UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF ARIZONA 

 _________________ 

United States of America, ) 

 ) 

 Plaintiff, ) 2:17-cr-1690-GMS-1 

 ) 

 vs. ) Phoenix, Arizona 

 ) February 11, 2019 

Ryan Patrick Michell, ) 3:50 p.m. 

 ) 

 Defendant. ) 

______________________________) 

 

BEFORE: THE HONORABLE G. MURRAY SNOW, CHIEF JUDGE 

REPORTER'S TRANSCRIPT OF PROCEEDINGS

SENTENCING

APPEARANCES: 

For the Government: 

 U.S. Attorney's Office 

 By: KRISTEN BROOK, ESQ. 

 40 North Central Avenue, Suite 1200 

 Phoenix, AZ 85004 

For the Defendant Ryan Patrick Michell: 

 Law Office of Mark Francis Willimann 

 By: MARK FRANCIS WILLIMANN, ESQ. 

 PO Box 40355 

 Tucson, AZ 85717 

Official Court Reporter: 

Charlotte A. Powers, RMR, FCRR, CCR, CSR, CMRS 

Sandra Day O'Connor U.S. Courthouse, Suite 312 

401 West Washington Street, Spc. 40 

Phoenix, Arizona 85003-2151 

(602) 322-7250 

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared by Computer-Aided Transcription

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 1 of 38
 2

UNITED STATES DISTRICT COURT

INDEX OF WITNESSES 

WITNESSES FOR THE Direct Cross Redirect 

GOVERNMENT: 

DAVID BYRD 4 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 2 of 38
 3

UNITED STATES DISTRICT COURT

P R O C E E D I N G S 

(Proceedings resume at 3:50 p.m.) 

MR. WILLIMANN: Your Honor, may we approach?

COURTROOM DEPUTY: This is CR17-1690, United States of

America versus Ryan Patrick Michell, on for sentencing.

MS. BROOK: Good afternoon, Your Honor.

Kristen Brook on behalf of the United States.

MR. WILLIMANN: And good afternoon, Your Honor. 

Good afternoon, Ms. Brook.

Mark Willimann with Mr. Ryan Michell, who is here,

Your Honor, in custody.

May we approach the podium, sir?

THE COURT: Well, one moment, Mr. Willimann. Thanks.

MR. WILLIMANN: Sure, Judge.

THE COURT: Please be seated. 

I'm informed that the government has a witness they

want to call?

MS. BROOK: Yes, Your Honor, very brief, about a dozen

questions for the witness.

THE COURT: Mr. Willimann?

MR. WILLIMANN: I object, Your Honor.

THE COURT: On what basis?

MR. WILLIMANN: What the government is trying to do is

based on my objection --

THE COURT: On what basis do you object?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 3 of 38
 4

UNITED STATES DISTRICT COURT

DAVID BYRD - DIRECT EXAMINATION

MR. WILLIMANN: It's not relevant.

THE COURT: Well, why don't we wait until we hear what

the questions are.

Can you clear out -- I'm sorry -- because it's the

witness box and...

Call your witness, please.

MS. BROOK: Thank you, Your Honor.

The government calls ATV Special Agent David Byrd.

COURTROOM DEPUTY: Please step right up here, sir.

(DAVID BYRD, Government witness, is sworn.) 

MS. BROOK: Your Honor, may I approach briefly just to

provide exhibits?

THE COURT: Yes.

MS. BROOK: And for the record, Your Honor, I'm

approaching with Exhibit Number 70, which, as it was during

trial, has been rendered and made safe.

DIRECT EXAMINATION 

BY MS. BROOK:

Q. Good afternoon.

A. Afternoon.

Q. For the purposes of the record, will you please introduce

yourself to the Court again.

A. My name is David Byrd, B-Y-R-D. I'm a Special Agent with

the ATF here in Phoenix.

Q. And sir, on September 26th of this year, did you testify in

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 4 of 38
 5

UNITED STATES DISTRICT COURT

DAVID BYRD - DIRECT EXAMINATION

this case at trial?

A. Yes, ma'am, I did.

MS. BROOK: And during that time, Your Honor, if I may

for the purposes of the record, the witness went through

extensively his training and experience just as it pertains

to --

THE COURT: You don't need to repeat it.

MS. BROOK: Okay.

BY MS. BROOK:

Q. So just one question for you as it relates to your training

and experience.

Do you have experience identifying and distinguishing

characteristics of a semiautomatic weapon, separate and apart

from other weapons?

A. Yes, ma'am, I do.

Q. Is that something you do routinely within your daily work

and activities with ATF?

A. Yes, ma'am.

Q. If I can direct your attention to Exhibit Number 70 there

behind you.

MS. BROOK: Your Honor, this exhibit has already been

admitted during trial in this case.

BY MS. BROOK:

Q. Do you recognize it?

A. I do.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 5 of 38
 6

UNITED STATES DISTRICT COURT

DAVID BYRD - DIRECT EXAMINATION

Q. What is it?

A. It's an SKS rifle.

Q. And --

A. The same one that I rendered my opinion on for this case.

Q. Okay. Did you do both a Nexus examination of it as well as

another opinion later about it, as well?

