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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
______________________________________________X UNITED STATES OF
AMERICA,
-against- 3:13 cr 00170(HBF)
RIVERVIEW SALES, INC. and DAVID LAGUERCIA Defendants.
______________________________________________X
SENTENCING MEMORANDUM ON BEHALF OF THE DEFENDANTS RIVERVIEW
SALES, INC., AND DAVID LAGUERCIA
ALTCHILER LLC Robert Y. Altchiler, Esq.
Attorney for the Defendants 111 Saugatuck Avenue Westport, CT
06880 (203) 222-3838 590 Madison Ave., 21st fl New York, NY 10022
(212) 541.242
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Introduction
David LaGuercia is a 57-year-old man who stands before this
court convicted of
two misdemeanors, both arising from his operating as a Federal
Firearms Licensee
(FFL). Riverview Sales, Inc. (Riverview), the co-defendant, is
Mr. LaGuercias
company, and stands convicted of a single misdemeanor, also
arising from Mr.
LaGuercias operating as an FFL. Neither Mr. LaGuercia, nor
Riverview, has previously
been convicted of any crime, whether related to any FFL, or
otherwise.
Two comprehensive and exhaustive Pre-Sentence Reports (PSRs)
have been
prepared by the United States Department of Probation
(Probation), one for Mr.
LaGuercia and one for Riverview. Based on the investigation
conducted by Probation,
and its analysis of the information contained in the PSRs, the
Probation Officers
Evaluation is that a short period of probation and a financial
penalty appear adequate to
address the conduct in the offense of conviction. (Riverview PSR
45). We agree and
respectfully request the Court impose a sentence reflecting that
evaluation.
As the two reports clearly reflect, the main thrust of this case
is Riverview and
Mr. LaGuercias failure to properly maintain accurate records
required by law. The case
also relates to the use of information or intelligence
(information provided by customers,
understanding of regulations, and corrective instructions
provided during earlier
inspections, etc.), operational security, staffing, and policies
and procedures for the
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operation of its business as an FFL, and as one of the highest
volume gun dealers in the
State of Connecticut. More specifically, as to sales volume, as
Mr. LaGuercia estimated,
Riverview sold roughly 6,000 guns annually (Riverview 32,
LaGuercia 71). (The exact
number for sales from January 1, 2010 through December 31, 2012
is closer to 17,542.)
The defendants have accepted responsibility for their failures
in these areas.
There is no doubt that the defendants failed to comply with a
number of the
statutory requirements that govern FFLs and important
recordkeeping obligations related
to regulating the firearms industry. The defendants were legally
responsible for
Riverviews compliance with laws and regulations and for the
non-ultra vires actions of
employees transacting business in the name of the FFL. Simply
put, the defendants failed,
and their violations bring them before this Court for sentencing
upon their convictions,
each having pled guilty. Mr. LaGuercia, who has led a
predominantly law-abiding life
asks the Court to understand that his transgressions arose from
the way he ran his
business, and that he never has and never would, nor has,
intentionally put someone at
risk.
The main import of the paperwork requirements of the Gun Control
Act is making
sure people who shouldnt possess guns dont possess them, and
that firearms may be
effectively and efficiently traced. Since becoming an FFL, Mr.
LaGuercia had never
failed in either pursuit. More specifically, Mr. LaGuercia has
never knowingly permitted
a firearm to be sold to a prohibited person and has never failed
to effectively assist any
request for a trace of a weapon. Importantly, the paperwork
failures have never impacted
the governments ability to quickly trace any weapon sold at
Riverview.
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The Guidelines
Pursuant to the Guidelines Riverview has a culpability score of
3 (Riverview PSR
39), placing it in Zone A, with a corresponding potential fine
range of $3,000 to $6,000.
Mr. LaGuercias total offense level is 4, with no prior criminal
history, which places him
in Zone A under the guidelines. (LaGuercia PSR 4). The
corresponding guideline range
is 0-6 months and a fine range of $250 to $5,000. Defendants
with Zone A sentencing
ranges of 0-6 months are eligible for straight probation,
probation with confinement
condition, or a fine as a sole sanction.
