UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA, Pl aintiff - Appellant,

v. ROBERT E. ADAMS,
De fendant - Appellee. No. 14-2138 (D.C. No. 1:13- CR-03301-JAP-1) (D. New Mexico)

__________________ _______________ ORDER AND JUDGMENT *

__________________ _______________ Before BRISCOE , Chief Judge, BALDOCK , and BACHARACH , Circuit Judges.

__________________ _______________ The government investigated Mr. Ro bert Adams base d on suspicion that he was smuggling gun s into the United States. See 18 U.S.C. §§ 545, 923 (2012). 1 To aid in the investigation, the government ob tained search warrants for Mr. Adams’ residential and business properties, permitting law enforcement to look for firearms, records, and other evidence of gun smuggling.

* This order and judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be ci ted for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).

1 The government also investigated Mr. Adam s for other possible offenses. But in this app eal, the government relies so lely on the allegations involving gun smuggling. FILED United States Court of Appeals Tenth Circuit 

### July 7, 2015
Elisabeth A. Shumaker Clerk of Court2 After conducting a hearing under Franks v. Delaware , 438 U.S. 154 (1978), the district court concluded that each warrant had been based in part on false statements recklessly included in the accompany ing affidavit. After excising these parts of the affidavit, the dist rict court (1) found there was no probable cause an d (2) granted Mr. Adams’ motion to s uppress the evidence found in the searches. The government appeals. In deciding this appe al, we must ask: Was there probable cause fo r the searches notwithstanding the absence of evidence of gun smugg ling in the last three years? Concluding that probable cause did no t exist, we affirm. I. Standard of Review We review de novo the district court’s legal conclusion that the affidavit did not establish probable cause. See United States v. GarciaZambrano , 530 F.3d 1249, 1254 (10th Cir. 2008) (“Whether a corrected affidavit supports a finding of probable cause is a qu estion of law that we review de novo.”). To determine whether probabl e cause existed, we consider whether the affidavit created a fair probabilit y that evidence listed in the warrant woul d be found in Mr. Adams’ residential or business properties. Illinois v. Gates , 462 U.S. 213, 238 (1983). II. Probable Cause In making this determination, we consider the information in the affidavit collectively rath er than in isolation. United States v. Traxler , 4773 F.3d 1243, 1247 (10th Cir. 2007). Th e information falls into four categories: 1. Mr. Adams’ storag e of guns in Canada, 2. his trips to Canada, 3. his failure to file tax returns, and 4. evidence discovered in regulatory inspections in 2006 and 2009. In considering these categories, we focus on whethe r the evidence would collectively create a fair prob ability that law enforcement would find guns or other indications of gun smuggling wh en searching Mr. Adams’ residential and business properties. A. Storage of Guns in Canada According to the affida vit, 132 of Mr. Adams’ guns were found in a Canadian storage unit. All had been purchased from a Canadian auction house and stored for roughly 10 months. 1. Mr. Adams’ Reasons for Storing the Guns In these circumstances, the governm ent argues that Mr. Adams was planning to smuggle some or all of th e 132 guns into the United States. For this argument, the government theorizes that Mr. Adams kept the guns in storage until he found a buyer and when he did, he would smuggle the guns into the United States or ship them directly to the buyer, circumventing U.S. taxes and regulations.4 The problem with that theory is that there is nothing in the affidavit to tie the storage of Canadian guns to a plan to smuggle them. For example, the affidavit does not prov ide any evidence that Mr. Adams