A. Yes, ma'am, I did. I test-fired and examined the weapon a

separate time.

THE COURT: Do you want to pull the microphone over in

front of you, Agent Byrd?

THE WITNESS: Yes, sir.

BY MS. BROOK:

Q. Is this the weapon that you originally came into contact

with when you went out to Nicholas Riddle's apartment during

the early stages of this investigation?

A. Yes, ma'am, it is.

Q. You have before you what's been marked and admitted as

Exhibit Number 43.

A. Yes, ma'am.

Q. Do you recognize that?

A. I do. This is a photograph that was taken of magazines and

some ammunition in Mr. Riddle's apartment.

Q. And was that the one time that you were there at that

apartment when you were examining Exhibit Number 70 the first

time and taking pictures of the magazines?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 6 of 38
 7

UNITED STATES DISTRICT COURT

DAVID BYRD - DIRECT EXAMINATION

A. Yes, ma'am.

Q. Are those magazines, do you see them up there with you?

A. Yes, ma'am. They're included with the exhibit in the box.

Q. So the magazines that are represented there in Exhibit

Number 43, are they the same as the ones that are in the box?

A. Yes, they appear to be.

Q. And what similarities do you see between the two?

A. The markings on them. They're both marked Taptoe U.S.A.

There's some markings on the bottom that would be codes from

them, and then the general appearance of them is the same as

what's been depicted in the picture and what's in the box.

Q. With those magazines, the ones depicted in that picture,

the ones contained in the box there, Exhibit 70, have you had

an opportunity to determine exactly how many rounds of

ammunition fit into each magazine?

A. Yes, ma'am. I took those property and I loaded them with

the proper caliber ammunition 7.62 by 39, and I determined that

each magazine would actually hold 21 rounds of ammunition.

Q. So how many magazines are there?

A. There are five.

Q. So each of the five magazines will contain or you could put

into them 21 separate rounds of ammunition?

A. Yes, ma'am.

Q. And did you have an opportunity to see whether or not the

magazines there in Exhibit 70 can be inserted into the firearm

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 7 of 38
 8

UNITED STATES DISTRICT COURT

DAVID BYRD - DIRECT EXAMINATION

that's in that exhibit with it?

A. Yes, ma'am, I did. I loaded each magazine with multiple

rounds of ammunition, inserted them into the weapon and

test-fired each round -- or each magazine numerous times, and

they all functioned in this weapon.

Q. You testified earlier during trial about some of the

specifics of that particular weapon. What type of weapon is

it?

A. This is a semiautomatic rifle.

Q. And you're talking about the weapon there in Exhibit 70?

A. Yes, ma'am.

Q. How do you know?

A. By its function, by its observation. There's a gas tube on

top which is used to expel the rounds. Semiautomatic weapons

are designed by nature for -- it uses the energy through

expending a round to cycle the bolt back, to inject the spent

cartridge, to load a new cartridge, and then with a separate

trigger pull, to fire another. They're also referred to as

auto-feeding weapons, or semiautomatic rifles.

Q. So to break it down a little more simply there, do you have

an opinion about whether or not Exhibit 70, that semiautomatic

weapon, has the ability to fire many rounds without reloading?

A. It does.

Q. Did you fire the weapon?

A. I did.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 8 of 38
 9

UNITED STATES DISTRICT COURT

DAVID BYRD - DIRECT EXAMINATION

Q. And how did it fire?

A. It functions as intended, as a semiautomatic rifle.

Q. When did you fire it?

A. I don't have my report. I believe it was last...

Q. And if I may just direct your attention to what's been

marked --

THE COURT: Can you let the witness answer the

question, please?

MS. BROOK: Sure.

THE WITNESS: Let me check.

I tested it on the 6th.

THE COURT: Of what?

THE WITNESS: Of this month. I'm sorry, Your Honor.

BY MS. BROOK:

Q. And you rendered a report?

A. Yes, I did.

Q. And as you mentioned a moment ago, just for clarity, when

you test-fired it, did it function normally as you would expect

a semiautomatic weapon to fire?

A. Yes, ma'am, it did.

Q. What does that mean exactly?

A. For each depression of the trigger that -- it functioned as

it would. So it cycled a round out -- or ejected a round,

cycled it through the action, loaded a fresh round from the

magazine, and then on the next trigger pull would fire that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 9 of 38
 10

UNITED STATES DISTRICT COURT

round. And then through firing that round, eject that round

and load another round from the magazine as it's intended.

Q. So without need for reloading?

A. Correct.

MS. BROOK: I don't have any other questions, Your

Honor.

THE COURT: Thank you.

Cross-examination?

MR. WILLIMANN: No, Your Honor.

THE COURT: You may step down.

THE WITNESS: All right. Thank you, Your Honor.

THE COURT: All right. You may now approach,

Mr. Willimann, with your client.

MR. WILLIMANN: Thank you, Your Honor.

THE COURT: Mr. Michell, good afternoon, sir.

THE DEFENDANT: Good afternoon, sir.

THE COURT: As you know, you were found guilty after a

jury trial on the two counts that you were charged with. After

you were found guilty at trial, the United States Probation

Department, which is its job, prepared this presentence

investigation report. What it does is it recounts identifying

data, data that would identify you; it tells me about the

charges and the convictions and what the offense conduct was.