The PSRs
The PSR Addenda accurately reflect the defendants sentencing
objections with
one exception. The defendant requested the reports contain the
following:
In Riverview 26 and 27, the report address [sic] certain conduct
by fired Riverview former employee Kristopher DiBella who admitted
selling ammunition to a felon. DiBella was actually accused by that
felon and the felons wife of repeatedly selling firearms to the
wife of that felon for the felons possession and use, and
repeatedly giving the felon access to firearms at shooting ranges
in Connecticut. More specifically, the felons wife explained to
federal agents that on Fathers Day 2011, DiBella brought firearms
to a Connecticut shooting range and allowed the felon to use and
shoot a .45 caliber pistol, a 10 mm pistol, a bolt action rifle,
and a semi-automatic rifle DiBella said he had built. According to
the felons wife, this incident occurred well after DiBella had been
told her husband was a felon. The ATF acknowledged during the
revocation hearings that Mr. LaGuercia was not involved in any of
this activity involving the felon and his wife, but cited the sales
of ammunition as a grounds for revocation, based on the doctrine of
respondeat superior.
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Impact of the Case and Other Factors on the Defendants
Mr. LaGuercia and Riverview have already sustained what might
retrospectively
be viewed as a business Death Penalty in the form of the
revocation of the FFL, on
December 20, 2012, an action that arose from many factors, but
was indisputably in
response to the horrific events in Newtown, just days earlier,
as well as what appears to
have been an intentional effort to blame Mr. LaGuercia and
Riverview for what occurred
at Newtown.1 The revocation and the media strategy crippled Mr.
LaGuercia and
Riverview. As Probation explains in its evaluation, the media
attention both the store
and Mr. LaGuercia has received as a result of the
shootingappears unfair and has
played at least some role in the decline of sales. As a result
of no longer having the
Federal Firearms License the future of Riverview Sales, Inc. is
dim. (Riverview PSR
45).
Contrary to the repeated efforts to make the defendants a face
of the massacre,2
their conduct, Probations investigation, and the PSRs
demonstrate the unfair nature of
that propaganda, and the apparent business impact it has taken.
In concisely explaining
Probations findings, the LaGuercia PSR notes that the:
1 According to members of the legal team that represented Mr.
LaGuercia during
the revocation proceedings, including the revocation hearing and
the four months between the close of the hearing and the December
20 revocation, a full revocation had not been a part of the ongoing
negotiations, directed at resolving the administrative case.
Rather, according to participants, during the last conversation
about an appropriate sanction, a temporary, 90-day shutdown of
Riverview seemed to be acceptable to the government.
2 The governments effort succeeded, in that there are probably
as many photos of Riverview Sales in articles about the tragedy at
Newtown as there are of Sandy Hook Elementary School or Nancy or
Adam Lanza.
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evidence in this case reveals that Riverview Sales, Inc. was
lacking in regards to the specificity of the record keeping
necessary
for the industry, in which they are a part of. As the owner
and
operator of Riverview Sales. Inc, Mr. LaGuercia does and
should
receive the bulk of the blame for the violations which occurred.
Mr.
LaGuercia is the one who has to answer for one of his
employees
selling a firearm to a prohibited person and another incident
where a
firearm was stolen out of his store, in plain view of other
employees
and customers. In regard to the blame, shaming and media
attention
Mr. LaGuercia and Riverview Sales, Inc has received as a result
of
the shooting on December 14, 2012, the words and reports
seem
unjust.
(LaGuercia PSR 96).
The evaluation continues:
A broader view [of the relationship between Mr. LaGuercia
and
Riverview and the December 14, 2012 horrors] would reveal
individuals throughout the country who purchased firearms
from
respected gun stores and then went about their normal day. The
fact
that the shooter involved in the December 14, 2012, incident
was
provided weapons which were purchased at Riverview Sales,
Inc.
should not be a factor when considering the facts/evidence of
the
case against the store and Mr. LaGuercia.
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(LaGuercia PSR 96).
Regardless, the economic impact of the revocation and the media
are self-
evident, and unsurprising. In 2011, Riverviews sales were
approximately
$3,654,116.75. In 2012, the last sales year before the
revocation, the sales were
approximately $4,433,880.27. In 2013, the first year Riverview
operated after the
revocation and Newtown publicity, the sales were approximately
$1.483,031.12.
(See Exhibit A-Rough Profit and Loss Estimates 2011-2013). That
number
represents an approximate 66.5% decrease in sales.
The defendants have pled guilty and fully accepted
responsibility for their
actions. The defendants pled guilty because they are guilty.
This memo is
intended to assist the Court in its understanding of certain
aspects of the case and
reflected in the Riverview and LaGuercia PSRs. Nothing herein is
intended to
dilute the already expressed contrition and acknowledgement of
guilt reflected in
the PSRs. For some reason, the government does seem intent to
unfairly demonize
Mr. LaGuercia and Riverview, ignoring their cooperation and
highlighting non-
criminal conduct. This memorandum is largely directed at the
expected
continuation of that effort.
