that “set[] forth policy considerations that 

will guide the Department” in disrupting and dismantling Mexican drug cartels. 

Former Deputy Attorney General David Ogden, the Department official 
437 

responsible for the “Cartel Strategy” memorandum, told us that it was not 

intended to address or modify particular tactics that ATF used in conducting 

gun trafficking investigations. He said language about seizing firearms was a 

broad policy statement and not a comment on the merits or wisdom of tactics 

pursued in any particular case and that he would not have favored any 

investigation that resulted in firearms crossing the Mexican Border. We believe 

that this is the proper view of the Cartel Strategy and that decisions about 

what tactics to employ to effectuate the strategy rest with field offices that 

conduct the investigations. In Operation Fast and Furious, the Phoenix Field 

Division failed to do this responsibly. 

In short, we concluded that Gillett endorsed a strategy in Operation Fast 

and Furious that lacked adequate measures to minimize the risk to public 

safety in the United States and Mexico created by the subjects’ trafficking and 

that did not include any plan to reassess the decision to allow transfers of 

firearms to continue. In doing so, Gillett failed to provide responsible 

supervision of Operation Fast and Furious. 

f. Former Special Agent in Charge Newell 

Special Agent in Charge (SAC) William Newell became SAC of the Phoenix 

Field Division in June 2006. As discussed in Chapter Three, Newell told us 

that he understood the goal of Operation Wide Receiver was to take down a 

firearms trafficking organization, and that he agreed with the Tucson agents’ 

strategy of targeting the command, control, and financing of the organization. 

Newell reviewed and signed funding requests for Operation Wide Receiver 

indicating that the subjects had purchased numerous firearms and had told 

the FFL in monitored conversations that the firearms were for buyers in 

Mexico, and that agents had forged a “cooperative agreement” with Mexican law 

enforcement to continue surveillance of the firearms into Mexico. 

We found that these memoranda put Newell on notice of facts indicating 

that Tucson agents had the legal authority to interdict and seize firearms in 

Operation Wide Receiver but did not do so. While Newell told the OIG that the 

Tucson U.S. Attorney’s Office told Tucson ATF agents that there was not 

probable cause to interdict and seize firearms or to make arrests in Operation 

Wide Receiver, we found no evidence to support Newell’s claim. Additionally, 

although Newell told us that he disagreed with the use of the FFL as a paid 

confidential informant in Operation Wide Receiver, we concluded that he made 

no effort to end the relationship or to instruct the FFL to refrain from making 

additional sales to straw purchasers. We concluded that Newell, as SAC, was 

ultimately responsible for the failures in Operation Wide Receiver. 

SAC Newell also bore ultimate responsibility for the failures in Operation 

Fast and Furious, particularly in light of his close involvement with the office’s 
438 

highest profile and most resource-intensive case. Like Gillett, Newell supported 

the strategy adopted in the case, and was also acutely aware that its most 

challenging aspect was the large volume of firearms being trafficked. Further, 

like Gillett, Newell did not consider any measures to minimize the risk to the 

public created by the Operation Fast and Furious subjects or prompt 

reassessment of the strategy despite the compelling evidence the investigation 

accumulated. 

Newell acknowledged to us that reassessments should have occurred and 

that he should have asked more questions during the case. We of course 

agree, but do not believe this judgment requires the benefit of hindsight. 

Newell was sufficiently familiar with the case from the outset – and remained 

knowledgeable as the case progressed through briefing papers, the exit 

strategy, and regular communications from Gillett and Voth – to put him on 

notice that the investigation required close oversight and constant 

reevaluation. We concluded this did not occur because Newell viewed 

Operation Fast and Furious as a high profile investigation that could illustrate 

the connection between firearms and drug trafficking, and that was following a 

strategy he fully supported. We believe the multiple flaws in the case described 

in Chapter Four were readily apparent as the case was being conducted. 

Newell simply failed to take measures to address them. 

We also were not persuaded by Newell’s contention that the case strategy 

was driven by AUSA Hurley’s restrictive view of the evidence required to 

prosecute firearms cases. This is not because we found Hurley’s legal views 

reasonable. To the contrary, Hurley’s legal view of the sufficiency of the 

evidence at various points during Operation Fast and Furious to seize firearms 

or make arrests struck us as unduly conservative, and we believe that agents 

had a legal basis to take enforcement action against subjects at points that are 

probably earlier than Hurley would identify. However, we were not persuaded 

by Newell’s contention that the case strategy was driven by Hurley because we 

do not believe, at least as to Operation Fast and Furious, that Newell and his 

office were drawn reluctantly into a longer-term investigation just to satisfy 

Hurley. 

We concluded that from the earliest weeks of the case, and throughout 

the investigation, ATF was committed to and comfortable with a strategy that 

deferred overt action for an indeterminate period. If Newell believed that 

Hurley’s legal advice was an obstacle to a more appropriate investigative 

approach that included firearms seizures and possibly arrests, Newell’s 

responsibility as the SAC was to raise the issue with a senior official at the U.S. 

Attorney’s Office or ATF Headquarters. Newell, however, never contended in 

any of the briefing papers he sent to Headquarters or in his dealings with the 

U.S. Attorney’s Office that Hurley’s interpretation of probable cause had 

relegated his agents to observer status as they conducted surveillance of 

purchases. While Hurley’s view of what evidence was needed for a 
439 

prosecutable case may have been consistent with this approach, we do not 

believe it was the sole explanation for ATF’s approach to the investigation. 

Newell fully supported the strategy in Operations Fast and Furious. In 

fact, when ATF Headquarters personnel raised concerns, as started to occur in 

December 2009 when Rowley began asking questions about the large number 

of firearms being trafficked in the investigation, Newell’s response was 

immediate and defensive.322

We also found instances where Newell furnished incomplete information, 

and at times made statements that conveyed a misleading impression to ATF 

Headquarters on matters related to Operation Fast and Furious. Newell sent 

two e-mails to McMahon in January 2010 that mischaracterized agents’ efforts 

to disrupt the straw purchases. On January 5 he wrote that his agents were 

“doing everything possible to slow [the straw buyers] down.” On January 14, 

Newell described to McMahon a recent seizure in El Paso involving Fast and 

Furious firearms and stated, “[h]opefully the big bosses realize we are doing 

everything possible to prevent guns going into Mexico while at the same time 

trying to put together a phenomenal case.” As we described in Chapter Four, 

ATF’s agents in Phoenix told us they were not slowing the subjects’ purchasing 

activity in January and beyond for fear of jeopardizing the anticipated wiretap 

and due to Hurley’s legal advice. Newell’s e-mails conveyed a misleading 

impression that agents were slowing purchases and interdicting firearms when 

in fact they were not. 

 He e-mailed Martin and described Rowley as “one 

of the ‘hand wringers’ on this deal [who was] asking why we weren’t shutting 

this deal down now.” Newell informed Martin that he had Gillett “counsel” 

Rowley as to why the Phoenix Field Division was not going to close down the 

investigation and that Rowley should not worry about issues that he had no 

control over or “say in for that matter.” 

Newell also told us that he “pushed for” the March 5, 2010, briefing 

because he wanted ATF Headquarters to be fully informed about Operation 

Fast and Furious and to understand that “[t]his is our plan. So that if anybody 

had an issue with it, speak now or forever hold your peace.” ATF’s 

presentation, however, omitted key details about “the plan” that would have 

alerted ATF executives to problems. Although Voth presented the briefing, 

Newell did not highlight for the briefing attendees that the case strategy the 

ATF Field Office adopted in early January involved allowing the transfer of 

firearms to continue, that the straw purchasers had acquired nearly 300 

firearms since early January, that ATF had no immediate plans to change that 

 

322 As Newell once stated to McMahon, “I don’t like [Headquarters] driving our 

cases. . . .” He also informed a staff member in April 2010 that he did not think he could keep 

ATF Headquarters “at bay” longer than another 60-90 days.
440 

strategy (ATF’s next seizure was not until June), that ATF had advance notice 

of many purchases, and that ATF initiated only one of the 17 seizures and 

recoveries described at the briefing. 

After Agent Terry’s murder on December 14, Newell again provided 

McMahon information about the case that we found conveyed a misleading 

impression about the activities of Group VII. Newell told McMahon that he did 

not like “the perception that we allowed guns to ‘walk,’” and that he had Voth 

collect the data on firearms recoveries in Mexico and those “we had a direct 

role in taking off here in the US.” Newell told McMahon that “[a]lmost all of the 

350 seized in the US were done based on our info and in such a way to not 

burn the wire or compromise the bigger case.” As we reported in Chapter Four, 

we concluded that seizures initiated by Group VII agents totaled only 105 

firearms. 

We believe that Newell’s statements in these e-mails and the incomplete 

information at the March 5 briefing conveyed the misleading impression that 

agents were aggressively dealing with the firearms traffickers and that he had 

the case under control. 

After reviewing a draft of this report, Newell submitted comments 

disputing our conclusion that the information he provided was at times 

misleading. He stated that the e-mails he sent in January 2010 were accurate 

as he understood the case, and that he believed the FFLs were delaying sales 

and that agents were doing everything possible to prevent firearms from going 

to Mexico. He also did not concur that the March 5 briefing was lacking in 

information. With respect to the January 2011 e-mail to McMahon, Newell 

stated that the information he conveyed was provided to him by Voth and that 

Newell believed it was accurate. 

We are not persuaded by Newell’s arguments because the information he 

communicated was inaccurate and consistent with what we believe was a 

tendency for him to overstate or omit important information about the 

investigation. In fact, his agents in January 2010 were not “doing everything” 

to slow firearms purchases or transfers to Mexico – they were not confronting 

subjects, seizing firearms, or making arrests. Newell knew this was not 

happening for the sake of the case against the trafficking organization. Newell 

also misunderstood our point about the March 5 briefing. We do not dispute 

that Newell provided substantial information about the investigation to 

McMahon, and that the March 5 briefing included the presentation of many 

facts about the investigation. Our point is that Newell did not fully disclose the 

most troublesome aspects of the case to the assembled executive staff. 

