The government began recording Loehr and Perry’s conversations on
er about April 24, 1997 and continued recording them for
approximately four years. Loehr seeks to suppress these
conversations on two grounds. First, Loehr seeks to exclude ail
conversations between April 24, 1997 and October 2, 1998 on the
grounds that the government lacked Perry’s consent to record them.
Second, Loehr desires to suppress all conversations on or after
October 2, 1998, on the grounds that Perry selectively recorded
these conversations, depriving Loehr of favorable evidence to
support his defense.

With respect to the conversations between April 24, 1997 and
October 2, 1998, Loehr makes a valid argument. Under 18 U.S.C.
§ 2511(2) (c), the government may conduct warrantless recordings of
conversations between individuals and government informants only
with the informant’s consent. Although the government has the
burden of proving an informer’s consent, the consent does not need
to be in writing. United States v. Craig, 573 F.2d 455,477 (7th
Cir. 1977). Rather, “it will normally suffice for the Government
to show that the informer went ahead with a call (or other recorded
activity) knowing what the law enforcement officials were about.”
United States v. Horton, 601 F.2d 319, 322 (7th Cir. 1979).

Here, the government tries to establish consent entirely
through two written consent forms signed by Perry. In the first

one, Perry granted the government the specific right to record any


Court could not take the government’s “word” that Perry consented
to the suppressed conversations, it similarly cannot take Loehr’s
“word” that the unrecorded conversations exonerated him as a matter
of law. Likewise, the absence of a criminal history hardly
precludes a rational fact finder from disagreeing with Loehr’s
contention that he lacked a predisposition to commit the alleged
crimes. Such matters are the epitomes of the “credibility
determinations” best reserved for the jury.

Lastly, the Court also denies Loehr’s motion to dismiss on the
grounds that Perry’s selective recording constituted a due process
violation, and a violation of the Federal Guidelines. Here, Loehr
makes the same due process and Federal Guideline arguments he made
in seeking to suppress the recorded conversations. For the same
reasons as stated herein, the Court finds these arguments without
merit.

CONCLUSION

For the foregoing reasons, Loehr’s Motzén to Suppress Recorded

Conversations is granted in part and/denied in p@rt. Loehr’s

Motion to Dismiss is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court


Seventh Circuit does not recognize selective recording, by itself,
as a due process violation. United States v. Andreas, 216 F.3d
645, 649 (7th Cir. 2000).

Loehr also seeks to suppress these later recordings on the
grounds that this selective recording violates the Government’s
Guidelines in dealing with confidential informants. Yet Loehr
cites no Guideline that prohibits selective recording.

Accordingly, the Court grants Loehr’s motion to suppress as to

y

all recordings taken between “on or about” April 24, 1997 and “on
or about” October 2, 1998. The Court denies Loehr’s motion to
suppress as to recordings taken “on or about” April 24, 1997, “on

or about” October 2, 1998, and following October 2, 1998.

III. MOTION TO DISMISS COUNTS 1-3 OF THE INDICTMENT

A proper indictment serves three functions. It states all
elements of the charged offense, informs defendants of the nature
of the charge, and enables defendants to plead double jeopardy as
a bar to repeated prosecution for the same offense. United States
v. Gironda, 758 F.2d 1201, 1209 (7th Cir. 1985). The indictment is
not tested on the strengths or weaknesses of the government’s case.
It is examined solely for its sufficiency in charging the offense.
United States v. Risk, 843 F. 2d 1059, 1061 (7th Cir. 1988).

Here, Loehr moves to dismiss Counts 1-3 of the indictment
against him based upon three grounds. First, Loehr argues that he

committed no criminal conduct because he served as an employee for


conversations with Loehr on a specific telephone “on or about”
April 24, 1997. In the second one, Perry granted the government
the broader right to record all conversations with Loehr or anyone
else on any telephone he used from “on or about” October 2, 1998
into perpetuity. Conversely, Perry never gave written consent to
record conversations taking place between April 24, 1997 and
October 2, 1998, and the government has submitted nothing to
establish such consent. Instead, the government instead simply
expects the Court to take its word that Perry consented - stating
without support that Perry “agreed” to the recordings.