Pending Administrative Proceedings and the Search of
Riverview
Indeed, as it happened, it seems there was absolutely no need
whatsoever, either
for the warrant executed at Riverview December 20, nor for its
execution on that date. At
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the time, Riverview and Mr. LaGuercia, as FFL holders, were
obligated to provide the
paperwork eventually seized (no firearms were seized or sought
pursuant to the warrant-
only paperwork was seized) upon a simple request from the
ATF.
As of December 20, the administrative revocation proceeding was
still pending,
as it had been since the close of the hearings in early August,
2012. For the balance of
September, for all of October and November, and then for the
first two weeks of
December, the proceeding remained pending. The government cannot
dispute that if the
ATF had contacted Mr. LaGuercia on the morning of December 20,
and informed him
they needed particular records, whether 4473s, the A&D book,
or any other ATF-related
documents, Mr. LaGuercia would have been obligated to provide
them immediately,
upon demand.
In January, 2011, Riverview was subject to a compliance
inspection by ATF
Industry Operations Investigators. The inspection involved a
complete inventory at
Riverview and review of related documents. On June 8, 2011, the
Director of Industry
Operations, Boston Field Division issued a Notice of Revocation
of Federal Firearms
License, ATF Form 4500(5300.4) to David LaGuercia, dba Riverview
Sales. No
restrictions accompanied the Notice, nor did the Notice indicate
that the grounds for
revocation warranted any expedited process or special attention.
Riverview continued to
conduct its business as an FFL.
Over 13 months later, on July 25 and 27, 2012, with the FFL
still in tact and
Riverview still conducting its business, the Director of
Industry Operations, Boston Field
Division, issued a revised Notice of Revocation of Federal
Firearms License, which
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included allegations that then Riverview employee, Krystopher
DiBella, had sold
ammunition to a prohibited person, and that DiBella had allowed
a prohibited person to
handle firearms at Riverview. According to the ATF, a criminal
investigation of an
individual who admitted to being a felon in possession of
firearms, uncovered the fact
that DiBella had sold ammunition to a known felon, and allowed
that felon to handle
firearms in the store. That was the first time David LaGuercia
learned that DiBella had
engaged in such conduct.
On August 8 and 9, 2012, an informal hearing on the Notice of
Revocation was
Held in Boston. Over those two days, both sides presented
testimonial and documentary
evidence. When the hearing closed, approximately 18 months after
the violations were
discovered, no special conditions were applied, and no emergency
revocation occurred.
The FFL remained in tact, and Riverview continued doing
business. Four months later,
on December 14, 2012, now approximately 22 months after the
violations were
discovered, and more than 17 months after the initial Notice of
Revocation was served on
Mr. LaGuercia and Riverview, no action had been taken concerning
the revocation
proceedings. The FFL remained in tact and Riverview continued
doing business.
Then December 14 came.
Conveniently omitted from the media reports, which began when
the government,
on December 20, 2012 apparently leaked the upcoming raid to the
media (specifically
Len Bestoff of NBC) more than three hours before the raid took
place,
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Len Besthoff @lennbc 20 Dec 2012 Apparent ATF raid @ store where
Lanza bought gun OnlyOn3 #wfsb @ Riverview Gun Sales
http://instagr.am/p/Tea9q5oGEy/ Collapse
Reply Retweet Favorite More RETWEETS12 FAVORITE1
2:39 PM - 20 Dec 2012 from East Windsor, CT Details
was the fact that Riverview and Mr. LaGuercia had been actively
assisting the
ATF in its ongoing investigation into what had occurred at Sandy
Hook and other related
matters.
The government was selectively providing information to the
media
Len Besthoff @lennbc 20 Dec 2012 Sources: Riverview Gun Sales in
East Windsor CT sold #NancyLanza at least one of guns used in
#Newtown #wfsb Collapse
Reply Retweet Favorite More RETWEET1
3:51 PM - 20 Dec 2012 Details
in an attempt to publicly demonize and bury Riverview and Mr.
LaGuercia before
they knew what was happening.