 was looking for a buyer while he was storing the guns in Canada or

 had plans to smuggle the guns or ship them to a buyer. In the absence of any such evidence, the court had no reason to infer an intent to smuggle guns from Mr. Adams’ decisi on to store his guns in Canada. 2. Mr. Adams’ Omission of 51 Guns on the Form 6A The government points out that Mr. Adams faile d to list 51 of the stored guns on an import form (“Form 6A”), t hough he had listed many of these guns on a reques t for an import perm it (“Form 6”). Bu t this fact does not create an inferenc e of gun smuggling. To bring guns into the United Stat es, an importer must obtain a permit by completing a Form 6. 27 C. F.R. § 478.112(b)( 1)-(2)(i) (2012). When the guns are ev entually brought in to the United Stat es, the importer must submit a Form 6A to obtain the firearms fr om customs. 27 C.F.R. § 478.112(c)(1) (2012). Thus , Mr. Adams would not ha ve needed to list the guns in the Form 6A until he actuall y imported them. Id. Mr. Adams included 51 guns on a Form 6 that he had not listed on a corresponding Form 6A. Th e government suggests that Mr. Adams omitted5 the firearms on th e Form 6A because he was planning to smuggle them. But this suggestion is circular: Unless one begins with the assumption that Mr. Adams is a gun smuggler, his omission of the 51 guns on the Form 6A could not supply ev idence that he was involved in gun smuggling. After all, why would Mr. Adam s alert U.S. authorities of plans to import guns that he actually planned to smuggle? The government answer s with a theo ry: Mr. Adams needed the Form 6s to buy th e guns in Canada. Appellant’s App., vol. IV, at 722; Appellant’s Opening Br. at 26-27 (Dec. 3, 2014); Or al Arg. at 7:37-7:57. But as the government con ceded in oral argument, there is nothing in the affidavit suggesting the need for a Fo rm 6 to buy guns in Canada. Oral Arg. 7:32-7:52. Thus, the affidavit does not s uggest anything sinister in Mr. Adams’ listing of the guns in the Form 6s and omissi on of th e guns in the Form 6As. 3. Mr. Adams’ Inclusion of 81 Guns on the Form 6A The affidavit also suggests a sinister motive for the 81 guns included on the Form 6A: The review [by a Canadian polic e officer] determined that all of the weapons listed on [the Fo rm 6A] that [Mr. Adams] had proposed to import into the United States we re accounted for in the [Canadian Police Department’s] seizure of weapons on July 27, 2012, that was [sic ] illegally stored in a Calgary, Alberta, Canada, storage Locker by [Mr. Adams]. [Mr. Adams] therefore falsified [Form 6A], as he neve r intended to import the dozens of firearms he secreted into his Canadian Storage locker.6 Appellant’s App., vol. I, at 73. This inference of “falsification” is legally invalid and illogical. The Form 6A is not submitted until th e importer begins the importation process. 27 C.F.R. § 478.112(c)(1) ( 2012). Thus, if Mr. Adams had inaccurat ely included th e guns on the Form 6A, he would not have falsely represented anyt hing to the gove rnment until he began the impor tation process. The affiant’s theory of “falsification” is no t only invalid under the regulations but also illogical. For roughly ten months, Mr. Adams stored the guns, listing some and omitting some. For the guns omitted on the Form 6A, the affiant infers from the omission that Mr. Adams never intended to lawfully import th e guns. For the guns included on the Form 6A, the affiant infers from the inclusion that Mr. Adams was fals ifying the form because he never intended to lawfully im port the guns. The government’s theory illustrates the adage: “Heads I win, tails I win.” 4. Probable Cause to Believ e the Evidence Would Be at Mr. Adams’ New Mexico Properties in 2013 But let’s assume that Mr. Adams wa s planning to smuggle all of the 132 guns from Canada in 2011. The search warrants were not to search the storage unit; they were to search Mr. Adams’ properties in Albuquerque, New Mexico. The cour t could issue the search warr ants only if there was a fair probability that Mr. Adams had guns, records, or other evidence of7 smuggling in th ose properties. United States v. Long , 774 F.3d 653, 658 (10th Cir. 2014), cert denied , __ U.S. __, 135 S. Ct. 2068 (2015). Even if Mr. Adams had intended to smuggle th e guns from Canada, nothing in the affidavit would have suggested the presence of smuggled guns, records, or other gun-smuggling eviden ce in Mr. Adams’ New Mexico properties in 2013 (when the warra nts were signed). See United States v. Snow , 919 F.2d 1458, 1459-60 (10th Cir. 1990) (“Probable cause to search cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched.”). 5. Summary In these circumstances, the discove ry of Mr. Adams’ guns in his Canadian storage unit would not have co ntributed to a finding of probable cause for a search of Mr. Adams’ New Mexico properties. B. Mr. Adams’ 2011 Trips to Canada The government also argu es that Mr. Adams’ 2009 and 2011 trips to Canada would have created probable cause of gun smuggling. We disagree. According to the affidavit, Mr. Ad ams made only two trips within three years of the warrants . Both trips were in 2011. Fo r one of these trips, Mr. Adams flew to and fr om Canada. It is unlikely that Mr. Adams could have smuggled gun s through an airport, an d the government has not suggested otherwise.8 For the other 2011 trip, Mr. Adams flew to Cana da but did not buy an airline ticket to return to the Un ited States. Based on the absence of a return ticket, the governm ent suggests that Mr. Adam s drove back into the United States to smuggle a firearm, a Gevarm .22 LR caliber rifle. Appellant’s Reply Br. at 16 (Mar. 12 , 2015). The government adds that if Mr. Adams smuggled one gun , the court could infer an intent to smuggle more guns later. Id . The government’s argument is waiv ed and based on contradictory information. In its opening brief, the government referred to the missing Gevarm firearm. But the governm ent did not argue that the court could infer a broader intent from the sm uggling of a single gun. See Appellant’s Opening Br. at 18-19, 27 (Dec. 3, 2014). Instead, the government waited to make this argument in the reply brief, which was too late. See United States v. Gregoire , 425 F.3d 872, 878 (10th Cir. 2005) (stating that an argument was waived when it had be en newly raised in the appellant’s reply brief). The government’s argument is not only waived but al so based on contradictory information. In one paragr aph, the affiant lists the Gevarm as one of the guns seized fr om the Canadian storage unit. But in the next paragraph, the affiant states the Geva rm was missing from the guns seized. Compare Appellant’s App., vol. I, at 73, with Appellant’s App., vol. I, at9 75. In light of the cont radiction, the co urt would have no way of knowing whether the gun ha d been seized. In these circumstances, the 2011 trips to Canada would not contribute to a finding of probable cause. C. Tax Evasion According to the affidavit, Mr. Ad ams failed to file federal income tax returns (2006 and 2008 -2011), state income tax returns (2010-2011), and federal firearm and ammunition exci se taxes (2006-2011 ). In addition, Mr. Adams’ companies (A dams International, SW LLC, Adams Guns, Bob Adams LLC, and Adams Trus t LLC) failed to file ta x returns between 2006 and 2011. The government ar gues that these acts of tax evasion support probable cause on a charge of gun smuggling. The threshold issue is whether the government waived reliance on the evidence of tax evasion. According to Mr. Adams, the government conceded in district court that th e evidence of ta x evasion had not supported a finding of pr obable cause. But Mr. Adams misinterprets the government’s concession. The government conceded only that it could not avoid suppression of the evidence based on probable cause regarding tax evasion. The government never questioned the ability to infer gun smuggling from Mr. Adams’ failure to file tax returns. Thus, the government has not wa ived reliance on the tax evidence.10 For the sake of argument , we can assume that th e failure to file tax returns could constitute ev idence that Mr. Adams wanted to conceal the amount or source of his income. With this assumption , we might also be able to infer that Mr. Adams had earn ed money unlawfully . But the search warrants were based on a specific t ype of law-breaking: gun smuggling. The tax evidence provides no reas on to tie Mr. Adam s’ income to a gun smuggling operation. D. Evidence Invo lving the Inspectio ns in 2006 and 2009 The government inspected Mr. Adam s’ business in 2006 and 2009. In connection with these inspectio ns, the affiant states that