Although the Seventh Circuit’s bar for establishing consent is
low, it is not nonexistent. Accordingly, the Court rules that the
government has failed to establish consent for the recording of
conversations between “on or about” April 24, 1997 and “on or
about” October 2, 1998. Should the government come forth with
evidence showing consent, be it from agents’ affidavits or
otherwise (Perry now being deceased and thus, unavailable for
testimony on the matter), the Court will be happy to entertain a
motion to reconsider the suppression of this evidence.

Loehr also challenges the admissibility of the post-October 2,
1998 recordings. Here, Loehr contends that the government
empowered Perry to pick and choose which conversations to ignore.
This, in Loher’s view, violated his due process rights under the

Fifth Amendment to the United States Constitution. However, the


such a right would be limited to the firearms R. J. Perry legally
imported. Therefore, in order to invalidate the indictment, Loehr
would need to show three things: (1) that R. J. Perry could
legally possess NFA firearms; (2) that he legitimately served as an
agent or employee of R. J. Perry; and (3) that the weapons
mentioned in the indictment were legally imported by R. J. Perry,
or otherwise permissible to be possessed by R. J. Perry.

Since Loehr has shown none of the above at this time, the
Court must permit the indictments to stand. This is because the
indictments properly allege criminal conduct, and in doing so meet
all of the Gironda requirements.

Similarly, the Court also declines to dismiss Loehr’s
indictment on the grounds of entrapment. As the Supreme Court has
ruled, “the question of entrapment is generally one for the jury,
rather than for the court.” Mathews v. United States, 485 U.S. 58
(1988). This is because entrapment defenses are often “intertwined
with the issue of intent and . . . often based on credibility
determinations, which are traditionally reserved for jury
resolution.” United States v. Theodosopoulos, 48 F.3d 1438, 1445
(7th Cir. 1995) (internal citations omitted).

Here, Loehr’s entrapment defense consists of his own
statements that unrecorded conversations between himself and Perry
contained exonerating evidence, and a notation that he lacks a

criminal history for weapons violations. However, just as the


Minute Order Form (0697)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Harry D. Leinenweber

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 03 CR 68 DATE 12/3/2003

CASE United States of America vs. James Loehr

TITLE

x (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintitt. and (b) state briedly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) im) Brief in support of motion due
(3) ao Answer brief to motion due . Reply to answer brief due__
(4) Oo Ruling/Hearing on____set for at _
(3) oO Status hearing[held/continued to] [set for/re-set for] on setfor_ at.
(6) im Pretrial conference[held/continued to] [set for/re-set for] on setfor at
(7) o Trial{set for/re-set for]on___at
(8) Oo [Bench/Jury trial] [Hearing] held/continuedto at
o

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) CLocal Rule 41.1. CFRCP4I(a)\(1) COFRCP4I(a\(2).

(10) =< [Other docket entry] . ENTER MEMORANDUM OPINION AND ORDER: Loehr’s Motion to
Suppress Recorded Conversations is granted in part and denied in part. Loehr’s Motion to Dismiss is
denied.

al [For further detail see order attached to the original minute order.]

Y | No notices required. advised in open court.

No notices required. vec of
number of notices

Notices mailed by judge's staff.

Notified counsel by telephone. Sebo

MAR, ig 2008§

Docketing to mail notices.

Mail AO 450 form. dockering depuby initials

Copy to judge/magistrate judge.

courtroom
deputy’s
initiais

WAP

Date/time received in
ntral Olerk’s Office

18 deputy inithis



a licensed firearm manufacturer, giving him the right to possess
machine guns, as well as possess guns with an obliterated serial
number. Second, Loehr argues that the government entrapped him,
because he lacked any predisposition to commit these crimes prior
to being induced by Perry. Third, Loehr argues that Perry’s
behavior violated his 5th Amendment rights and the government's own
guidelines, warranting dismissal of the charges.

Loehr first argues that he committed no criminal conduct
because he functioned as a corporate employee of R. J. Perry.
Loehr notes that R. J. Perry served as a federally licensed firearm
dealer and manufacturer. Since companies can function solely
through their agents and employees, Loehr contends that his
“employment” with R. J. Perry granted him a legal right to possess
machine guns. Loehr further contends that “it is the obligation of
the license holder . . . to register the firearms and to identify
the firearm by engraving or other means.” Therefore, in Loehr’s
view, R. J. Perry also bears legal responsibility for Loehr’s
possession of a gun with an obliterated serial number.