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Len Besthoff @lennbc 20 Dec 2012 #RiverviewGunSales got on radar
screen after man with mental issues tried stealing 50 caliber long
gun Saturday #wfsb Collapse
Reply Retweet Favorite More RETWEET1
4:49 PM - 20 Dec 2012 Details
___________________________________________ Len Besthoff @lennbc 20
Dec 2012 Upon further investigation, police learned same man with
mental issues succesfully stole AR-15 from #RiverviewGunSales 4
days earlier #wfsb Collapse
Reply Retweet Favorite More RETWEETS2
4:52 PM - 20 Dec 2012 Details
________________________________________________________________________
Len Besthoff @lennbc 20 Dec 2012 police say this same man with
mental issues stole 11 other weapons from #RiverviewGunSales, found
in June 2011 @ father's home #wfsb Collapse
Reply Retweet Favorite More
4:53 PM - 20 Dec 2012 Details
________________________________________________________________________
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By the time the warrant was executed Riverview was already being
tied to
Newtown, Jordan Marsh and an attack in Hartford. This was no
accident. It seems that
the government believed it had an opportunity to undo the
staggeringly huge volume of
negative press3 it had received in the last few years, with a
high profile prosecution of a
firearms dealer coupled with a concerted media attack related to
Newtown. So first they
pursued a search warrant for documents they could have easily
had just for the asking,
and then put on a show for the media, while the Attorney General
of the United States
met with the Governor of Connecticut and law enforcement
officers in Newtown. It
seems the government was intent on showing Connecticut and the
country it could do
something about the tragedy that had occurred. The East Windsor
Police Department
actively assisted the federal government in its execution of the
search warrants4 and in its
effective pursuit of a media strategy designed to cripple
Riverview and Mr. LaGuercia
and destroy their names.
This was politics at its worst. The government no doubt viewed
the situation as a
difficult problem. Additionally, the government also knew that
it was exposed for failing
to prevent a young man with mental problems, who had previously
been convicted of
stealing guns, had avoided federal prosecution for those
offenses, who had received a
remarkably lenient sentence in connection with those thefts, to
repeat his offenses by
3
http://www.cbsnews.com/news/gunrunning-scandal-uncovered-at-the-atf/
http://www.nytimes.com/2012/09/20/us/report-places-blame-in-operation-fast-
and-furious.html?_r=0
http://www.cnn.com/2012/08/02/politics/atf-deputy-director-resigns/index.html
http://www.theguardian.com/world/2013/may/13/america-government-associated-
press-phone-records
http://thehill.com/blogs/blog-briefing-room/news/190219-gop-members-seek-to-
impeach-holder 4
http://www.nbcnewyork.com/news/local/Federal-Agents-Raid-East-Windsor-
Gun-Shop-Connecticut-Newtown-184370921.html
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stealing weapons again from Riverview. The government also knew
that it had permitted
a confessed felon to escape prosecution for charges related to
his being a felon in
possession of weapons and ammunition, had allowed the felons
wife to escape
prosecution for aiding and abetting him, and had permitted the
man who sold the firearms
and ammunition to them, who had also sold the Bushmaster to
Nancy Lanza, to escape
prosecution altogether. Lastly, the government, in the midst of
multiple investigations
related to its gun-walking policies and programs, had permitted
the man who sold to the
felon and to Nancy Lanza to sell about 3000 guns between the
time the government
learned of his illegal interactions with the felon, and the time
the government told Mr.
LaGuercia of those transgressions.
Facing this complex set of circumstances, the government set out
to blame Mr.
LaGuercia and Riverview for everything, criminal and
non-criminal, and portray them in
the worst possible light.
Riverview and David LaGuercia Assisted the ATF After Newtown
In fact, the ATF fully knew that had they requested any further
documents from
Mr. LaGuercia and Riverview, they would have received full
cooperation. The ATFs
experience in the aftermath of Newtown proved that. On December
14, Riverview
received a call from the National Tracing Center looking for a
trace on a Sig Sauer 226,
serial number UU676027, a gun apparently used at Sandy Hook. Mr.
LaGuercia found
the information and then saw that the purchaser, Nancy Lanza had
apparently purchased a
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Bushmaster XM-15, serial number L534858, and followed up with a
fax to the National
Tracing Center later that afternoon.
Obviously, Mr. LaGuercias assistance alerted the ATF to facts
they had not
known up to that point. The Riverview/LaGuercia FFL remained in
place, more than 4
full months after the conclusion of the two-day revocation
hearings, in which all the
violations cited in the FFL revocation notice had been detailed,
in testimony and
documents. The evidence also covered Krystopher DiBellas
interactions with a felon,
something the ATF acknowledged under oath occurred without Mr.
LaGuercias
knowledge and participation. From the first week of August,
2012, until December 14,
2012, the ATF and United States government had chosen to permit
Riverview and Mr.
LaGuercia to continue operating as an FFL.
Two days later, on December 16, ATF Special Agent Brian Higgins
contacted
Riverview, informed Mr. LaGuercia he wanted to come to the store
to meet, retrieve the
Lanza 4473s, and to make any necessary inquiries concerning
Lanza and her purchases.
Again, with the FFL still in place, Mr. LaGuercia and Riverview
complied, voluntarily
met with the ATF, Riverview Sales, which was closed at the time,
and provided
documents and other information, and all without a warrant. On
December 17, SA
Higgins called again, concerning two 4473s for guns unrelated to
Sandy Hook, came to
Riverview and took the documents, with nothing less than full
cooperation from Mr.