Overall, we found that SAC Newell’s conduct with respect to Operations 

Wide Receiver and Fast and Furious was irresponsible, and that he failed to 

provide the leadership and judgment required of a Special Agent in Charge. 
441 

2. United States Attorney’s Office for the District of 

Arizona 

We concluded that the U.S. Attorney’s Office for the District of Arizona 

shared equal responsibility for the conduct of Operations Wide Receiver and 

Fast and Furious. As noted earlier with respect to the agents involved with the 

cases, we found no evidence that the prosecutors had improper motives or were 

trying to accomplish anything other than dismantling a dangerous firearms 

trafficking organization. However, as summarized below, we concluded that 

the conduct and supervision of the investigations was significantly flawed. 

a. Tucson Office 

We found that the participation of the U.S. Attorney’s Office in Operation 

Wide Receiver was fragmented and ineffective. Attorneys and supervisors in 

the Tucson U.S Attorney’s Office did not afford Operation Wide Receiver the 

attention that a proactive, complex firearms trafficking investigation warranted, 

and therefore missed opportunities to minimize the threat to public safety 

posed by the investigation. As discussed in Chapter Three, Jennifer 

Maldonado, the AUSA assigned to Operation Wide Receiver during the 

investigative phase of the case, lacked experience handling proactive cases, had 

a narrow view of her responsibilities as the assigned prosecutor, and had little 

involvement in or knowledge of the day-to-day activities in the investigation. 

The other AUSAs brought in to assist Maldonado with electronic 

surveillance – first David Petermann, then Tom Ferraro – had more experience 

but did not attempt to change ATF’s investigative strategy or tactics. Ferraro 

later told his supervisor he was “unhappy” with the case because firearms had 

gone to Mexico without having been interdicted by Mexican law enforcement 

officials, contrary to what Ferraro told the OIG he had believed was happening 

in the case. However, Ferraro did not ask questions during the investigation 

about the nature and scope of ATF’s cooperation with Mexico, nor did he 

ensure that Tucson agents interdicted firearms in the absence of such 

cooperation. Only 15 of the 57 firearms sold while Ferraro was assigned to the 

case were interdicted. Serra Tsethlikai, the fourth AUSA assigned to the case, 

made little progress on it, and the case languished until a Criminal Division 

prosecutor was assigned in September 2009. 

We also found that supervisors in the Tucson U.S. Attorney’s Office did 

not adequately supervise Operation Wide Receiver. We believe that the case 

should have garnered closer scrutiny from supervisors, greater attention to the 

risk to public safety posed by the investigation, and a stronger effort to bring 

the case to indictment in a timely manner. 
442 

b. Assistant U.S. Attorney Hurley 

As the lead and only prosecutor assigned to Operation Fast and Furious, 

Hurley shared first-line responsibility with the case agent for ensuring that the 

case was conducted responsibly. We believe that in light of the nature and 

scope of the subjects’ firearms trafficking, the investigation required constant 

reevaluation as the evidence accumulated to determine whether overt action 

should be taken against any of the subjects, both because the evidence 

supported it and the public safety demanded it. As we discussed in Chapter 

Four, Hurley failed to do this. 

According to an e-mail Hurley sent to U.S. Attorney Burke in November 

2009 about a significant seizure of Operation Fast and Furious-related 

firearms, Hurley believed it would take time to time to build the investigation 

into an indictable case and that “[w]e will not be able to see the purchasers 

arrested immediately.” Similar to MacAllister, Hurley felt “the greatest risk to 

the larger [Operation Fast and Furious] investigation will be tipping our hand 

to the suspects too soon.” Hurley agreed with the ATF that the traditional 

approach of confronting straw purchasers and hoping they would admit illegal 

activity was unlikely to be effective, and that even if an admission were 

obtained for a prosecution, that individual would be easily replaced and the 

members of the conspiracy would be put on notice that law enforcement was 

aware of their activities. Hurley supported the approach “to pursue a longer 

term investigation to target the leader of the conspiracy” knowing that by 

January 2010 subjects were responsible for the purchase of 600 firearms, that 

there were firearms recoveries in Mexico and the United States, and that the 

“hub” of the conspiracy (Celis-Acosta) was directly linked to a DEA drug 

trafficking investigation. 

Our primary criticism of Hurley is that he did not adequately evaluate 

the risk to the public safety at the outset of the investigation and, like others 

responsible for the case, did not reevaluate the longer term investigative 

approach as hundreds more firearms were trafficked. He failed to consider 

whether steps should be taken to deter the activity even if they might bring the 

case to a quicker resolution, such as confronting particular straw purchasers 

with the evidence against them or obtaining search warrants at locations 

agents had already identified as stash houses. We believe the evidence was 

sufficient well before the first wiretap in March 2010 was obtained to take 

these steps or consider charges against the top straw purchasers. Even if 

Hurley was not confident that such a case would be successful, we believe the 

circumstances were such that these reservations should have been secondary 

to the imperative of finding ways to disrupt the large scale trafficking being 

observed (such as through seizures) other than simply waiting to see what kind 

of evidence the wiretaps produced. We found the lack of urgency in this regard 

troubling. 
443 

Hurley told us that he deferred to agents on the tactical decision of 

whether to approach subjects, but also said that his impression was that an 

earlier arrest of Patino, for example, would have been tantamount to ending the 

case. Hurley said no one suggested any change in the case in response to the 

trafficking being observed. Hurley also said that he was not asked to make 

arrests, nor did he receive complaints about not being able to seize firearms. 

We found no persuasive evidence to contradict this. 

However, we do not believe that Hurley can rely on the failure of others to 

raise these suggestions or issues to excuse his own failure to consider the 

same. Through the applications to conduct electronic surveillance and to 

insert tracking devices in AK-47 style rifles, Hurley possessed detailed 

knowledge of the available evidence and the magnitude of the trafficking. We 

do not believe Hurley’s responsibility for the conduct of the case in light of this 

information was limited to filing pleadings with the court and dispensing legal 

advice when requested. We concluded that Hurley’s knowledge of the facts of 

the investigation and the clear public safety risk being created by subjects in 

Operation Fast and Furious should have prompted him to affirmatively raise 

the issue to ATF and to his supervisors. 

We found that the lack of urgency in concluding the investigation also 

was manifest in the time it took to indict the subjects. As described in Chapter 

Four, when ATF and the U.S. Attorney’s Office decided by August 2010 that the 

investigation should be brought to a close, the potential public harm from the 

subjects did not end. They could still buy and traffic firearms or engage in 

other unlawful activities, such as the drug dealing ATF knew some subjects 

were involved in. Thus, it was incumbent on ATF and the U.S. Attorney’s Office 

to make arrests or to bring the indictment as quickly as possible. Under these 

circumstances, we believe that Hurley and his management should have 

recognized the need to add additional resources to this phase of the case to 

ensure that it was prioritized. They did not, and we believe failing to do so was 

a contributing factor to the multiple delays in obtaining the indictment. 

c. Section Chief Morrissey 

Section Chief Morrissey was Hurley’s immediate supervisor and, like 

Hurley, supported the approach in Operation Fast and Furious to pursue a 

longer term investigation that targeted the leader of the firearms trafficking 

conspiracy. Morrissey recommended to Burke in an e-mail in January 2010 

that, “[w]e should hold out for the bigger case, try to get a wire, and if it fails, 

we can always do the straw purchasers.” As we noted earlier and recounted in 

Chapter Four, the significant scope of the trafficking activity in terms of the 

number of straw purchasers and the volume of purchases was already known 

by that time, as was the leader’s direct link to a DEA drug trafficking 

investigation. The decision to pursue a wiretap meant that the subjects would 

continue purchasing and trafficking firearms as the government gathered what 
444 

it hoped was sufficient evidence to dismantle the straw purchasing ring, and 

would be free to engage in other unlawful activity if they wished to do so. 

Under these circumstances, we believe it was incumbent on Morrissey to 

exercise close supervision over this proactive investigation in order to stay 

informed about the progress of the case so he could assess whether there 

should be any alterations to the strategy. We concluded that Morrissey failed 

to provide responsible supervision of Operation Fast and Furious. We 

recognize that as the office’s Senior Advisor and Trial Attorney for Firearms, 

Hurley’s assessment in his January 2010 memorandum that there were “no 

chargeable offenses against any of the players” and that he supported pursuing 

“a longer term investigation to target the leader of the conspiracy” was entitled 

to some deference. However, Morrissey also knew from Hurley’s memorandum 

that hundreds of firearms had already been trafficked in the case and that a 

plan to seek a wiretap indicated that trafficking was expected to continue. 

Morrissey also reviewed a draft of at least the first wiretap application, which 

would have informed him that the leader of the conspiracy was responsible for 

using straw purchasers to buy 852 firearms for approximately $500,000, and 

that nearly 100 were recovered in Mexico with short time-to-crime figures. The 

application also would have informed Morrissey that four straw purchasers 

(Steward, Patino, Chambers, and Moore) were already responsible for 601 of 

the total firearms purchased for over $370,000, and that several of these 

purchases were made during ATF surveillance. Morrissey also stated in an email to the U.S. Attorney that using a wiretap in a firearms trafficking 

investigation was “unusual, and aggressive,” and characterized Hurley as a 

“trailblazer.” 

We found no evidence indicating that this information caused Morrissey 

or anyone else in the U.S. Attorney’s Office to question Hurley about whether 

ATF agents were seizing firearms when they had the opportunity to do so. 

Morrissey told us that he assumed agents were doing this, and had been 

informed through Hurley’s January 2010 memorandum that there had been 

seizures in the case, and was also told by Hurley in February 2010 about the 

seizure on the Tohono O’odham Indian Reservation. However, given the 

volume of purchasing related in the wiretap application, the briefings he had 

received, and the expectation that the wiretaps would provide additional 

evidence to support seizures, we believe Morrissey should have asked for 

regular updates on purchases and seizures in the case. Had he asked, 

Morrissey would have learned that there were no Group VII-initiated seizures in 

March, April, or May despite the evidence warranting them, and this might 

have prompted at least a conversation with Hurley about the state of the 

evidence in the case and the tactical judgments being made by agents during 

surveillances. 

Indeed, Morrissey told us that if he could do things over, he would have 

recommended confronting some of the subjects, even if not to arrest, because 
445 

that tactic can help build a case. Morrissey also told us that there came a time 

in the case that some individuals, like Patino, should have been specifically 

deterred. We agree, but also believe that these judgments do not require the 

benefit of hindsight – they are judgments that could have, and should have, 

been made during the investigation. 

Morrissey said that by late summer of 2010 he had discussions with 

Hurley and U.S. Attorney Burke about bringing the case to a close because the 

wiretaps did not appear to be helping identify how weapons were getting to 

Mexico. Morrissey told us, “even in a large and sophisticated investigation 

which this was, you have to acknowledge when investigative goals are not being 

met.” This is precisely the kind of reassessment we believe should have been 

done, but was not, earlier and regularly in the case because of the sheer 

volume of the firearms being trafficked. The fact that Morrissey told us he was 

not aware of the purchase figures for Patino as the case was being conducted 

indicated to us that Morrissey did not exercise the kind of supervision that 

likely would have prompted questions about tactics that he recognized when 

looking back on the case. 