Of course, I sat through trial, so I remember much of it.

It then assigns a number, and the number is called

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 10 of 38
 11

UNITED STATES DISTRICT COURT

your criminal offense level. What that number is designed to

represent is how serious your crime is with relation to other

federal crimes, and it does that by using a number between 1

and 43.

It then tells me about your criminal history so that

it can -- doubtless you've seen the grid whereby a recommended

sentence is done by taking the number of the seriousness of

your offense, criminal offense level, and coming over and

matching it in the column in which your criminal history is

found. So it gives me a summary of your criminal history.

And then tells me about your other criminal conduct

and arrests, tells me about your personal and family life, your

physical, mental, and emotional health, your substance abuse

history, and then provides me with sentencing options, what the

statute provides, and other matters.

As it pertains to you, you have a right to have all of

the information in the report be correct. That's why a copy of

the report was given early on to Mr. Willimann with the

expectation that he would review the report with you in its

entirety and give you a chance to make objections or to seek to

obtain corrections in the report.

Mr. Willimann has, in fact, filed some -- an objection

to the report on your behalf. I just want to make sure that he

has reviewed with you the report in its entirety and that the

objection he has filed represents the sum total of the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 11 of 38
 12

UNITED STATES DISTRICT COURT

objections by the defense.

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right.

So Mr. Willimann, I've read the briefing on this. Do

you wish to add anything to it?

MR. WILLIMANN: Yes, Your Honor.

What I believe that the government is trying to do,

metaphorically speaking, is they're trying to put luggage on

the train that has already left the station.

Your Honor, the best way, probably, to present this is

if we were to do a methamphetamines case, the government would

be, at trial, would be obligated to explain to the jury, to

have them find beyond a reasonable doubt whether or not the

methamphetamine was pure, how many grams were there, because it

can go from level 12 all the way to level 38, according to the

drug table under U.S.S.G 2D1.1(c) -- well, it's paragraphs 1

and paragraphs 15 --

THE COURT: Well --

MR. WILLIMANN: -- are the --

THE COURT: -- I don't want to prevent you,

Mr. Willimann --

MR. WILLIMANN: Sure, Judge.

THE COURT: -- from explaining your argument to your

client and to his family so they're sure that you're

representing them -- their loved one vigorously -- which you

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 12 of 38
 13

UNITED STATES DISTRICT COURT

certainly are.

MR. WILLIMANN: Thank you, Your Honor.

THE COURT: But aren't you -- aren't you actually

making an argument to me that has already been decided --

MR. WILLIMANN: No, sir, it hasn't.

THE COURT: -- and decided against you --

MR. WILLIMANN: No.

THE COURT: -- in terms of the argument that a Federal

Sentencing Guidelines are the same thing as a mandatory

sentencing statute under a state system?

MR. WILLIMANN: Your Honor, as the Court saw in

Alleyne and a couple of other cases, the bottom line is whether

or not a factual point as determined by the jury is something

that has to be --

THE COURT: Well, again, Mr. Willimann, in those

systems -- maybe I'm wrong -- in those systems, it was a

mandatory sentencing statute, was it not?

MR. WILLIMANN: Alleyne isn't. Alleyne is the

difference between 1326(b)(1),(b)(2) and whether or not those

were crimes of violence, Your Honor.

THE COURT: Right.

MR. WILLIMANN: So I took --

THE COURT: But that is a separate criminal case.

MR. WILLIMANN: But what I'm trying to say is that if

there were a drug case, wouldn't the government have to prove

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 13 of 38
 14

UNITED STATES DISTRICT COURT

purity of methamphetamines and the quantity of methamphetamines

for the Court to decide what level he falls under? And the

reason for that is because the government gave notice to that.

Here what they're trying to do now --

THE COURT: What you're talking about is the capacity

of the magazine; correct?

MR. WILLIMANN: Correct. Capacity of the magazines

are not in the indictment, nor did the jury find them to be

evidence.

THE COURT: All right. 

MR. WILLIMANN: So they're not part of the facts that

the jury would normally be determinative of. So what the

government is trying to do --

THE COURT: Let me just --

MR. WILLIMANN: -- my objection --

THE COURT: Let me just say if I may --

MR. WILLIMANN: Sure.

THE COURT: -- are you saying that if the jury in this

case did not determine that the magazine had a certain

capacity, I cannot use the fact that it did have that certain

capacity in calculating what the appropriate guideline range

is?

MR. WILLIMANN: That's exactly correct.

THE COURT: All right. 

MR. WILLIMANN: And the reason for that -- 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 14 of 38
 15

UNITED STATES DISTRICT COURT

THE COURT: The objection is overruled.

MR. WILLIMANN: That's fine. Thank you. But I was --

just to make sure that that is clear --

THE COURT: You have -- you have sufficiently

preserved it for appeal.

MR. WILLIMANN: Thank you, Your Honor.

Well, then I -- I appreciate the Court mentioning

that.

May I go forward with the sentencing portion, Your

Honor?

THE COURT: You may.

MR. WILLIMANN: Thank you.