LaGuercia and Riverview.
That same day, December 17, ATF Industry Operation Supervisor
Tim Gahm,
informed Jillair Kubish, the ATF Area Supervisor, that the ATF
had previously cited
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Riverview for a record keeping violation involving the transfer
of the Bushmaster to
Nancy Lanza, during the course of the 2011 ATF Firearms
Compliance Inspection of
Riverview Sales. He informed her that Riverview was cited under
27 CFR 478.125(e), 18
U.S.C. 922(m) for having a disposition date that was prior to
the authorization date. That
violation was typical of the Riverview violations, in that it
was a technical violation of
the law, but endangered no one. Both Gahm and Kubish had
appeared for the government
in the revocation proceeding and were fully conversant in the
allegations and evidence
presented at the hearing. However, notwithstanding the volume of
the allegations cited in
the amended revocation notice, the nature of the evidence
presented by the government in
the hearing, and the procedural history of Riverview in
connection with ATF inspections,
Riverviews FFL remained in place, and after December 17 no
further ATF requests for
documentation or information were posed to Riverview.
On December 18, with the FFL still in place, the ATF could have
come to
Riverview and retrieved all of the documents eventually seized
on December 20, without
a warrant, and chose to refrain from doing so. The same is true
for the following day,
Wednesday, December 19. For those two days, it appears the
government knew it had a
political problem: the ATF had known about Nancy Lanza for
months, done nothing
about it, and now they knew her son had used a cited weapon in
the massacre. This
should not have been a problem, for there was absolutely no way
that a minor technical
citation should have led the ATF to follow up with Mrs. Lanza.
However, it apparently
may have influenced the governments action, and the resulting
impact on Riverview and
Mr. LaGuercia.
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Up to that point, Mr. LaGuercia and Riverview were, and would
have continued
to be, fully cooperative with the ATF and any of its
inquiries.
The ATF Intentionally Concealed Criminal Conduct from David
LaGuercia
It seems the government had yet another problem. The ATF had
known since the
July of 2011 that the individual who had sold the Bushmaster to
Lanza, Krystopher
DiBella, had sold ammunition to a known felon more than once and
had allegedly
facilitated the felonious use of firearms by that felon more
than once. Beyond the ATFs
knowledge of those incidents of criminal conduct, the United
States Attorneys office for
the District of Connecticut had known of the allegations against
DiBella since August,
2011, and had done nothing to alert Mr. LaGuercia that he
continued to employ a person
who was engaging in illegal conduct connected to the sale of
ammunition and weapons
involving a felon. (Neither the felon, nor the felons wife have
ever been prosecuted by
the federal government in connection with the noted
conduct.)
As noted in the defendants PSR objections, Riverview PSR 26 and
27, address
certain conduct by DiBella who admitted selling ammunition to a
felon. DiBella was
actually accused by that felon and the felons wife of repeatedly
selling firearms to the
wife of that felon for the felons possession and use, and
repeatedly giving the felon
access to firearms at shooting ranges in Connecticut. More
specifically, the felons wife
explained to federal agents that on Fathers Day 2011, DiBella
brought firearms to a
Connecticut shooting range and allowed the felon to use and
shoot a .45 caliber pistol, a
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10 mm pistol, a bolt action rifle, and a semi-automatic rifle
DiBella said he had built.
According to the felons wife, this incident occurred well after
DiBella had been told her
husband was a felon. The ATF acknowledged during the revocation
hearings that Mr.
LaGuercia was not involved in, and did not know of, any of this
activity involving the
felon and his wife, but cited the sales of ammunition as a
grounds for revocation, based
solely on the doctrine of respondeat superior.
It is somewhat bewildering, if not shocking, that the government
has previously
represented to the Court that there is no evidence to suggest
that his [DiBellas] errors
caused a firearm to be sold to a felon or that he was
responsible for knowingly
transferring firearms to prohibited individuals. The felon and
the felons wife proffered
to the United States Attorneys office, and the ATF agents
involved in the investigation
were present. According to the investigators, when they first
observed the felon, inside
his house with his wife, the felon was wearing a holster.
According to the felons wife,
she had purchased numerous firearms from DiBella, and had
informed DiBella she was
purchasing the weapons because her husband was a felon.
According to the felon, he
himself had informed DiBella that he was a felon, and gave that
as the reason his wife
had to purchase the weapons. It is difficult to understand how
the government could
represent DiBella as being anything less than a rogue employee
who knowingly and
repeatedly engaged in illegal conduct. (Apparently during
earlier related proceedings, the
government attempted to portray Mr. DiBella as a knave, poorly
trained by Riverview,
and who engaged in misconduct largely because he did not know
any better.)