We also found that as Hurley’s supervisor, Morrissey should have been 

more cognizant of the need to staff the investigation with additional resources, 

even if Hurley did not seek or want assistance, especially after ATF and the 

U.S. Attorney’s Office decided to transition the case toward indictment. The 

case spanned 8 months and 9 wiretaps, involved dozens of potential 

defendants and approximately 2,000 firearms, and required the review of 

thousands of pages of investigative reports. It was not reasonable to expect 

that Hurley could alone produce a draft indictment as expeditiously as we 

believe should have occurred in Operation Fast and Furious. The failure to 

adequately staff the case was a significant mistake. 

d. Former Criminal Chief Cunningham 

Cunningham joined the U.S. Attorney’s Office as Criminal Chief on 

January 11, 2010, over two months after Operation Fast and Furious had been 

initiated and just several days after ATF and the U.S. Attorney’s Office had 

decided to pursue a wiretap in the investigation. Cunningham told us that 

when he arrived at the office, he received a general briefing about that 

investigation and others by outgoing Acting Criminal Chief Joe Lodge. 

Cunningham said Lodge told him that Operation Fast and Furious was 

assigned to an experienced prosecutor who had the case under control. 

Cunningham also told us that he knew the case was supervised by Morrissey, 

whom he knew and thought highly of. Cunningham said that for these 

reasons, he focused his attention on other priority matters during the first 

several months in the office. 
446 

However, by March 2010, Cunningham had received sufficient 

information about the investigation to put him on notice about the nature and 

scope of the case. On February 22, Cunningham learned the details of ATF’s 

41-gun seizure on the Tohono O’odham Indian Reservation that were linked to 

Operation Fast and Furious, the case in which Hurley was drafting a wiretap 

application. This incident prompted Burke to request a briefing on Operation 

Fast and Furious from Hurley, Morrissey, and Cunningham as “[s]oon as we 

can.” When the Criminal Division approved the application on March 10, 

Cunningham received Morrissey’s e-mail about the approval that stated that 

using a wiretap in a firearms case was “unusual, and aggressive,” and that 

Hurley was a “trailblazer.” Cunningham also appeared to have attended a 

briefing provided by Hurley the next day for U.S. Attorney Burke. Hurley told 

us that he would have mentioned at this briefing the number of subjects in the 

case and the pending wiretap application. In addition, Cunningham told us 

that he received Hurley’s March 23 memorandum to Burke that summarized 

the status of the investigation. This document described the objective of the 

investigation to “identify all of the major players in the conspiracy and discover 

the methods and means used to cross guns into Mexico,” and stated that the 

subjects had already purchased more the $500,000 in firearms. The 

memorandum also stated that additional wiretaps were anticipated, and that 

agents also were using other innovative strategies, such as placing tracking 

devices in firearms purchased by subjects. 

In short, the information about Operation Fast and Furious that 

Cunningham received described a significant and innovative investigation of an 

active firearms trafficking group that had already spent $500,000, and that 

agents intended to continue investigating through wiretaps in order to identify 

key figures in the conspiracy and determine how firearms were being 

transported into Mexico. We believe this information was sufficiently 

significant to prompt greater engagement in the case by Cunningham, 

including asking questions about plans for enforcement action against any of 

the subjects and, if none, the public safety implications of that approach. The 

fact that Cunningham told us that he was not aware of the number of firearms 

purchased, and did not ask, confirmed to us that his oversight of the 

investigation was deficient. 

e. Former U.S. Attorney Burke 

Former U.S. Attorney Burke, as the chief federal law enforcement officer 

for the District of Arizona, was ultimately responsible for his office’s 

involvement in Operation Fast and Furious. We believe that Burke received 

sufficient information about the nature and scope of the investigation that he 

should have ensured the case received close supervision that included regular 

reassessments of the state of the evidence and the measures that were being or 

should have been taken to address the risk to public safety created by the 

subjects’ ongoing firearms trafficking. We concluded that Burke failed to 
447 

exercise responsible oversight and failed to provide the leadership and 

judgment required of a United States Attorney. 

Burke began his tenure as U.S. Attorney in September 2009 and began 

receiving information about Operation Fast and Furious in November when 

Newell informed him about a large seizure of firearms in Mexico connected to 

the ATF investigation. Hurley told Burke in an e-mail at that time that the 

recovery was associated with several straw purchasers ATF was investigating, 

but that it “will take time to build into an indictable case” and that “[w]e will 

not be able to see the purchasers arrested immediately.” This was also the 

message conveyed to Burke on January 5, 2010, when Morrissey forwarded to 

him the memorandum drafted by Hurley summarizing his meeting with ATF 

about the case. Hurley stated that ATF had identified a “hub-and-spokes” 

conspiracy involving at least 15 straw purchases already responsible for 

purchasing more than 600 firearms, 100 of which had been recovered in 

Mexico and the United States. Hurley also stated that the available evidence 

did not yet support chargeable offenses against any of the subjects, described 

the challenges of investigating a firearms trafficking conspiracy, and stated 

that he concurred with ATF’s decision to pursue a longer term investigation to 

target the leader of the conspiracy. Morrissey also told Burke in the e-mail 

forwarding the memorandum that “[w]e should hold out for the bigger case, try 

to get a wire, and if it fails, we can always do the straw buyers.” Burke’s 

response reflected unqualified support: “Hold out for bigger. Let me know 

whenever and w/whomever I need to weigh-in [sic].” 

Burke did not express any concerns about the consequence of this longer 

term approach – that the subjects would continue trafficking firearms for the 

foreseeable future – and did not ask any questions about measures that might 

be taken to deter the activity. Burke expressed similar unqualified support 

when he learned about the Tohono O’odham seizure in February 2010 (“This is 

great stuff!”) and when he was informed in March 2010 that the first wiretap in 

the case had been approved (“Frickin’ love it!!”). Burke still did not express 

concerns about the public safety implications of the investigation, or ask 

questions about what agents were doing to disrupt any of the activity that 

clearly was continuing. 

Burke acknowledged to us that he should have asked more questions 

about the case, and that just because Newell and Hurley were telling him that 

everything was going well in the investigation, this should not have caused 

Burke to take the case “off the dashboard.” Burke called this case a “big 

management lesson.” We agree, but similar to Newell’s and Morrissey’s 

observations about Operation Fast and Furious, do not believe this assessment 

requires the benefit of hindsight. We found that Burke failed to ask the kinds 

of questions about the investigation that might have revealed the deficiencies 

that we have described in this report. Indeed, his e-mails reflect that he largely 

provided unqualified support for the investigation. Even after Burke told us he 
448 

spoke to Morrissey in approximately August 2010 about bringing the case to a 

close, we did not see evidence that Burke took action to create any urgency in 

his office to get the case indicted swiftly. 

3. ATF Headquarters 

a. Former Deputy Assistant Director McMahon 

Of all ATF Headquarters executives, McMahon was most familiar with 

Operation Fast and Furious during 2009 and 2010 and was best situated to 

influence its development. His duties included oversight of the Phoenix Field 

Division and its investigations, he was Newell’s primary point of contact at ATF 

Headquarters regarding the investigation, and, as we discovered, he played a 

pivotal role in determining whether certain key information about it was 

disseminated to his supervisors. 

We determined that McMahon’s oversight of the Phoenix Field Division’s 

handling of Operation Fast and Furious was wholly inadequate. We found that 

he did not attempt to oversee the investigation in an active way even though he 

described it to us as ATF’s most significant firearms trafficking investigation on 

the Southwest Border. Although his initial instincts in the case were to have 

agents interrogate some of the leading straw purchasers, he capitulated to 

Newell’s multi-layered explanation about why that was a bad idea and then 

failed to revisit the issue again and press Newell on the point. Overall, 

McMahon seemed reluctant to bring his years of agent experience to bear on 

the case and instead was content to support Newell. That approach was a 

mistake in Operation Fast and Furious. 

We believe that McMahon should have reacted to the information that he 

received about the investigation in December 2009 and January 2010 by fully 

evaluating the risks to public safety that Newell’s strategy of “allowing firearms 

purchases to continue” created. McMahon was aware in early December 2009 

that Operation Fast and Furious involved hundreds of firearms, that the pace 

of purchasing activity was extraordinary, and that agents had advance notice of 

firearms purchases and were conducting surveillance of them. He attended the 

OSII briefing on January 5, 2010, that showed that the firearms involved in the 

case exceeded 650, one straw purchaser had acquired nearly 200 firearms, and 

another 2 had acquired more than 100 each. Despite these facts, we found 

that ATF had no seizures or contacts with any of the straw purchasers during 

the first 100 days of the investigation. 

McMahon concurred with this approach and was willing to accept that 

agents could watch month after month as straw purchasers acquired hundreds 

of firearms and that, despite months of investigative activity, probable cause 

was lacking to seize firearms – all according to Newell. McMahon should have 
449 

exercised judgment independent of Newell’s, worked with Chait to formulate a 

strategy that protected the public, and sought Hoover’s concurrence with it. 

McMahon also failed to share important information about the 

investigation with Chait and Hoover. He omitted reading and disseminating 

the January 8 memorandum from Newell that spelled out the flawed case 

strategy, and failed to highlight to other senior executives that agents had 

advance notice of firearms purchases. Chait told us that he believed 

throughout the investigation that agents were learning of the purchases after 

the fact, and Hoover did not ask about the issue until mid-March 2010, which 

contributed to his asking for the exit strategy. 

We also found that McMahon’s oversight of the exit strategy was lacking. 

Chait told us that he had to remind McMahon to request the strategy, which 

McMahon did the day before the April 28 meeting with the Department’s 

Criminal Division to discuss Operation Wide Receiver. We believe he also failed 

to encourage Newell to confront the U.S. Attorney’s Office over delays and to 

frame the issue for his supervisors that would have resulted in the issue being 

elevated within ATF and if necessary to the Office of the Deputy Attorney 

General. 

McMahon also missed opportunities to identify problems in the 

investigation through review of the wiretap applications. Although we 

determined that he did not have a duty under ATF’s outdated wiretap policies 

applicable at the time to review the applications, other DADs told us it was 

their practice to review the agent affidavits. After we showed McMahon the 

affidavits he told us that he would have questioned Newell about their 

contents. 

b. Former Assistant Director Chait 

Chait was the Assistant Director for the Office of Field Operations which, 

as we described in Chapter Five, failed to exercise adequate oversight of 

Operation Fast and Furious. Although we believe that McMahon committed 

serious errors and at times failed to inform Chait and other ATF executives 

about significant developments in Operation Fast and Furious, we found that 

Chait also shares substantial responsibility for the significant lapses in ATF 

Headquarters’ oversight. 