Your Honor, it has been my distinct pleasure in

representing Mr. Michell. One of the things the Court can

consider is the nature in how Mr. Michell committed these

offenses. I want the Court -- and again, I consider you the

13th juror. You heard all the evidence, you sat there and you

paid attention, you were -- your rulings were right there. And

at this point, one of the things the Court realized is the two

different charges: One, the four cartridges, the four unspent

rounds from the .338 Lapua, were -- were strewn in a garage.

They came right from his car. There was no reason to believe

that -- he may have had a knowledge that they were there, but

really had no physical intent to break any law. It just was.

Second, the weapon that was at Ryan's brother,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 15 of 38
 16

UNITED STATES DISTRICT COURT

Mr. Kris Michell's, house, the brothers looked alike. We

understand the jury found him guilty. We're not going to

re-litigate again. But the -- the evidence was it was a brief

period of time that he held that. And again, he had no desire

to control it. All he just needed to do was transfer it for

the -- for the buyer. So in those limited purposes, I would

ask the Court to consider leniency.

Finally, Mr. Michell appreciates that whatever the

Court does here will be further exacerbated, if you will,

because he's got to deal with the matters in state court, as

well. The conviction in this court on Count 1 will -- I'm

sorry -- on Count 2 will be a violation of his probation in --

in the state court. So he's looking at a significant amount of

time -- could be looking at a significant amount of time in

state court.

I know the Court doesn't have to consider -- doesn't

have to -- to -- well, I guess what I'm trying to say is, you

can consider it and it doesn't have to be something that you --

is the be all and end all. But I ask the Court to consider it.

Finally, I ask you to consider the children that

Mr. Michell has. He is and was the caretaker of them. I know

the Court has gotten letters from both his mother and his

father about who he is. In this particular case --

THE COURT: Actually, I received a letter from his

brother today. Did you get a copy of that, Mr. Willimann?

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 16 of 38
 17

UNITED STATES DISTRICT COURT

MR. WILLIMANN: I did not, Your Honor. I knew it was

coming.

THE COURT: Do you want to see that, Ms. Brook? I

read it.

MS. BROOK: I can look at it while this proceeding

continues.

THE COURT: All right.

Did you -- do you have a copy of it then?

MS. BROOK: I don't.

THE COURT: Do you have a copy of it?

MR. WILLIMANN: I don't.

THE COURT: I will tell you that I read the mother's

letter. I read the father's letter. I found the brother's

letter more persuasive than either one of them, to the extent

that it -- that it's persuasive at all. To the extent that

they're asking me to re-litigate what the jury already

litigated, I'm not going to do that.

MR. WILLIMANN: Naturally.

THE COURT: But I do think the brother gives a more

measured assessment of who the defendant is, more realistic

assessment. So I found that helpful, and just advising you of

that, Ms. Brook, in case you want to take a look at it.

MR. WILLIMANN: Ultimately, Your Honor, under 3553,

the Court needs to consider a sentence least onerous as

possible. I ask the Court to consider who Mr. Michell is and

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 17 of 38
 18

UNITED STATES DISTRICT COURT

whether now that he has a -- he suffered the full effects of

what has happened to him, whether or not this Court believes

that Mr. Michell is going to repeat. And I'd -- I'd tell the

Court he's very smart, and there is no way that he's going to

put himself in this situation again, Your Honor. I'd ask you

to --

THE COURT: Smartness sometimes doesn't have much to

do with wisdom, Mr. Willimann.

MR. WILLIMANN: You're absolutely right, Your Honor.

But I also think that he has the intellectual capacity to -- to

choose between one course of conduct and another course of

conduct. And the way our interactions have been, he's never

going to put himself into this -- a position again.

Finally, the last thing I'm going to say to the Court,

the matter back in 1996, I think, had Mr. Michell appreciated

the fact that it was still on his record, he would have done

everything he could to get that set aside, at least set aside.

THE COURT: Well, and maybe so. But he certainly

appreciated that was on his record when he sold the firearm

here. And I'm not re-litigating it.

MR. WILLIMANN: No, no, no. I think the thing that he

knew was on his record when he sold the firearm, Your Honor,

was the 2003 violation date which was convicted of in 2017. So

I think that was the precipitant that made him a felony

offender --

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 18 of 38
 19

UNITED STATES DISTRICT COURT

THE COURT: Right.

MR. WILLIMANN: -- which is an ag DUI, Judge. It's

not a violent offense. It was just an ag DUI. I say "just ag

DUI." They're the bane of societal's existence. But I just

want you to realize it's not a particular heinous as far as

violence offenses are concerned.

THE COURT: All right.

MR. WILLIMANN: So I've got nothing more, Your Honor.

I do ask the Court to consider a time-served sentence as being

reasonable.

THE COURT: Mr. Michell, do you have anything you want

to say?

THE DEFENDANT: I do, sir.

THE COURT: Please.

THE DEFENDANT: I know it's been a long day, so I'll

try and be as brief as possible.

THE COURT: I'm ready to listen to whatever you have

to tell me.

THE DEFENDANT: First I'd like to thank you for your

professionalism throughout my proceedings and offering me a

fair trial as our great Constitution allows. So thank you for

that, sir.