● Mr. Adams failed to cooperate,

● impeded the inspections by tran sferring guns to his personal collection,

● furnished records with significant discrepancies, and

● violated federal regulations by advertising the sale of guns without importer’s marks. The government argues that this evidence supports probab le cause on a charge of gun smuggling. But this evidence predat es the signing of the warrants by over three years. When authoritie s investigate gun smugg ling, they would not reasonably expect the evidence to remain statio nary for years at a time. See United States v. Roach , 582 F.3d 1192, 1202 (10th Cir. 2009) (“[F]irearm . . . trafficking [is] not the sort[] of crime[] whos e evidence is likely to11 remain stationary for years at a tim e.”). Even if Mr. Adams had smuggled guns from 2006 to 2009 , the court could not r easonably have expected those guns to remain in Mr. Adams’ Albuquerque properties over three years later. Thus, the government con ceded that the evid ence was stale. Oral Arg. at 4:08-4:38. 2 Because that ev idence was stale, it would not contribute to a findin g of probable cause. See United States v. Cantu , 405 F.3d 1173, 1177 (10th Cir. 2005) (“A search warrant may not issue if based upon information that has grown stale.”). III. Summary Because the excised affi davit does not supply probable cause for a 2013 search of Mr. Adams’ New Mexico properties, we affirm the district court’s order granting the motion to suppress.

Entered for the Court

Robert E. Bacharach Circuit Judge

2 To overcome this conc ession, the government st ated in oral argument that the evidence had been “freshen ed” by the discovery that Mr. Adams (1) was storing 132 guns in a Canadian storage unit and (2) had taken recent trips to Canada. Or al Arg. at 4:49-5:28. In theory, otherwise stale information can be refreshed by more recent events. United States v. Cantu , 405 F.3d 1173, 1177-78 (10th Cir. 2005). But as discussed above, these two categories of information could not collectiv ely create a fair probability that law enfo rcement would find guns or other indications of gun smuggling when se arching Mr. Adams’ residential and business properties. Thus, the stale evidence was not “freshened ” by discovery of the storage unit and the Canadian trips.