Chait should have demonstrated better leadership after receiving the 

OSII briefings on January 5 and 12, 2010, and sought information from Newell 

about the case strategy and Newell’s intentions. We reject the notion that 

Chait suggested to us that ATF’s practice of decentralized administration 

should excuse the lack of oversight that he demonstrated in Operation Fast 

and Furious. Given the intensity of the firearms trafficking that was described 

to Chait in briefings, he should have undertaken with McMahon and Newell a 
450 

thorough assessment of the risks to the public safety that the case presented, 

vetted the results of that assessment with Deputy Director Hoover, and 

proposed a strategy to quickly conclude the investigation. Thereafter he should 

have monitored the investigation and reevaluated its progress at frequent 

intervals. We also believe that he should have known from the totality of 

circumstances in the investigation that agents had advance notice of firearms 

purchases and were refraining from taking enforcement action. Chait should 

have asked more questions, better recognized problems, and introduced a 

sense of urgency to resolve them and to conclude the investigation. 

We further determined that Chait should have better overseen 

procurement of the exit strategy that Hoover requested from the Phoenix Field 

Division and ensured that it was promptly implemented. He also did not 

evaluate the wiretap applications and affidavits as ATF policy required. As with 

other aspects of Operation Fast and Furious, Chait was not diligent in ensuring 

that these important functions were performed. 

c. Former Deputy Director Hoover 

Our conclusions regarding Deputy Director Hoover are the same in many 

respects as for Melson. As Deputy Director, Hoover functioned as ATF’s Chief 

Operating Officer and was the most senior agent in ATF. He directly oversaw 

the Office of Field Operations and therefore had management responsibilities 

concerning ATF’s investigations. 

We believe that Hoover, like Melson, was ill-served by Newell, Chait, and 

McMahon, and should have been provided more complete information about 

the investigation earlier in its development. He also should have been afforded 

an opportunity to authorize the case strategy in light of its inherent risks to 

public safety. 

We also determined, however, that Hoover should have paid much closer 

attention to Operation Fast and Furious following the OSII briefing that he 

received with Melson and Chait on January 12, 2010, and that he should have 

asked probing questions earlier than he did regarding whether agents had 

advance notice of firearms purchases and were refraining from taking 

enforcement action. Hoover told us that he asked McMahon and Chait whether 

agents had advance notice of firearms purchases about the time that he asked 

for the exit strategy, which would have been mid-March 2010. He also said he 

assumed without asking that ATF agents were responsible in part for the many 

seizures and recoveries that were being reported to ATF Headquarters. Hoover, 

however, assumed too much and failed to ask important questions about the 

case until too late. He also failed to respond adequately to the concerns that 

McDermond and Rowley expressed to him about the volume of firearms in the 

case. 
451 

Hoover should have better informed himself about the investigation and 

asked for and received an exit strategy months earlier than April. (As we 

explained above, Chait should have preempted such a request). He also should 

have assumed some responsibility for ensuring that the strategy was prepared 

and for overseeing its implementation once it did arrive. We believe that 

Hoover’s engagement on these issues was especially important given that he 

was aware by late April 2010 of “gun walking” problems in Operation Wide 

Receiver, for which Newell as SAC was responsible. We believe these facts 

counseled in favor of close supervision of Newell’s implementation of the exit 

strategy. Instead, we found that the exit strategy did not reach ATF 

Headquarters until more than a month after Hoover asked for it, and he did not 

read it until 2011. Overall, we found Hoover’s oversight of Operation Fast and 

Furious was seriously deficient. 

As with Melson, Hoover’s failure to adequately inform himself about 

Operation Fast and Furious resulted in his presenting Acting Deputy Attorney 

General Grindler with an incomplete briefing on Operation Fast and Furious in 

March 2010. Hoover also failed to provide any updated briefings to Grindler 

even after developing significant concerns about the case. 

We found that Hoover’s response to Agent Terry’s murder was deficient. 

We believe that he should have sought detailed information about the 

investigation after he learned about the connection between the firearms found 

at the murder scene and Operation Fast and Furious. If he had done so, he 

would have discovered from reviewing the materials that “gun walking” 

occurred in the investigation and would have been better prepared to answer 

questions from the Department in January and February 2011. 

d. Former Acting Director Melson 

Melson was the Acting Director of ATF while Operation Fast and Furious 

was planned and executed. During his tenure he was responsible for the 

performance of ATF and, given this fact, he is accountable for the agency’s 

handling of Operation Fast and Furious. 

We determined that Melson was not well served by Deputy Director 

Hoover, by senior leaders in ATF’s Office of Field Operations, and by SAC 

Newell. We found that at the outset of the investigation, DAD McMahon and 

staff in ATF’s Phoenix Field Division decided issues that impinged on the 

integrity of ATF’s commitment to protect the public without the involvement of 

either Deputy Director Hoover or Melson. We believe that Melson was entitled 

to expect much more from the Office of Field Operations than McMahon and 

AD Chait delivered. As we described in Chapter Five, McMahon and Chait’s 

oversight of the investigation was inadequate and contributed to Melson’s 

failure to recognize problems with the investigation in a timely fashion. 
452 

In evaluating Melson’s conduct, we also believe it is significant that 

Melson was not the confirmed Director of ATF, and that he was not the 

nominee for the permanent Director position. His appointment as Acting 

Director was an interim assignment which he had held for only six months 

when Operation Fast and Furious was opened in the Phoenix Field Division. 

While these facts do not excuse Melson’s performance concerning Operation 

Fast and Furious, we believe that they are noteworthy in assessing his role in 

ATF’s handling of the investigation. 

We are critical of Melson in several important respects. First, we believe 

that as an experienced federal prosecutor, he should have recognized by the 

time of his briefing on Operation Fast and Furious in March 2010 that the 

fundamentals of the investigation (the amount of time the investigation had 

been open, the level of proactive investigative activity, and the number of 

firearms that were involved) pointed toward needed enforcement action – at a 

minimum ATF-initiated seizures – that were lacking and therefore required 

explanation. Melson made too many assumptions about the case and what 

should have been occurring in Phoenix. Melson should have asked basic 

questions about the investigation, including how public safety was being 

protected. The bare representation that agents were seizing firearms at every 

opportunity should not have foreclosed questioning about what was happening 

with all of the firearms that were being trafficked and what agents were doing 

during their surveillances. The purported lack of probable cause simply was 

not a credible explanation by March 2010. Melson should have recognized 

that, learned more about the investigation, and responded accordingly. We 

believe that his oversight of Operation Fast and Furious was deficient. 

Second, Melson participated in an incomplete briefing for Acting Deputy 

Attorney General Grindler in March 2010 concerning Operation Fast and 

Furious. We determined that by the time of this briefing Melson had received 

sufficient information about the scope and significance of Operation Fast and 

Furious that he should have been asking probing questions about the strategy 

in the case and whether efforts were being made to minimize the risk to public 

safety. As a result of his failing to do so, he provided incomplete information 

about Operation Fast and Furious to Grindler. Moreover, even as he developed 

increasing concerns about the investigation in 2010, and despite its significant 

effect on Mexico, he failed to provide any additional briefing to Grindler about 

the investigation. 

Third, we believe that Melson was ineffective in addressing concerns he 

had over delays with closure and indictment of the case. He never complained 

to Burke, and we found no e-mails or other documents corroborating his 

statement that he may have complained to staff in the Office of the Deputy 

Attorney General. Although we acknowledge that Melson took some steps to 

mitigate the delays, such as offering to send ATF attorneys to Phoenix, asking 

Chait about the status of the case, and contacting the Criminal Division about 
453 

his concerns, we believe that Melson’s omissions perpetuated an approach 

towards Operation Fast and Furious that lacked sufficient urgency. 

Finally, even after Agent Terry was murdered in December 2010 and the 

firearms found at the scene were found to be connected to Operation Fast and 

Furious, Melson took no significant action within ATF other than to ask for 

information about Avila’s role in the investigation. We believe Melson should 

have initiated a review of the investigation after he learned about the 

connection. 

4. Department Leadership 

a. Attorney General Holder 

We determined that Attorney General Holder did not learn about 

Operation Fast and Furious until late January or early February 2011 and was 

not aware of allegations of “gun walking” in the investigation until February. 

We found no evidence that Department or ATF staff informed the Attorney 

General about Operation Wide Receiver or Operation Fast and Furious prior to 

2011. We concluded that the Attorney General’s Deputy Chief of Staff, the 

Acting Deputy Attorney General, and the leadership of the Criminal Division 

failed to alert the Attorney General to significant information about or flaws in 

those investigations. 

Although the Office of the Attorney General received various weekly 

reports from components in the Department that mentioned Operation Fast 

and Furious, we found that Attorney General Holder did not personally review 

these reports at the time that his office received them and that his staff did not 

highlight them for his review. Moreover, we determined that these reports did 

not refer to agents’ failure to interdict firearms or include information that 

otherwise provided notice of the improper strategy and tactics that ATF agents 

were using in the investigation. Although the National Drug Intelligence Center 

reports (NDIC) referred to 1,500 firearms that Celis-Acosta and straw 

purchasers had trafficked to Mexican drug cartels, the reports did not state or 

suggest that ATF had advance knowledge of the firearms purchases or 

otherwise knowingly allowed the guns to cross the border. 

b. Former Deputy Chief of Staff Wilkinson 

We found that Former Deputy Chief of Staff Wilkinson learned from U.S. 

Attorney Burke on December 15, 2010, that two firearms recovered at the Terry 

murder scene were linked to an ATF firearms trafficking investigation, but 

failed to notify the Attorney General of this fact. Holder told us that he did not 

learn of the link until early 2011, around the time he first became aware of 

Operation Fast and Furious. Wilkinson should have promptly informed the 

Attorney General of the link given that the information implicated significant 

Department interests. 
454 

c. Former Acting Deputy Attorney General Grindler 

ATF provided then Acting Deputy Attorney General Grindler with a short 

briefing on Operation Fast and Furious during a meeting that lasted 

approximately one hour or less on March 12, 2010, and that addressed six 

other agenda items. Melson and Hoover presented the case to Grindler as a 

significant case but did not identify any questions or concerns for him about 

the investigation. We believe that the limited information presented at the 

briefing was not sufficient to put Grindler on notice of ATF’s failure to interdict 

firearms that it could have legally seized. 