It's obvious I do not agree with, perhaps, the

verdict, but I do respect and understand how the jury may have

gotten to that decision.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 19 of 38
 20

UNITED STATES DISTRICT COURT

Secondly, I would like to ask your consideration, sir,

respectfully for that of a probation or something equivalent,

as I believe I'd be a strong candidate to be successful on a

couple different bases.

Post-incarceration, sir, I have completed 32 weeks of

programming voluntarily at the CCA facility. I did provide my

attorney, Mr. Willimann, with 11 certificates I hoped you'd be

able to review.

Further, I am -- I have earned and worked hard on

obtaining a rare security clearance at the CCA which I am the

senior captain's crew member. I am one of four trustees for

the entire facility of a population of 5,000. My current risk

score is a negative 2 on a scale of zero to 5. I have had no

disciplinary issues whatsoever, and obviously no citations.

Post -- I'm sorry -- pre-incarceration, sir, and over

the last decade, I've been an entrepreneur in a couple

different ventures. But proudly enough, it's allowed me the

opportunity to hire and manage hundreds over that period of

time. Some came to take care of their families, others were

there to pay excess bills, some put themselves through college.

But I feel I had a positive impact on their lives in one sense

or another.

Further, I do have a history of charitable work

through the New Mexico Roadrunner Food Bank, both in

contributions and volunteer work. So through my establishment,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 20 of 38
 21

UNITED STATES DISTRICT COURT

I did year-round food drives, which I believe we affected the

lives of many in the community. And I'm saying this humbly,

sir, and not attempting to gloat, but just to make the point

that I am a productive member of society, that I do give back

to my community. And be unbeknownst to some, I am not a threat

to the community in general.

I believe I have some vital factors and assets that

I'm blessed with now that will help me be successful and

re-seed. They obviously include my supportive, unified, and

strong family, sir. I also have the ability to have

consistent, stable housing, consistent and stable employment

without the, I guess, reliance on -- on criminal enterprise.

And importantly enough too is I have a strong self-ambition to

be successful and support my daughters, which are preteens, and

they need me more than ever. And I might add that, you know,

being away from them has -- it's been tough on all of us, sir.

So...

In conclusion, I just hope you see -- I've prayed that

you see this for what it is and what it is not. And what it is

not is this situation never involved any malice or nefarious

intent. In fact, it was at best bad judgment and neglectful

mistakes.

I have long been my worst critic in the sense that

over the last 14 months, every day, I wake up and I ask myself

why I neglected to keep this debris in the corner of my garage.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 21 of 38
 22

UNITED STATES DISTRICT COURT

As you've seen the pictures, it was obviously no trophy worth

keeping. I should have -- I should have rid myself of it. And

further, you know, why I didn't take additional steps to steer

away from the meeting with Mr. Riddle and my brother so there

would be no confusion.

I guess what I'm getting at, sir, is I do respect the

law. And that is evident in my past, in my professional life

as well. Every day I dealt with law enforcement, I dealt with

regulations, I dealt with health codes, I dealt with ordinances

to keep the business going and -- and protect my customers.

All I'm really asking for is an opportunity to redeem

myself. And if you allow me this opportunity and that grace, I

will not disappoint you, the Court, my family, or myself.

That's all, sir. Thank you for your consideration.

THE COURT: Thank you.

Ms. Brook?

MS. BROOK: Thank you, Your Honor.

THE COURT: I will say that the part -- I'll just

have -- I'll just tell you what I would like you to address, if

you don't mind.

MS. BROOK: Yeah.

THE COURT: I think you're doing your job, the agents

are doing their job when they put this in the setting of the

original raid and why they raided in terms of the potassium

cyanide and everything else. But it doesn't seem to me that

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 22 of 38
 23

UNITED STATES DISTRICT COURT

there's sufficient enough evidence for me to assume in

sentencing that this defendant is a danger because of potassium

cyanide. I realize that there may well be a risk that he is,

but there isn't any proof that he is, and there isn't

sufficient proof for me to take that into account into

sentencing.

If I'm left with that, it does seem to me that at best

this defendant suffered from some unfortunate circumstances

that resulted in him being a prohibited possessor, which allows

him now to be charged and convicted of the crimes that he's

convicted of, with little evidence that he is a danger to

society. And in that sense, I think his brother -- I don't

accept what his brother said, and I think his brother

acknowledged that I wouldn't accept it, about reconsidering the

verdict in this matter. And I don't reconsider the verdict in

this matter. I heard the evidence. I was here. I think that

the jury arrived at a correct verdict, and one that deserves my

acknowledgment when I sentence somebody.

What I did think the brother said, which I'm inclined

to consider is, that absent some reason -- or sufficient reason

to believe that this defendant is a danger to society, what we

have here is a defendant who may be smart as a whip, but he's

pretty stupid in some things, and he made some very unwise

choices. And one of those was, despite what he said here, he

doesn't follow the law. I mean, I remember very well him

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 23 of 38
 24

UNITED STATES DISTRICT COURT

firing the .50 -- the film of him firing the .50 caliber. It

wasn't what he was charged with, but it was allowable under

404(b) and other matters. It just seems to me he's pretty

casual about his legal requirements under the law.

But it does seem to me that that's a little bit of a

different consideration than if he had a violent criminal

record. And I realize that his conviction when he was 17, or

whatever it was, was concerning. But he was 17.