On December 16, 2012, upon reviewing the Lanza 4473s, the ATF
had to know
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that Mr. DiBella, who up to that point had escaped any charges
whatsoever for his
repeated interactions with the felon and his wife, well over a
year earlier, was the same
person who sold the Bushmaster to Lanza. Notably, the government
had concealed its
knowledge and conclusions concerning DiBellas interactions with
the felon and the
felons wife from Mr. LaGuercia, from the time it first learned
of them, in July of 2011,
until the late summer of 2012, on the eve of the revocation
hearings. Mr. DiBella had
personally sold approximately 3,000 weapons between the time the
government learned
he had sold ammunition and weapons to the felon and the felons
wife, and the time the
ATF decided to inform Mr. LaGuercia of Mr. DiBellas actions.
What the government had done, was conceal Mr. DiBellas actions
from Mr.
LaGuercia, then later use those actions as a basis for revoking
the FFL, all the while
acknowledging Mr. LaGuercia did not know about those actions,
did not condone them,
or authorize them. Then government actors knowingly and
intentionally set out to destroy
Mr. LaGuercias business and his reputation by actively leaking
information to the media
about the December 20 raid; about prior thefts from Riverview,
which Riverview alerted
police about; about prior thefts by Jordan Marsh, a disturbed
man who was back on the
street because of the actions and inactions of federal and
Connecticut State authorities;
and about Nancy Lanza and Newtown.
These intentional actions were, in all likelihood, also
undertaken to direct
attention away from law enforcements inadequacies in their own
performance. This was
certainly not the first time the government had used leaks to
destroy a
person.5Additionally, the attacks against Mr. LaGuercia were
occurring at a time the ATF
5
http://www.azcentral.com/news/articles/2011/11/09/20111109burke-admits-
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and Department of Justice could not afford any further
controversies arising from its
investigative failings.6 In fact, on December 17, 2012, the last
day the government asked
Mr. LaGuercia for his help, it was widely reported that the
family of murdered Border
Patrol Agent Brian Terry was suing seven government employees
and a gun shop and its
owner for negligence and wrongful death.7 On December 18, 2012,
CBS News continued
the media onslaught against the Department of Justice connected
to Operation Fast and
Furious.8The government could not afford another public
relations problem, so it decided
to attack Mr. LaGuercia.
The defendants do not know if Mr. DiBella was a part of a formal
or informal
ATF gun-walking-type program in Connecticut, even at this late
date. What the
defendants do know is that had the ATF informed Mr. LaGuercia of
its knowledge that
Mr. DiBella had been selling firearms to the wife of a felon,
for their use by the felon;
had they known DiBella was taking firearms to shooting ranges in
Connecticut for use by
the felon; had they known DiBella had been selling ammunition to
the felon; or had they
know DiBella had been engaging in other illegal conduct
connected to the sale of
firearms or ammunition to, or use by, a felon, or by the spouse
intending to provide
leaking-whistle-blowers-records.html
6
http://www.cbsnews.com/news/heads-roll-after-fast-and-furious-investigation/
http://online.wsj.com/news/articles/SB1000142412788732371700457815973202
5255610?mg=reno64wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424127887323717004578159732025255610.html
http://www.washingtonpost.com/blogs/post-politics/wp/2013/06/07/manchin-holder-should-consider-resigning/
http://washington.cbslocal.com/2012/12/18/cbs-news-fast-and-furious-gun-found-at-site-where-mexican-beauty-queen-killed/
7
http://www.cbsnews.com/news/brian-terry-family-sues-atf-officials-in-fast-and-
furious/ 8
http://washington.cbslocal.com/2012/12/18/cbs-news-fast-and-furious-gun-
found-at-site-where-mexican-beauty-queen-killed/
-
-20-
firearms or ammunition to the felon, DiBellas employment would
have been
immediately terminated. Furthermore, we suggest that had the ATF
properly informed
Mr. LaGuercia of that severe breach of the law by his employee,
acting as an employee,
albeit ultra vires, for the conduct occurring at Riverview, and
then in an entirely personal
capacity for his conduct at the shooting ranges, Mr. LaGuercia
and Riverview may very
well still have the FFL.
We suggest that, because the ATF knew on July 7, 2011 of
DiBellas conduct,
consisting of multiple violations of the Gun Control Act, and
which the ATF believed
occurred from January 2010 to July 2011, but did not inform Mr.