Like the Office of the Attorney General, the Office of the Deputy Attorney 

General received weekly reports from Department components that referred to 

Operation Fast and Furious. We found that Grindler had no recollection of 

having reviewed any weekly report concerning Operation Fast and Furious or of 

his staff highlighting such information for his review. As stated above, we 

determined that these reports did not refer to agents’ failure to interdict 

firearms or include information that otherwise provided notice of the improper 

strategy and tactics that ATF agents were using in the investigation. 

We determined that Grindler learned on December 17, 2010, of the link 

between weapons found at the Terry murder scene and Operation Fast and 

Furious but did not inform the Attorney General about this information. We 

believe that he should have informed the Attorney General as well as made an 

appropriate inquiry of ATF or the U.S. Attorney’s Office about the connection. 

Grindler told us that he was relying on the FBI to investigate the homicide and 

that would include investigation of the weapons in question. We found that 

Grindler’s reliance on the FBI was misplaced given that it did not have the 

responsibility to determine whether errors in ATF’s investigation led to the 

weapons ending up at the murder scene or why ATF failed to take law 

enforcement action against Avila for nearly one year and did so only after Agent 

Terry’s murder. We also believe that Grindler should have ensured that the 

Department of Homeland Security was informed about the linkage. 

d. Assistant Attorney General Breuer 

We determined that Breuer did not authorize any of the investigative 

activities in Operation Fast and Furious, including wiretaps. Breuer did not 

review the wiretap applications and took no actions concerning them. We also 

found no evidence indicating that AAG Breuer was aware in 2009 or 2010 that 

ATF agents in Operation Fast and Furious were failing to interdict firearms. 

Breuer told us that he did not learn about “gun walking” allegations in 

Operation Fast and Furious until public revelations in 2011. 

However, as we described in Chapters Three and Five, in April 2010 

Breuer learned about Operation Wide Receiver and that ATF had allowed guns 
455 

to “walk” in that case. Breuer told us that upon learning this information, he 

told Deputy Assistant Attorney General Weinstein to talk to ATF leadership to 

make sure that they understood that the Criminal Division planned to move 

forward with the case, but that the investigation had used “obviously flawed” 

techniques. Given the significance of this issue and the fact that ATF reports 

to the Deputy Attorney General, we believe Breuer should have promptly 

informed the Deputy Attorney General or the Attorney General about the 

matter in April 2010. Breuer failed to do so. 

e. Deputy Assistant Attorney General Weinstein 

We found that given his level of knowledge about Operation Fast and 

Furious and his familiarity with the “gun walking” tactics employed by ATF in 

Operation Wide Receiver, Deputy Assistant Attorney General Weinstein was the 

most senior person in the Department in April and May 2010 who was in a 

position to identify the similarity between the inappropriate tactics used in 

Operations Wide Receiver and Fast and Furious. 

As we described in Chapters Three and Five, Weinstein learned in early 

April 2010 after reviewing the prosecution memorandum in Operation Wide 

Receiver that ATF had allowed guns to “walk” in that case, which Weinstein 

defined to include choosing not to interdict firearms despite having the legal 

basis and ability to do so. According to Weinstein, after he informed Breuer of 

this, Breuer agreed that Weinstein should bring the matter to the attention of 

ATF leadership. Breuer also told us that he told Weinstein to talk to ATF 

leadership to make sure that they understood that the Criminal Division 

planned to move forward with the case, but that the investigation had used 

“obviously flawed” techniques. 

Weinstein, an official from the Criminal Division’s Gang Unit, and two 

public affairs officials met with Hoover and McMahon on April 28, 2010, after 

the investigative phase of Operation Wide Receiver had concluded. As we 

described in Chapter Three, the Gang Unit official told us that the discussion of 

“gun walking” during that meeting was not in the nature of “finger-wagging” or 

admonishment of ATF. In addition, although Weinstein told us he described 

the improper tactics, he said that he did not have to go into detail about the 

issue because he understood from Hoover’s reaction that he “immediately got 

why it was so troubling.” Based on contemporaneous e-mails and the notes 

and statements of those who attended the meeting, we concluded that 

Weinstein did not admonish ATF for the failure to interdict firearms in 

Operation Wide Receiver or otherwise convey in forceful terms the Criminal 

Division’s view that such tactics were unacceptable and would not be 

condoned. We found that the discussion at the meeting focused instead on 

how to avoid negative press for ATF arising from the fact that guns had 

“walked” in the investigation, as well as issues arising from the ATF’s use of an 
456 

FFL as a confidential informant and an agent’s acceptance of a gift from the 

FFL. 

We further found that at the April 28 meeting, McMahon told Weinstein 

that ATF had another case – Operation Fast and Furious – that, like Operation 

Wide Receiver, involved a high volume of firearms that had been trafficked. 

Weinstein told us that he understood from the discussion that ATF had been 

aggressively seizing guns in that investigation but that ATF would have to 

answer questions about the guns they did not seize. We found, however, that 

Weinstein failed to ask questions about Operation Fast and Furious to ensure 

that his understanding was correct that the case did not involve tactics like 

those used in Operation Wide Receiver. We also found that when he reported 

back to Breuer about the April 28 meeting, Weinstein told Breuer about the 

discussion involving Operation Wide Receiver but did not mention Operation 

Fast and Furious.

Following their meeting on April 28, Weinstein and McMahon continued 

to communicate about Operation Fast and Furious, and Weinstein learned 

enough about the investigation to ask OEO about the possibility of obtaining a 

roving wiretap in the case and to describe it in an e-mail on May 7 to the head 

of OEO as an “investigation of a gun-trafficking ring responsible for sending 

well over 1,000 guns across the SWB into Mexico” and “perhaps the most 

significant Mexico-related firearms-trafficking investigation ATF has going.” 

Yet, Weinstein told us that when he received the first wiretap application 

he was asked to review for Operation Fast and Furious just two weeks later, on 

May 18, 2010, he did not review the agent’s affidavit in support of the 

application. Moreover, although Weinstein told us that he reviewed the OEO 

cover memoranda accompanying that application, he failed to recognize that 

the memoranda clearly suggested that ATF agents had monitored purchases of 

firearms that they knew were illegal, and allowed a known straw purchaser to 

continue his illegal activities for a gun trafficking organization that sold 

weapons to a drug cartel in Mexico. We found that given Weinstein’s 

heightened awareness of the “gun walking” issues in Operation Wide Receiver 

and his knowledge of Operation Fast and Furious, his review of the first OEO 

cover memorandum that he received should have caused him to read the 

affidavit and ask questions about the operational details of Operation Fast and 

Furious. 

II. Department’s Statements to Congress Concerning ATF Firearms 

Trafficking Investigations 

A. Summary of the Department’s Statements to Congress 

In Chapter Six we examined the Department’s statements to Congress, in 

letters and the testimony of officials, about ATF’s firearms trafficking 
457 

investigations. The focus of our review was the Department’s February 4, 

2011, response to allegations in letters from Sen. Charles Grassley that ATF 

had “sanctioned the sale of hundreds of assault weapons to suspected straw 

purchasers” who then transported these weapons throughout the Southwest 

Border area and into Mexico, and that two of these weapons were used in a 

firefight that resulted in the death of Customs and Border Protection Agent 

Brian Terry. In its February 4 response the Department denied that ATF 

“’sanctioned’ or otherwise knowingly allowed the sale of assault weapons to a 

straw purchaser who then transported them into Mexico,” and also asserted 

that “ATF makes every effort to interdict weapons that have been purchased 

illegally and prevent their transportation to Mexico.” 

Our review of this February 4 letter focused on the officials who had 

direct and substantial participation in formulating the Department’s February 

4 response to Sen. Grassley’s allegations: Office of Legislative Affairs (OLA) 

Special Counsel Faith Burton, an OLA line attorney who assisted her, Assistant 

Attorney General for Legislative Affairs Ron Weich, Weinstein, Office of the 

Deputy Attorney General Senior Counsel Brad Smith, U.S. Attorney for the 

District of Arizona Dennis Burke, ATF Deputy Director Hoover, and Acting 

Director Melson. We also reviewed the conduct of other senior officials who 

either had a minimal role or no role at all in drafting the February 4 letter but 

who were knowledgeable about how the Department responded to Sen. 

Grassley’s January 2011 letters or were involved in the decision to withdraw 

the February 4 letter in December 2011. These officials include Deputy 

Attorney General James Cole, Chief of Staff to the Attorney General Gary 

Grindler, and Assistant Attorney General for the Criminal Division Lanny 

Breuer. 

We found that Attorney General Holder had no involvement in drafting or 

reviewing the February 4 letter that he decided to withdraw in December 2011 

after concluding that it contained inaccuracies. Although Holder received 

directly from Sen. Grassley the January 27 and 31 letters containing 

allegations that ATF had sanctioned the sale of assault weapons to straw 

purchasers, we determined that Holder had no part in the fact-gathering, 

editing, or approval process that led to the Department’s issuance of an 

inaccurate response on February 4. 

Subsequent to sending the February 4 letter and after the Department 

had examined the conduct in Operation Fast and Furious and other ATF 

firearms trafficking investigations, Department officials dramatically narrowed 

their statements to Congress about these activities. Most notably, in a May 2 

letter to Sen. Grassley, the Department wrote, “It remains our understanding 

that ATF’s Operation Fast and Furious did not knowingly permit straw buyers 

to take guns into Mexico.” In testimony before the House Committee on 

Oversight and Governmental Reform on June 15, 2011, Assistant Attorney 

General for Legislative Affairs Ronald Weich stated that there was a “technical 
458 

explanation for why the allegation that ATF sanctioned the sale of guns to 

straw purchasers who then transported them to Mexico is not an accurate 

statement,” and that the Department was no longer “clinging to the 

statements” in its prior letters. 

On December 2, 2011, the Department formally withdrew the February 4 

letter, stating that it “contains inaccuracies.” The December 2 letter stated 

that the Department officials who drafted the letter “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,” and that information 

provided by these supervisors was inaccurate. 

Below we summarize our conclusions related to the drafting of the 

February 4 letter and Department officials’ subsequent statements to Congress 

about the assertions in that letter. We also discuss a memorandum issued by 

the Deputy Attorney General on January 26, 2012, that seeks to address 

problems that the Department identified following the controversy about the 

February 4 letter. 