So, I mean, my best take on it is what I've just told

you. So if you want to address that, I'd be glad to hear what

you have to say.

MS. BROOK: Thank you, Your Honor. If I may.

So defendant is well aware through the disclosure that

was provided in this case that the facts that underlie his

possession of potassium cyanide, or what he believed to be

potassium cyanide, as well as his attempted purchase of

dimethylmercury, is still under investigation.

Defendant is also aware that through the disclosure

that came out in this case, we know he has taken out insurance

policies on individuals that benefit him to the tune of 10

times the amount of the policy those individuals thought were

being taken out on them.

I say those things only because I want the Court to

understand that we do see him to be a danger. And those facts

are predicated not just on him purchasing chemical weapons,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 24 of 38
 25

UNITED STATES DISTRICT COURT

attempting to purchase dimethylmercury, but all the other facts

that I'm going to touch upon in a moment.

And I do want to start with, Your Honor, where this

case started, and that was over a month-long period where this

defendant on the dark web attempted to purchase chemicals that,

if you're going to use them legally, you can buy them legally

and you can buy them cheaper. And he tried to buy potassium

cyanide. His claimed use was goldsmithing, and it does have

some applications in that particular context. But he could not

at all, when questioned, articulate the means by which he would

use that potassium cyanide to goldsmith, and he said he's never

done it before.

Dimethylmercury, on the other hand, has no practical

applications in a non-lethal context. A drop of it kills

people. And that was the first thing that he tried to buy on

the dark web was the dimethylmercury.

So, Your Honor, the government is concerned about him.

But I want to talk about some of the other facts inside of his

house that are of grave concern.

We note through the presentation of testimony in this

case that it wasn't just one mistake where the defendant

contacted -- or Nicholas Riddle contacted the defendant to

purchase this SKS semiautomatic. We know through Exhibit

Number 45, which has been admitted, that it was a lengthy

exchange.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 25 of 38
 26

UNITED STATES DISTRICT COURT

THE COURT: Yes, I remember all that.

MS. BROOK: We also know that from the computer

evidence, and as was cited in the PSR, in particular in

paragraph number 10, that he has photographs on his phone and

other devices of other exchanges, times when he was setting up

sales of other weapons. So this isn't just an isolated

circumstance.

We also know that we had pictures of him, some of

which we presented to the jury, of him shooting other

semiautomatic rifles, weapons. The .50 caliber. And it wasn't

just once. Those were multiple different pictures. Defense

has them, we've talked about them, the PSR hits on them. 

So this wasn't a situation of one bad choice one bad

time. This defendant has been a felon for 20 years, and for 20

years has failed to conform his life and his lifestyle with the

confines of his legal predicament, which is that he can't

possess weapons.

When the agents went into his home on December 1st,

they also found a cornucopia of drugs. They found fentanyl,

they found OxyContin, they found methadone, they found

steroids, and that all mentioned as well in the PSR; the gas

masks, the credit card skimmers.

The defendant did talk about being around his

children. I understand that. And I understand that now

perhaps he's wanting to right his life, and I'm very pleased

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 26 of 38
 27

UNITED STATES DISTRICT COURT

that his family is here to support him in that. But I also

hope that everybody recognizes that this was not just one

mistake that the defendant committed. This is a lifestyle

choice. And he is smart. When he talks, he's smart. But he

has also been able to finagle his way around the system, and

the choices he's making are quite dangerous.

The government is concerned under the 3553 factors

that the sentence in this case reflect the seriousness of the

offense, but also, most importantly protect the community from

future offenses of this defendant.

He does have multiple other arrests that are not

encapsulated in convictions, but show a pattern of fighting and

contentiousness. Also, his ex-wife spoke about him being a

sovereign citizen and having that affiliation back in 2003,

2004. And the PSR talked about situations where he was

aggressive and fought, paragraphs 42, paragraphs 43, paragraphs

48.

Your Honor, would you like me to hit upon the

semiautomatic?

THE COURT: No. I mean, you can do what you want, but

you don't have to convince me that this was a semiautomatic

weapon.

MS. BROOK: Okay. 

So based upon --

THE COURT: Nor do you have to convince me that the

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 27 of 38
 28

UNITED STATES DISTRICT COURT

defendant sold it.

MS. BROOK: Yeah.

So based upon that particular argument, Your Honor,

the government is going to submit on the testimony here and the

filings before this Court.

Your Honor, this is a defendant who, in the flatbed of

his truck, had 50 to 60 spent casings. So within the range,

the range which is applicable to him, an offense level 20,

we're looking at 41 to 51 months. And the government is

requesting the 51 months because the offense in this case is

not just him on one occasion selling one weapon. He did also

lie about it, and he has not accepted responsibility for it,

which does present concern for the government in terms of his

reform and acceptance of his circumstance. But it's also a

pattern of behavior with him. And that pattern recognizes that

in the past he has not conformed his lifestyle to his reality.

He has flagrantly disavowed the Court and his legal situation

for his own convenience to make a buck. He wasn't working a

legitimate job. He was selling these weapons on the side, and

he was doing so for his brother.

And I just want to put into context -- or rather with

his brother.