LaGuercia of it until on
or about July 25, 2012. The ATF learned of Mr. DiBellas
interactions with the felon and
the felons wife on July 7, 2011, as a result of an ongoing
investigation. On that date, the
felon and his wife informed the ATF about Krystopher DiBella. At
that time, though a
notice of revocation had been served, had Riverview cooperated
with the ATF, and
perhaps other government agencies involved in the investigation,
the FFL may very well
have been saved.
It is indisputable that retrieving documents from an FFL on
December 19, 20 or
thereafter, through the voluntary cooperation, such as the ATF
had been receiving from
Riverview and Mr. LaGuercia, would have been easier, taken less
manpower, and would
have been more cost-effective and efficient. Such an approach
would also have prevented
the media from permanently imprinting David LaGuercia with the
mark of the Newtown
massacre. Most importantly, it is clear Mr. LaGuercia and
Riverview, if allowed, would
have fully cooperated with the governments ongoing investigation
into the tragedy at
-
-21-
Newtown. Apparently the government, for its own reasons, felt
the warrant was
necessary, but it certainly was not a legal necessity.
As we note above, the charges involved stem from Mr. LaGuercia
and
Riverviews failures to comply with the rigorous FFL requirements
that govern the
paperwork that must be maintained in connection with gun sales.
As the two reports
clearly reflect, the main thrust of this case is Riverviews use
of information or
intelligence (information provided by customers, understanding
of regulations, and
corrective instructions provided during earlier inspections,
etc.), operational security,
staffing, and policies and procedures for the operation of its
business as an FFL, and as
one of the highest volume gun dealers in the State of
Connecticut. More specifically, as
to sales volume, as Mr. LaGuercia estimated, Riverview sold
roughly 6,000.00 guns
annually (Riverview 32, LaGuercia 71). (The exact number for
sales from January 1,
2010 through December 31, 2012 is closer to 17,542.)
The Riverview PSR, at 96, and referred to above, concisely and
accurately notes
that Mr. LaGuercia is the one who ultimately had to answer for
DiBella selling a firearm
to a prohibited person, and another incident where a firearm was
stolen [by Jordan
Marsh] out of his store, in plain view of other employees and
customers. But DiBella
and the ATF kept his criminal actions to themselves, for well
over a year, and it is clear
that DiBella knowingly broke the law, as a rogue employee, and
whose actions
contributed to the revocation, even without Mr. LaGuercias
knowledge. Jordan Marsh
stole guns from Riverview, which was his victim, not just once,
but each time a gun was
stolen. It is an interesting spin on a blame the victim theory,
that the government
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-22-
apparently blames the defendants equally for being victimized
multiple times by a
mentally ill young man, who repeatedly stole guns from the
defendants. (Furthermore,
the technical nature of the paperwork violations is emphasized
by the fact that Mr.
LaGuercia and Riverview, knowing the stolen firearms were
already safe and in the
custody of law enforcement, committed violations by not
reporting the already safe guns
stolen or missing.)
The Governments Attempt to Destroy LaGuercias Name
The governments attacks on Mr. LaGuercia also transcended the
conduct at issue
in this case into private, defamatory, malicious attacks on him
as a gun owner.9
This case and this investigation has never touched upon Mr.
LaGuercias private conduct,
nor his personal ownership or use of a firearm. Yet, in a
brazen, arrogant, self-serving
attempt to connect Mr. LaGuercias Second Amendment rights to
Riverviews conduct in
this case and tarnish his name further, the government
disseminated information that
contradicted that reality. East Windsor Detective Mathew Carl,
whose law enforcement
agency partnered with the ATF and the U.S Attorneys Office in
this case, spoke openly
with the media about Mr. LaGuercia in a nationally distributed
story and intentionally
described Mr. LaGuercia as a very non-caring gun owner.10
(Emphasis added.)11
9
http://www.cnn.com/2013/04/05/us/connecticut-sandy-hook-gun-
store/index.html
http://fox8.com/2013/04/05/no-more-gun-sales-where-sandy-hook-weapon-was-
bought/
http://www.khq.com/story/21895979/store-that-sold-sandy-hook-firearm
10 Id.
-
-23-
This overt character assassination by the government, in the
national media,
was clearly designed to continue the devastating destruction of
Mr. LaGuercias
reputation.
The message the federal government and its state law enforcement
partners
continued to disseminate was that Mr. LaGuercia cared nothing
about the safety of
others, either in his capacity as FFL holder, as Riverview Sales
owner, or in his personal
capacity as a gun owner. They publicly connected him to Newtown,
Jordan Marsh and a
gun attack in Hartford. It is clear the government didnt care in
the least about the
significant negative implications the attacks would have on
Riverview or Mr. LaGuercia.