B. The Flawed February 4 Letter Drafting Process 

As stated in the December 2 letter, Department officials in the Office of 

Legislative Affairs, the Criminal Division, and the Office of the Deputy Attorney 

General relied on information provided by senior U.S. Attorney’s Office and ATF 

Headquarters officials in drafting its February 4 response to Sen. Grassley. We 

concluded that the Department officials who drafted the February 4 letter were 

provided inaccurate information from senior component officials, but that due 

to other flaws in the drafting process, the Department officials who drafted the 

letter share responsibility with these component officials for issuing a letter 

that contained inaccurate information to a Member of Congress. We first 

summarize the inaccurate information that these senior component officials 

provided to Department officials and then summarize our assessment of the 

performance by Department officials that also contributed toward issuing the 

inaccurate February 4 letter. 

In preparing the February 4 response, the primary sources of information 

to Department officials about Operation Fast and Furious were Melson, Hoover, 

and Burke. 

Melson assured Office of the Deputy Attorney General Senior Counsel 

Brad Smith on January 28 that ATF “never knowingly allowed guns to walk 

across the border to Mexico where they had probable cause to make the stop.” 

For the reasons discussed in Chapter Four, we concluded that this was not 

accurate. Melson told the OIG that he had made the statement to Smith based 

both on ATF policy and assurances from the Phoenix Field Division, as relayed 
459 

to him through McMahon, Chait, and Hoover. Melson also told Smith that ATF 

did not know Avila was a straw purchaser when he purchased the firearms 

found at Agent Terry’s murder scene on December 15, 2010. This was also an 

inaccurate statement. Melson told Smith that he made this statement based 

on the assurances of subordinates. We believe Melson did receive and pass 

along to Department officials inaccurate information from his subordinates. 

However, by the time he had received the allegations in Sen. Grassley’s 

January letters he knew enough about the investigation to have concerns 

about it and should have asked more probing questions regarding the conduct 

of the investigation before assuring Department officials that the allegations 

were untrue. 

Hoover met and was in frequent contact with Burton, Weinstein, and 

other Department officials as the February 4 letter was being drafted. 

According to Weinstein and Burton, Hoover provided emphatic assurances 

during this time that ATF had not allowed firearms to “walk” to Mexico. As 

with Melson, we believe that Hoover should have been better served by his 

subordinates, both at Headquarters and in the Phoenix Field Division as the 

Department sought information from him to respond to the allegations in Sen. 

Grassley’s letters. However, we also believe that Hoover by this point 

possessed sufficient knowledge about the investigation to have concerns about 

it, and therefore should not have provided sweeping assurances to Burton and 

Weinstein that ATF “always tries to interdict weapons purchased illegally” and 

to “interdict all [firearms] that are being transported to Mexico.” 

Burke had significant involvement in shaping the Department’s February 

4 letter to Sen. Grassley. Although Burke was in Mexico on official business 

from February 1 through 3, e-mail records show that he remained in steady 

contact with Weinstein, Burton, Hoover, and other officials who were drafting 

and editing the letter. Burke assured Department officials that Sen. Grassley’s 

allegations were false. Burke also told Weinstein that Avila purchased the 

firearms found at Agent Terry’s murder scene before Operation Fast and 

Furious began. This was inaccurate because Avila had been designated as a 

suspect in the investigation nearly two months before he purchased these 

firearms. The evidence that we reviewed strongly suggests that by the time 

Burke made this inaccurate statement, he had received information showing 

that Avila had been a suspect from the inception of Operation Fast and Furious 

in November 2009.323

 

323 Burke resigned as U.S. Attorney in August 2011 and, through counsel, declined the 

OIG’s request to be interviewed about his involvement in drafting the February 4, 2011, letter

to Sen. Grassley. In Chapter Six we noted three other incidents that are relevant to our 

assessment of Burke’s conduct. One of these incidents concerns Burke’s statements to the 

Terry family, members of whom told the OIG that in a meeting with Burke on March 10, 2011, 

he told them that the weapons found at Agent Terry’s murder scene were sold out of a Texas 

 Burke acknowledged in his December 2011 interview 

(Cont’d.)
460 

with congressional staffers that his statement that Avila had purchased the 

weapons before the investigation began was “inaccurate,” but said that it was 

not intentional. He further stated that his incorrect statement “reflects that I 

didn’t fully know the facts at that time.” We believe that Burke’s actions with 

respect to the February 4 letter were irresponsible. 

We found that Department officials also contributed to the inclusion of 

inaccurate information in the February 4 letter through a poorly executed 

information gathering and drafting process and questionable judgments, and 

therefore these officials share responsibility for issuing an inaccurate letter 

with the component officials they relied upon for information. 

We believe that as a general proposition, when Department officials – 

typically in the Office of Legislative Affairs – respond to Congressional inquiries, 

they should be able to rely on knowledgeable component officials for 

information. While deferring to components is generally a reasonable 

approach, in a circumstance such as this, where a credible allegation has been 

made regarding potentially serious misconduct involving those components, 

deference to officials close to the activity at issue should be tempered by the 

recognition that those officials are also invested in a positive portrayal of the 

activity and their alleged involvement in it. As such, officials who should be 

knowledgeable and forthcoming about the activity may be inclined, perhaps 

even unintentionally, to shade or ignore unhelpful facts when providing 

information about their conduct to senior officials. 

We found that in drafting the February 4 response to the extremely 

serious allegations in Sen. Grassley’s letters, Department officials too readily 

accepted the assurances of officials at ATF and the U.S. Attorney’s Office, and 

failed to develop an independent understanding of the information that was 

relevant to the allegations. As Weich told the OIG, the Department “accept[ed] 

the information uncritically,” and in the future should “be more questioning” of 

those providing information. 

The Department’s failure to adequately gather and understand the 

relevant information manifested itself in several ways. As a threshold matter, 

the Department’s response was flawed in its scope. In his January 27 letter, 

Sen. Grassley stated that he was “specifically writing” about “an ATF operation 

 

shop, not an Arizona shop. Yet, on December 15, 2010, Burke wrote an e-mail message to 

Monty Wilkinson in the Office of the Attorney General stating that “[t]he guns found in the 

desert near the murder [sic] [CBP] officer connect back to the investigation we were going to 

talk about – they were AK-47s purchased at a Phoenix gun store.” Another is Burke’s 

admission to the OIG that he provided to a member of the media a copy of ATF Special Agent 

Dodson’s May 2010 undercover proposal, as we discussed in Chapter Four.
461 

called ‘Project Gunrunner.’”324

Moreover, Burke, Hoover and Melson limited their information-gathering 

efforts primarily to the issue of the two AK-47 style firearms that had been 

purchased by Avila and found at the scene of Agent Terry’s murder on 

December 15, 2010. Officials at the Department, and in particular Weinstein, 

reinforced and perpetuated this narrow focus on the portion of the allegation 

that concerned the two firearms purchased by Avila, which Weinstein described 

in an e-mail message as “the most salacious and damaging to ATF, both shortand long-term.” While the link between these firearms and the ATF 

investigation was among the allegations in Sen. Grassley’s letters, it was not 

the only allegation. Yet, we found that officials involved in drafting the 

February 4 letter paid virtually no attention to the broader allegation that “ATF 

sanctioned the sale of hundreds of assault weapons to suspected straw 

purchasers, who then allegedly transported these weapons throughout the 

southwestern border area and into Mexico.” Consequently, based on Hoover’s 

statements (as recorded by Burton in her notes) that “We always try to interdict 

weapons purchased illegally” and “We try to interdict all that we [sic] being 

transported to Mexico,” the February 4 letter stated: 

 Although Weinstein and OLA Special Counsel 

Faith Burton told us that they understood Sen. Grassley’s concerns to be about 

Operation Fast and Furious, the response they helped to draft mentioned no 

specific investigation, and we therefore found that a reader of the letter would 

likely conclude that the Department’s sweeping denial of the allegations applied 

to all cases under the umbrella of “Project Gunrunner,” and not just Operation 

Fast and Furious. This was, in our view, a serious drafting flaw. 

ATF makes every effort to interdict weapons that have been 

purchased illegally and prevent their transportation to Mexico. 

It was this statement in particular, which appeared in the first draft of the 

letter and remained unchanged through the signed version that was sent to 

Sen. Grassley, that Department officials later concluded was inaccurate and 

caused the Department to withdraw the February 4 letter. 

Second, as discussed above, we found that component officials provided 

factually erroneous information to the Department officials who were drafting 

the February 4 response. This inaccurate information was significant because 

it pertained to Avila and his role in Operation Fast and Furious, and was 

therefore relevant to the allegation in Sen. Grassley’s January 27 letter that 

ATF Headquarters, U.S. Attorney’s Office, and Department officials considered 

most important. The inaccurate information was also significant because it 

 

324 “Project Gunrunner” was a broad initiative by ATF to address firearms trafficking 

along the southwest border. Operation Fast and Furious was a part of the Project Gunrunner 

initiative, as were numerous other investigations.
462 

was demonstrably false and should have served as an indication that the 

officials who provided it were not a reliable source of information about the 

investigation. 

Specifically, in response to a question from Weinstein to Burke on 

January 31 about the firearms linked to the Terry murder, Burke wrote that 

they were “[p]urchased at [FFL1] before the investigation began.” In fact, Avila 

purchased the two assault weapons found at the Terry murder scene many 

weeks after Operation Fast and Furious had begun and Avila had been 

designated as a suspect by ATF in its case management system. Weinstein 

conveyed this inaccurate information to Breuer, although Weinstein stated that 

he did not know the information was inaccurate at the time.325

During a February 1 conversation with Hoover and Burton, Weinstein 

learned from Hoover that Avila was “known to be a straw” as of November 24, 

2009, and that Burke had therefore provided inaccurate information. Yet, 

Weinstein told the OIG that Burke’s provision of inaccurate information did not 

diminish his confidence in Burke’s assurances that Sen. Grassley’s allegations 

were wrong. Weinstein stated that he would not have expected Burke to know 

“the details of even a purchase of significance like that,” but would have 

expected Burke to know whether his prosecutors “were trying to get guns or 

not trying to get guns.” We believe this was a mistake on Weinstein’s part, and 

that Burke’s provision of inaccurate information about an issue Weinstein 

viewed as critical should have caused Weinstein to ask more probing questions 

about Burke’s other representations regarding the conduct of Operation Fast 

and Furious. 

Weinstein also told the OIG that he relied on and had confidence in 

Hoover’s assurances that the allegations in Sen. Grassley’s letter were wrong. 

Yet, rather than rely on Hoover’s statement to Burton and him in their 

February 1 conversation that ATF knew Avila was a straw purchaser as of 

November 24, 2009, Weinstein interpreted this statement for Burton in a way 

that conflicted with what Hoover had told them earlier. 

 

325 We found that Breuer had no direct involvement in drafting, editing, or approving 

the Department’s inaccurate February 4 letter to Sen. Grassley. Breuer was in Mexico from 

February 1 through 3, and during this period received updates from Weinstein about Sen. 