And I want to put into context for a moment the letter

that was supplied from Kris Michell. Your Honor will remember

Exhibit Number 47, which was admitted during trial, which was a

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 28 of 38
 29

UNITED STATES DISTRICT COURT

text message exchange between Kris Riddle and the defendant,

where the defendant said to Kris in early November, hey, leave

my handgun out of the safe for me. I want to come by and get

it today.

THE COURT: I remember that.

MS. BROOK: So I just want -- obviously through

interviews, Kris Michell knows the defendant is a felon, and

that, too, is a felony.

So the government would just like everything to be put

in context in terms of the opinions that are being offered.

With that, Your Honor, the government believes that he

is a danger. We believe that it is imperative to protect the

community from him for the nature and circumstance of this

offense, to be fully recognized and understand that it was not

just a couple rounds of ammunition or one exchange. The

evidence in this case shows that he is a danger, that he has

flagrantly disavowed Court orders, he has engaged in that

pattern of behavior for decades, and that the sentence in this

case should be at the high end to reflect the seriousness of

the crime, to promote respect for the law.

Thank you, Your Honor.

THE COURT: Thank you.

Now, Mr. Michell, when I sentence somebody, I am

obliged to follow a sentencing statute. The sentencing statute

requires that I consider the nature and circumstances of your

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 29 of 38
 30

UNITED STATES DISTRICT COURT

offense, your history and characteristics. I then have to

examine and have your sentence reflect the seriousness of your

offense. I have to have it promote respect for the law and

provide a just punishment. I have to have it be sufficient to

deter you from engaging in further criminal conduct.

But you're not the only one I'm considering. I have

to have the sentence imposed to deter others from engaging in

criminal conduct.

I have to consider and promote the protection of the

public from further crimes that you might commit. I have to

consider the Federal Sentencing Guideline ranges. And as

Ms. Brook has pointed out in your case, that range recommends a

minimum of 41 months' incarceration, with a high-end

recommendation of -- let me see here --

MR. WILLIMANN: Fifty-one months, Your Honor.

THE COURT: -- fifty-one months, which the government

requests that I impose.

I have to consider whether or not you need medical or

rehabilitative care. I have to consider all of those things.

And I have to consider how I sentence other people who are

similarly situated than you.

Let me tell you how I balance all this out. The

Federal Sentencing Guideline ranges suggest a minimum of 41

months. But it has been true that when I've sentenced other

people for being prohibited possessors, I have been inclined in

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 30 of 38
 31

UNITED STATES DISTRICT COURT

some cases to depart downward because I think that the

sentences are not -- are quite high in those cases where the

defendant has not demonstrated what I would call a considerable

propensity for violence.

The government does point out that you have a

disorderly conduct misdemeanor arrest in the City of Tempe in

2016, and a criminal trespass arrest in the City of Tempe. I

just don't think that those really in and of themselves

demonstrate much of a propensity for violence. I do think that

they indicate that you have, in conjunction with your other

convictions, probably an alcohol substance abuse problem.

The government suggests that you're a danger to the

public. I cannot and do not discount that. But I do believe

that the government hasn't submitted enough evidence for me to

use it as a significant basis. Although I will consider it in

determining what I'm going to do with respect to the federal

guideline ranges, I'm not going to consider it a significant

basis on which to enhance your sentence as the government

requests. If, in fact, you're under an ongoing investigation,

then the government will have time to make whatever charges

it's going to make, and you ought to be smart enough to realize

you're being very closely monitored regardless.

It does seem to me that the evidence against you,

despite what your brother and mother and father say, is pretty

convincing; that you were engaging in the sale of firearms,

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 31 of 38
 32

UNITED STATES DISTRICT COURT

that you were using firearms in other circumstances. I can't

see any evidence that you were really using them for -- for

crimes of violence. You were selling them, you were target

shooting with them, you were doing other things that you're

prohibited from doing. And that in and of itself warrants at

least some sentence. And it seems to me that it warrants some

sentence that is augmented a little bit by the fact that I'm

just not sure that the public is safe. But on the other hand,

there is no demonstration that you're a significant risk.

So where does all that come out?

I think 41 months is more than is necessary for the

crimes for which you have been convicted on the facts for which

you have been convicted. But I think your -- I think you've

demonstrated a cavalier attitude with respect to the law that

has caused you to be in the position that you're in. And that

requires some significant punishment. And if, in the end, the

government can make a greater case, then they can bring those

charges. But I am only punishing you for the crimes -- or I am

only sentencing you for the crimes for which you have been

convicted and the reasonable inferences that can be made from

the evidence there.

In light of that, I am going to depart downward 11

months and give you a 30-month sentence. I recognize that

you've already served a significant part of that, but I would

like to see you if -- particularly if you have been -- you've

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 32 of 38
 33

UNITED STATES DISTRICT COURT

done as well as you've done, and if you can conform your life

to the requirements of your supervised release, which I am also

going to impose, I'd like to not have you be in prison any

longer than you have to be to get the message, and I'd like for

you to be able to come out and serve a productive life and be

with your family.

And it also seems to me that 30 months, to the extent

that you may be a danger to the public, is enough to send you a

message that you better reconsider your behavior.