Loehr’s argument with respect to his possession of machine
guns lacks substantiation. Although R. J. Perry apparently did
possess a license to import NFA firearms (such as machine guns),
the record is unclear as to whether R. J. Perry conformed with the
regulations that would allow it to possess NFA firearms. Even if

it had a license to possess NFA firearms, the record suggests that


and Loehr. During this time period, Perry controlled the recording
of conversations with Loehr. This led, unfortunately, to some
conversations going unrecorded. Loehr argues that Perry decided
not to record “exonerating evidence” showing that Perry entrapped
him. The government disputes this, claiming that Perry only failed
to record unexpected conversations —- such as when Loehr visited his
house without advance warning, denying Perry the opportunity to put
on his recording device. Similarly, the government disputes that
the unrecorded conversations contained exculpatory evidence.

The government alleges that, in the fall of 1998, Loehr
requested that Perry and an undercover agent supply him with two
AR-15 lower receivers, and the conversion kits necessary to
transform them into fully automatic machine guns. The government
alleges that, although it only gave Loehr the supplies required to
perform two conversions, Loehr boasted to Perry that he was
currently performing twelve - having acquired the rest of his parts
elsewhere. On August 16, 1999, the government claims that Loehr
returned one of the AR-15 lower receivers, modified to function as
a fully automatic weapon, to Perry. The government further claims
that Loehr had further altered the weapon by removing the
receiver’s original serial number.

II. MOTION TO SUPPRESS
As part of its case against Loehr, the government seeks to

enter recorded conversations between Loehr and Perry into evidence.


owned corporation, R. J. Perry & Assoc., Inc. (“R. J. Perry”)
Between the years 1988-1995 and 1997-2002, R. J. Perry also paida
special occupational tax allowing it (and Perry as its agent) to
import firearms regulated by the National Firearms Act (the “NFA”),
such as machine guns. However, the record is unclear whether R. J.
Perry ever met the necessary, regulatory requirements to possess
and sell NFA firearms legally, or whether such a license would
extend to NFA firearms manufactured illegally.

Beginning in 1975, Perry had also periodically served as a
government informant on several cases. In 1996, he began working
with the FBI to investigate Loehr. On April 24, 1997, Perry signed
a consent form permitting the Federal Government to place a
listening device on his phone for purposes of recording an expected
conversation with Loehr. Despite the fact that Perry’s signed
consent form pertained only to conversations taking place “on or
about” April 24, 1997, the government continued to record
conversations between Loehr and Perry after that date. During this
time period, it is unclear whether the government’s recording
happened with or without Perry’s knowledge and acquiescence.

On October 2, 1998, Perry signed another consent form, this
time giving the government broad powers to record any of his
conversations with anyone, including Loehr, on any phone from that
date onward. On March 19, 1999, Perry consented to wearing a body

recorder to record conversations not on the phone between himself


FILED

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION DEC 3 2003
JUDGE HARRY D. Leeny
YD. LEINENWEBE!
UNITED STATES OF AMERICA, US. DISTRICT COURT JUDGE ©

Plaintiff,
Case No. 03 CR 68
Vv.
Hon. Harry D. Leinenweber
JAMES LOEHR,

Defendant. bey,

MEMORANDUM OPINION AND ORDER
Defendant James Loehr (hereinafter, “Loehr”) is charged with
four counts of firearms-related charges. Count One alleges that
Loehr possessed a firearm that was transported in interstate
commerce and that its manufacturer’s serial number had been removed
or altered, in violation of 18 U.S.C. § 922(k) and § 922{a) (1) (B).
Counts Two and Three allege that Loehr possessed a machine gun in
violation of 18 U.S.C. § 922(0) (1) and § 924{(a) (2). Count Four
alleges that Loehr possessed eleven destructive devices not
registered to him in the National Firearms Registration and
Transfer Record, in violation of 26 U.S.C. § 5861(d). Loehr now
comes before the Court with Motions to Suppress Certain Recorded
Conversations and Dismiss Counts One, Two, and Three of the
indictment.
I. STATEMENT OF FACTS
Robert Perry (hereinafter, “Perry”) was a Federally-licensed

dealer, importer, and manufacturer of firearms through his wholly-