Grassley’s January 2011 letters and how Department officials intended to respond to the 

allegations contained in the letters. Breuer received at least two versions of the draft response 

while in Mexico, which he forwarded to his personal e-mail account, but told us that it was 

“highly unlikely” that he reviewed them or any other version of the letter until after the final 

draft was sent on February 4. The OIG found no e-mail messages from Breuer in which he 

proposed edits, commented on the drafts, or otherwise indicated that he had read them.
463 

Specifically, following the February 1 conversation with Hoover and 

Burton, Weinstein met with just Burton to help her “interpret” what had been 

discussed with Hoover. According to Burton’s notes of this second 

conversation, Weinstein told Burton that what Hoover had meant by his 

statement was that Avila “later became a [defendant] but wasn’t known to be a 

sp [straw purchaser] at the time of the purchase.” Weinstein told us that he 

understood Hoover to mean in the earlier conversation that Avila was only a 

suspected straw purchaser, and that he could not yet be proved to be a straw 

purchaser, at the time of the purchase. When we showed Hoover a copy of 

Burton’s notes from her meeting with Weinstein, he told the OIG that this 

version of the statement was not accurate and could not be reconciled with 

what he had said (as recorded by Burton in her notes). We determined that 

Weinstein’s interpretation of what Hoover said about Avila’s status at the time 

of the purchase in January 2010 conflicted with Hoover’s original statement. 

We found that Weinstein stated the information about Avila in a similar 

way in a February 16 e-mail to Grindler, who was seeking information for 

Attorney General Holder about “whether a gun sold in the operation was used 

in the shooting [of Agent Terry].” Weinstein wrote to Grindler, in relevant part: 

Two of the guns sold during the investigation were found near the 

scene of the shooting of Agent Terry. These guns had been 

purchased about 11 months earlier, by a person later determined 

to be part of the trafficking ring. ATF was not notified of the sales 

until after they had been completed. 

Similar to his interpretation of Hoover’s statement to Burton, Weinstein’s email suggested that Avila was not even a suspect when he purchased these 

guns. 

Weinstein described his role in the drafting process as helping to collect 

information and draft the Department’s response. However, it appeared to the 

OIG that Weinstein’s participation went beyond this description. E-mail 

records and the testimony of witnesses we interviewed showed Weinstein to be 

a staunch supporter of ATF and its law enforcement mission, and that he 

described himself as such. We believe that in his zeal to protect ATF’s 

interests, Weinstein lost perspective and provided Burton – and later Grindler – 

with distorted information about ATF’s view of Avila’s status as a straw 

purchaser. Thus, in helping to draft the Department’s response to the very 

serious allegations leveled at ATF, we believe Weinstein failed to act in the best 

interests of the Department by advocating for ATF rather than responsibly 

gathering information about its activities. 

We also found that the information Melson provided to the Department 

about Avila was inaccurate and conflicted with Hoover’s statement to Burton 

and Weinstein. According to notes taken by Smith, Melson told Smith on 

January 28 that “Agents assured me that we [did not] know the guy was a 
464 

straw purchaser at time of purchase.” According to both Smith and Melson, 

the “guy” was a reference to Avila. 

A third way in which Department officials failed to develop an adequate 

understanding of the facts at issue in Sen. Grassley’s letters was their failure to 

review basic materials about Operation Fast and Furious and other ATF 

investigative activities prior to responding to the allegations in Sen. Grassley’s 

letters. Department officials were informed in Sen. Grassley’s January 27 

letter that the allegations his office received “were accompanied by detailed 

documentation which appears to lend credibility to the claims and partially 

corroborates them.” Yet we found no indication that these officials sought to 

obtain and review materials on which the allegations may have been based. 

Under the circumstances – the serious nature of the allegations, the fact 

that Sen. Grassley wrote that they were supported by documentation, and the 

demonstrably inaccurate information provided by Burke – we believe that the 

Department officials who drafted the response should have reviewed materials 

from the Operation Fast and Furious investigation before responding to Sen. 

Grassley. It would not have been necessary to depend on Sen. Grassley for 

access to this information, which as was learned later, came from ATF’s and 

the U.S. Attorney’s Office’s own files, e-mails, and databases. 

Further, we do not believe Department officials needed to conduct an 

exhaustive review of the entire investigative file to understand the allegations 

before responding to them. Rather, officials with responsibility for drafting and 

approving the response could have reviewed basic materials about the 

investigation, such as briefing papers, summaries, and other documents that 

would have familiarized them with the scale of the investigation and the 

investigative techniques being employed.326

It is of course impossible to know whether a review of these materials 

would have resulted in a more accurate response. But our review of how the 

February 4 response was drafted suggests that the lack of familiarity with the 

investigation played a role in the ill-conceived wording of the response. For 

example, Smith made important edits to the response that resulted in a clumsy 

and only marginally responsive denial that ATF “knowingly allowed the sale of 

assault weapons to a straw purchaser who then transported them into Mexico” 

– a denial that did not address the issue of whether ATF knowingly allowed 

straw purchasers to buy weapons at all. Smith told us that when he was 

making edits to the response he was unaware that weapons purchased in the 

 

326 Smith, Burton, and Weich first received the Operation Fast and Furious indictment 

on the morning of February 4.
465 

investigation were being recovered in the United States as well as in Mexico, 

and that Agent Terry had been killed in the United States.327

A fourth critical deficiency in the Department’s knowledge of relevant 

information resulted from the failure by Breuer and Weinstein to draw a 

connection between the allegations in Sen. Grassley’s letters and their 

knowledge of Operation Wide Receiver, an investigation in which ATF employed 

similarly flawed tactics. At the Department, Weinstein, Breuer, and a few other 

Criminal Division attorneys knew about Operation Wide Receiver. However, 

unlike these other officials, Weinstein knew about Operation Fast and Furious 

from his discussions with McMahon in April and May 2010 and his review and 

authorization of three wiretap applications in connection with that 

investigation, and was directly and substantially involved in drafting the 

Department’s February 4 response. 

Breuer testified to Congress on November 1, 2011, that he made a 

mistake by not telling senior Department leadership about the problems with 

Operation Wide Receiver when he learned of them in April 2010, and for failing 

to draw a connection between those problems and the allegations concerning 

the conduct of Operation Fast and Furious in January and February 2011. We 

agree with this assessment. 

Weinstein, by contrast, told the OIG that Operation Wide Receiver “had 

not come to mind as being possibly relevant to this response” because he 

believed Sen. Grassley’s allegations were limited to Operation Fast and 

Furious. He said that he did not make a relevancy calculation about Operation 

Wide Receiver at the time, but in any event did not believe it was relevant to the 

allegations raised by Sen. Grassley. He stated that if he had thought about 

Operation Wide Receiver, he would have “invited people to . . . make their own 

judgment” about its relevancy to the allegations, but that he did not think 

about it. 

Weinstein also stated that he considered Operation Wide Receiver to be 

an “aberration” that happened under a different “regime” – meaning a different 

U.S. Attorney, and a different Director and Deputy Director of ATF. He stated 

that it was only when he subsequently learned that similar tactics had been 

employed “on our watch” that he believed Congress should be told about 

Operation Wide Receiver. 

 

327 Smith stated that he did not recall these facts as he was helping to draft the letter, 

even though about six weeks earlier on December 17, 2010, he had sent an e-mail message to 

then-Acting Deputy Attorney General Grindler that included these facts.
466 

We were not persuaded by Weinstein’s assertion that Operation Wide 

Receiver was properly viewed as an “aberration” that had no relevance to the 

allegations. Operation Wide Receiver and Operation Fast and Furious (which 

Weinstein believed the allegations to concern) had many similarities. Both 

investigations had the same strategic goal – to follow guns up an organizational 

chain to build a large gun trafficking case. Both investigations involved many 

of the same issues and tactics, including the use of physical and electronic 

surveillance; the use of cooperating FFLs; and the bulk purchase of weapons 

by suspected straw purchasers and the transportation of those weapons 

throughout the Southwest Border area and into Mexico. Additionally, both 

investigations were run out of the Phoenix Field Division under the same SAC, 

although Weinstein told the OIG that he was not aware until after the February 

4 letter was drafted that the same SAC oversaw both investigations. 

We similarly reject the notion that Operation Wide Receiver lacked 

relevance because it was carried out under different leadership at the U.S. 

Attorney’s Office and ATF Headquarters. As Weinstein knew from having been 

an AUSA for many years, while U.S. Attorneys and the ATF Director may 

change with administrations, the career line agents and prosecutors do not, 

thus ensuring institutional continuity and accountability. Dismissing the 

relevance of a similarly flawed investigation because it happened under another 

administration’s “watch” is not what we believe should be expected of a senior 

Department official. 

Finally, several Department officials told the OIG that knowledge of 

Operation Wide Receiver would have been relevant to the drafting of the 

response to Sen. Grassley. Breuer and Burton both made the point that the 

allegations in Sen. Grassley’s letter would have been viewed differently had it 

been known that ATF had conducted a similarly flawed operation before. 

Weich, who signed the February 4 letter on behalf of the Department, told the 

OIG that it was indisputable that the information about Operation Wide 

Receiver would have changed the way he would have approached the February 

4 letter. 

C. The Department’s Post-February 4 Statements to Congress 

The Department received several letters from Members of Congress after 

issuing its February 4 response. In responses to these subsequent inquiries 

about Operation Fast and Furious on March 2, March 8, April 4, and April 18, 

the Department declined to provide substantive comments about the 

investigation in light of its February referral of the matter to the OIG. However, 

in responding to an April 13 letter from Sen. Grassley to Attorney General 

Holder asking whether the Department stood by “the assertion . . . that the ATF 

whistleblower allegations are ‘false’ and specifically that ATF did not sanction 

or otherwise knowingly allow the sale of assault weapons to straw purchasers,” 

Weich, on behalf of the Department, wrote in a May 2 response: 
467 

You have asked whether it remains our view that “ATF did not 

sanction or otherwise knowingly allow the sale of assault weapons 

to straw purchasers.” In fact, my letter, dated February 4, 2011 

said: “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.” 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 us 

documents, including internal ATF emails, which you believe 

support your allegation. As you know, we 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. While we await her findings, the Attorney 

General has made clear to prosecutors and agents working along 

the Southwest Border that the Department should never knowingly 

permit firearms to cross the border.

Department officials told us that this substantive response was 

motivated by two factors. First, officials stated that in his April 13 letter, Sen. 

Grassley had meaningfully changed the Department’s original response in its 

February 4 letter and that they wanted to correct the record on this point. 