So pursuant to the Sentencing Reform Act of 1984, it

is the judgment of the Court that Ryan Patrick Michell is

hereby committed to the Bureau of Prisons for an imprisonment

term of 30 months. This consists of 30 months on Count 1 and

30 months on Count 2, the terms to run concurrently.

The defendant shall pay a special assessment of $200.

The Court finds that the defendant does not have the

ability to pay, and orders that the fine be waived.

The defendant then shall pay a total of $200 in

criminal monetary penalties.

Having assessed the defendant's ability to pay, the

payment of the total criminal monetary penalties is due as

follows: The balance is due in equal monthly installments of

$25 over a period of eight months, to commence 60 days after

release from imprisonment.

During incarceration, payment of criminal monetary

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 33 of 38
 34

UNITED STATES DISTRICT COURT

penalties is due at a rate of not less than $25 per quarter.

And payment shall be made through the Bureau of Prisons Inmate

Financial Responsibility Program.

Criminal monetary payments shall be made to the Clerk

of the United States District Court, Attention: Finance, Suite

130, 401 West Washington Street, SPC1, Phoenix, Arizona,

85003-2118.

Payment should be credited to the various monetary

penalties imposed by the Court in the priority established

under 18 United States Code Section 3612(c).

The Court hereby waives the imposition of interest and

penalties on any unpaid balance.

Upon your release from imprisonment, you shall be

placed on supervised release for three years. This term

consists of 36 months on Count 1 and 36 months on Count 2, all

such terms to run concurrently.

While you are on supervised release, you shall comply

with the mandatory and standard conditions of supervision as

adopted by this Court in its General Order 17-18. Of

particular importance, you shall not commit another federal,

state, or local crime during the term of your supervision.

Within 72 hours of sentencing or release from the

custody of the Bureau of Prisons, you shall report in person to

the probation office in the district to which you were

released, if you are not deported.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 34 of 38
 35

UNITED STATES DISTRICT COURT

You shall comply with the following special

conditions: You must provide the probation officer with access

to any requested financial information, and authorize the

release of any financial information. The probation office may

share financial information with the United States Attorney's

Office.

You must cooperate in the collection of DNA as

directed by the probation officer.

You must submit your person, property, house,

residence, vehicle, papers, or office to a search conducted by

a probation officer. Failure to submit to a search may be

grounds of revocation of release.

You must warn any other occupants that the premises

may be subject to searches pursuant to this condition.

You must participate as instructed by the probation

officer in a program of substance abuse treatment, outpatient

and/or inpatient, which may include testing for substance

abuse. You must contribute to the cost of treatment in an

amount to be determined by the probation officer.

You must not use or possess alcohol or alcoholic

beverages.

You must submit to substance abuse testing.

You must not attempt to obstruct or tamper with the

testing methods.

You must contribute to the cost of testing in an

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 35 of 38
 36

UNITED STATES DISTRICT COURT

amount to be determined by the probation officer.

Your interest in the following property shall be

forfeited to the United States: Four rounds of Lapua .338

caliber ammunition.

Do you understand the sentence as I have imposed it

upon you, sir?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You have maintained the right to appeal

that sentence. And as you've maintained that right, you have

also maintained the right to apply for leave to appeal in forma

pauperis. If you do that, the Clerk of the Court will prepare

and file a Notice of Appeal on your behalf. But with few

exceptions, any such notice must be filed within 14 days of

today's judgment.

Do you understand that, sir?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Anything else on behalf of your client,

Mr. Willimann?

MR. WILLIMANN: Just one thing, Your Honor. I just

want the Court to clarify, what -- what should happen with the

Court's probation and post-convict -- post-detention should he

be detained in state court, subsequent to this Court's sentence

here?

THE COURT: That's up to the state court to determine.

I've imposed the federal sentence.

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 36 of 38
 37

UNITED STATES DISTRICT COURT

MR. WILLIMANN: I understand. But, Your Honor, the

three years' probation would start after, I guess, he's out of

state custody. Would that be a fair to say, Your Honor?

THE COURT: I am not going to make any pronouncements

on that because I'm going to wait and see what the state court

does. If you want to bring -- raise a matter for me for my

reconsideration --

MR. WILLIMANN: That would be great.

THE COURT: -- after the state court does what the

state court does, then you may do so.

MR. WILLIMANN: Thank you, Your Honor. Appreciate it.

May I be excused, Your Honor?

THE COURT: I'm sorry?

MR. WILLIMANN: May I be excused?

THE COURT: Yes.

MR. WILLIMANN: Thank you.

THE COURT: Anything else behalf of the government?

MS. BROOK: No, Your Honor.

Thank you.

THE COURT: Thank you.

(Proceedings in recess at 4:37 p.m.) 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 37 of 38
 38

UNITED STATES DISTRICT COURT

C E R T I F I C A T E

I, CHARLOTTE A. POWERS, do hereby certify that I am

duly appointed and qualified to act as Official Court Reporter

for the United States District Court for the District of

Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 9th day of July, 2019.

 s/Charlotte A. Powers 

 Charlotte A. Powers, RMR, FCRR 

 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:17-cr-01690-GMS Document 127 Filed 07/09/19 Page 38 of 38