Second, officials said that they wanted to respond to what they believed to be 

the crux of the allegation in Sen. Grassley’s January 27 letter: that ATF had 

knowingly allowed straw purchasers to take firearms into Mexico. 

The Department’s reformulated assertion that “ATF’s Operation Fast and 

Furious did not knowingly permit straw buyers to take guns into Mexico” 

differed from the February 4 statement in two fundamental respects. First, it 

did not address the portion of the statement in the February 4 letter denying 

that “ATF ‘sanctioned’ or otherwise knowingly allowed the sale of assault 

weapons to straw purchasers.” Second, the May 2 statement for the first time 

limited the Department’s denial of “gun walking” to Operation Fast and 

Furious. 

Deputy Attorney General Cole and other officials told the OIG that they 

disagreed with the suggestion that the May 2 letter was deliberately drafted to 

state a literal truth – that ATF had not knowingly allowed straw buyers (as 

distinguished from third parties) to take firearms into Mexico. Rather, the 

officials stated, they sought in the letter to distinguish between ATF knowingly

allowing firearms to go to Mexico versus negligently allowing firearms to go to 

Mexico. 

We believe that the Department should not have made this statement in 

its May 2 response to Sen. Grassley. Regardless of whether there was any 
468 

intent to draw a distinction between straw purchasers and third parties, senior 

Department officials knew or should have known by the time the letter was 

drafted that while ATF may not have allowed straw purchasers to buy firearms 

so that they themselves could take the guns to Mexico, ATF had in many 

instances allowed straw purchasers to buy firearms knowing that a third party 

would be transporting them to Mexico. The review of the Operation Fast and 

Furious case file that had been conducted to this point by Department officials, 

including the Title III affidavits, indicated that suspects were buying guns for 

the purpose of getting them into Mexico. Moreover, ATF was aware from later 

seizures that some of those firearms did in fact end up in Mexico. Thus, the 

May 2 letter was true only in the most literal sense, even if it was not intended 

to be read that way. 

The Department also limited its narrowly drawn denial to Operation Fast 

and Furious, something it did not do when it used similar wording in its 

February 4 denial. According to an e-mail from Burton to Weich about this 

limitation, officials had not yet “checked all other ATF operations,” and thus 

would have been uncertain whether the Department could make the same 

denial as to other ATF investigations covered under the allegations in Sen. 

Grassley’s letters and its February 4 response. Under these circumstances, we 

believe the Department should not have resorted to a narrowly worded denial of 

such a serious allegation, particularly when officials in the Office of the Deputy 

Attorney General knew or should have known by that date that they could not 

reaffirm the accuracy of the entire February 4 letter. 

Lastly, after reviewing a draft of this report, Department officials told the 

OIG that from late February through at least May 2 they continued to receive 

assurances from component officials, including senior component officials, that 

ATF had not knowingly allowed firearms to cross into Mexico. They indicated 

that sometimes these assurances took the form of statements that ATF had not 

let guns “walk” and had not “watched” or “observed” firearms enter Mexico. 

These officials said that assurances were also provided in the form of 

descriptions from the components about how Operation Fast and Furious had 

been conducted. We noted, however, that during this same period, based on 

what they were learning about Operation Fast and Furious and other ATF 

firearms investigations, senior Department officials, including Cole and Weich, 

began having doubts about some of the statements in the February 4 letter – 

statements that had been based on the assurances of these same senior 

component officials. We therefore question the significance or relevance of 

these ongoing assurances to the increasingly skeptical Department officials 

who issued the May 2 letter. 

We believe that to Congress and the public, the Department’s May 2 

letter reasonably could be understood as at least a partial reaffirmation of the 

February 4 letter at a time when Department officials knew or should have 

known that the February 4 letter contained inaccurate information. We believe 
469 

that the better practice would have been to continue to refrain from making 

substantive statements about both the February 4 letter and the investigation, 

like the four prior letters to Congress, or to state that there were significant 

concerns about the accuracy of the February 4 letter and that Department 

officials would not respond to further inquiries about Operation Fast and 

Furious until they determined the actual facts. 

Similarly, during his testimony to Congress on June 15, AAG Weich 

appeared at times to be defending portions of the February 4 letter, while at 

other times to be distancing the Department from it. For example, with regard 

to the letter’s statement that ATF did not allow the sale of firearms “to a straw 

purchaser who then transported them into Mexico,” he testified that “[t]hose 

particular statements remain true for the technical reason that the . . . straw 

purchasers don't take guns to Mexico. And in any event, ATF doesn't sanction 

or approve of the transfer of weapons to Mexico.” However, in response to 

another Member’s questions, Weich stated that “we're not clinging to the 

statements in those letters.” While we recognize that Weich, as AAG for 

Legislative Affairs, was not in a position to provide informed responses to the 

substantive questions that were being asked about the details of Operation 

Fast and Furious, we believe that Weich’s testimony sent a confusing message 

to Congress and the public about whether the Department’s leadership was 

embracing in full the February 4 and May 2 responses as accurate. 

On behalf of the Department, Deputy Attorney General Cole ultimately 

withdrew the February 4 letter on December 2, 2011. The December 2 letter 

correctly stated that the February 4 letter included “inaccuracies” that resulted 

from reliance on information provided by senior officials at ATF and the U.S. 

Attorney’s Office. For the reasons discussed above, we concluded that the 

Department officials who included this inaccurate information in the February 

4 letter share responsibility with these component officials for issuing an 

inaccurate letter to Congress. 

D. Deputy Attorney General Cole’s January 26, 2012, 

Memorandum 

The Department recently clarified how its components are to handle 

congressional requests for information. In a memorandum dated January 26, 

2012, DAG Cole instructed the components to assign an appropriate senior 

manager to assume responsibility for submitting or reviewing draft responses 

to ensure that all appropriate units and sections have provided the necessary 

information and that all relevant questions or concerns are answered. The 

memorandum states that the senior manager is responsible for ensuring that 

the response is thoroughly fact checked and vetted before it is shared outside 

the component. The memorandum also requires senior managers to solicit 

information directly from employees with detailed personal knowledge of the 

subject matter at issue.
470 

The memorandum states that even if the employees with the most 

relevant information may have already made disclosures protected by the 

Whistleblower Protection Act, the Act does not prohibit seeking relevant 

information from them as long as it is clear that the questioning is to learn the 

relevant facts in order to respond accurately to a congressional inquiry. The 

memorandum also states that if the congressional inquiry relates to the actions 

of certain individuals, those individuals should not participate in questioning 

the employees who are believed to have made protected disclosures. The 

memorandum instructs that if any employees express concern about 

retaliation, they should be advised to contact the Office of Special Counsel. 

The memorandum stresses that although the Department strives to 

respond to Congress promptly and meet requested deadlines, the Department’s 

top priority is to ensure the accuracy and completeness of the information it 

ultimately provides.

We believe that the January 26 memorandum appropriately emphasizes 

the importance of providing accurate responses to Congress, and outlines 

procedures within the components that, if adhered to, should help achieve this 

objective. We also believe the Department’s memorandum appropriately 

highlights the importance of complying with the Whistleblower Protection Act 

when seeking information to respond to congressional inquiries. In that 

regard, we believe the Department needs to ensure that all employees who have 

contact with whistleblowers for this purpose understand the requirements of 

the Whistleblower Protection Act. 

As we noted in Chapter Six, the Department reasonably should be able to 

rely on its components to provide accurate information in preparing responses 

to Congressional inquiries. At the same time, we believe that the inaccuracies 

in the Department’s February 4 response to Congress resulted from 

deficiencies at senior levels in the Department as well as within the 

components. The Department officials who drafted the response readily 

accepted the assurances of component officials whose conduct was the subject 

of the very serious allegations in Sen. Grassley’s letters. These assurances 

were accepted even in the face of inaccurate and inconsistent information from 

component officials. 

The responsibility for the accuracy of the representations contained in 

letters from the Department ultimately rests with Department leadership, and 

cannot be delegated to component officials even though these officials may 

have more familiarity with the subject matter. Accordingly, in addition to the 

proscriptions in DAG Cole’s memorandum, we believe that Department 

leadership must also carefully review the information it receives from the 

components for consistency and completeness, and should not hesitate to 

press component officials for additional information, including supporting 

documentation, when necessary to ensure accurate responses to Congress. 
471 

III. Conclusion 

Our review of Operation Fast and Furious and related matters revealed a 

series of misguided strategies, tactics, errors in judgment, and management 

failures that permeated ATF Headquarters and the Phoenix Field Division, as 

well as the U.S. Attorney’s Office for the District of Arizona. In this report, we 

described deficiencies in two operations conducted in ATF’s Phoenix Field 

Division between 2006 and 2010 – Operation Wide Receiver and Operation Fast 

and Furious. In the course of our review we identified individuals ranging from 

line agents and prosecutors in Phoenix and Tucson to senior ATF officials in 

Washington, D.C., who bore a share of responsibility for ATF’s knowing failure 

in both these operations to interdict firearms illegally destined for Mexico, and 

for doing so without adequately taking into account the danger to public safety 

that flowed from this risky strategy. We also found failures by Department 

officials related to these matters, including failing to respond accurately to a 

Congressional inquiry about them. 

Based on our findings, we made six recommendations designed to 

increase the Department’s involvement in and oversight of ATF operations, 

improve coordination among the Department’s law enforcement components, 

and enhance the Department’s wiretap application review and authorization 

process. The OIG intends to closely monitor the Department’s progress in 

implementing these recommendations. 

Finally, we recommend that the Department review the conduct and 

performance of the Department personnel as described in this report and 

determine whether discipline or other administrative action with regard to each 

of them is appropriate.
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TABLE OF APPENDICES 

Department’s Response ............................................................................ A-1 

Senator Grassley’s January 27, 2011, Letter ............................................ B-1 

Senator Grassley’s January 31, 2011, Letter ............................................ C-1 

February 4, 2011, Letter to Senator Grassley ........................................... D-1 

May 2, 2011, Letter to Senator Grassley ................................................... E-1 

December 2, 2011, Letter to Chairman Issa and Senator Grassley ............ F-1 
APPENDIX A 
A - 1
A - 2
A - 3
A - 4
A - 5
A - 6
A - 7
A - 8
A - 9
APPENDIX B 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

B - 1
 

 

 

 

 

 

 

 

 

 

 

 

B - 2
APPENDIX C 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

C - 1
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

C - 2
APPENDIX D 
D - 1
D - 2
APPENDIX E 
E - 1
E - 2
APPENDIX F 
F - 1
 

F - 2
F - 3
 	

F - 4