To the contrary, the government overtly sought to destroy Mr.
LaGuercias name and his
business. The government wanted to show the public that it was
protecting it, and that it
knew how to do its job, did it competently, and that any dangers
to the public stemmed
from David LaGuercia and Riverview, rather than the governments
failures or
inadequacies. The governments unwarranted and unjustified
attacks invite scrutiny of it
own actions.
Ironically, such examination reveals that Riverviews security,
as faulty as it may
have been, in some ways, reflects the difficulties that exist in
regulatory and paperwork
compliance connected to firearms. For example, if the government
were to be candid, it
would acknowledge that the Jordan Marsh incident is a
manifestation of a lack of
organizational security, staffing, and other controls, that have
often to be found lacking in
the governments own organizational operations connected to
firearms. The government
11 The defendants requested the U.S. Attorney investigate a
number of law
enforcement leaks related to this case, from the initial tweets
about the raid, to the leaks in April, 2013 revealing the
administrative findings generated in the revocation proceeding, but
were told the investigation was unsuccessful.
-
-24-
should not put undue blame on the defendants for security
failures that pale in
comparison to those committed by the worlds experts in firearms
safety.
Riverviews security failures in connection with the Marsh thefts
are not, not
have they ever been, criminal. There is no danger they may
reoccur, because Riverviews
FFL has been revoked. The governments repeated focus on the
thefts is apparently yet
another attempt to unfairly smear Mr. LaGuercia and Riverview,
by focusing media
attention on the defendants, and linking them to another
potentially dangerous situation.
As noted above, Mr. LaGuercia knew nothing of Mr. DiBellas
interactions with the felon
and the felons wife, yet somehow Mr. LaGuercia is to blame. The
linkage of Mr.
LaGuercia to an attack in Hartford had nothing to do with him or
Riverview.
The government, however, knew all about the DiBella
transactions, and did
nothing. The government is clearly holding Mr. LaGuercia to a
much higher standard and
much more responsible for protecting the public than it does
itself.
Earlier last year when the Milwaukee Journal Sentinel exposed a
botched
ATF sting in Milwaukee that included agents hiring a
brain-damaged man to promote
an undercover storefront and then arresting him for his work ATF
officials told
Congress the failed Milwaukee operation was an isolated case of
inadequate supervision.
It wasn't. The Milwaukee Journal Sentinel reviewed thousands of
pages of court records,
police reports and other documents and interviewed dozens of
people involved in six
ATF operations nationwide that were publicly praised by the ATF
in recent years for
nabbing violent criminals and making cities safer.12
According to the Journal Sentinel, agents with the U.S. Bureau
of Alcohol,
12 http://judiciary.house.gov/index.cfm/press-
releases?ContentRecord_id=8EB734E0-9367-4381-9796-E1FC16268CC0
-
-25-
Tobacco, Firearms and Explosives, used tactics similar to those
used in Milwaukee in
every operation, from Portland, Ore., to Pensacola, Fla.
Among the findings:
ATF agents befriended mentally disabled people to drum up
business and later arrested them in at least four cities in
addition to Milwaukee. In Wichita, Kan., ATF agents referred to a
man with a low IQ as "slow-headed" before deciding to secretly use
him as a key cog in their sting. And agents in Albuquerque, N.M.,
gave a brain-damaged drug addict with little knowledge of weapons a
"tutorial" on machine guns, hoping he could find them one. Agents
in several cities opened undercover gun- and drug-buying operations
in safe zones near churches and schools, allowed juveniles to come
in and play video games and teens to smoke marijuana, and provided
alcohol to underage youths. In Portland, attorneys for three teens
who were charged said a female agent dressed provocatively, flirted
with the boys and encouraged them to bring drugs and weapons to the
store to sell. As they did in Milwaukee, agents in other cities
offered sky-high prices for guns, leading suspects to buy firearms
at stores and turn around and sell them to undercover agents for a
quick profit. In other stings, agents ran fake pawnshops and
readily bought stolen items, such as electronics and bikes no
questions asked spurring burglaries and theft. In Atlanta, agents
bought guns that had been stolen just hours earlier, several ripped
off from police cars. Agents pressed suspects for specific firearms
that could fetch tougher penalties in court. They allowed felons to
walk out of the stores armed with guns. In Wichita, agents
suggested a felon take a shotgun, saw it off and bring it back and
provided instructions on how to do it. The sawed-off gun allowed
them to charge the man with a more serious crime. In Pensacola, the
ATF hired a felon to run its pawnshop. The move widened the pool of
potential targets, boosting arrest numbers. Even those trying to
sell guns legally could be charged if they knowingly sold to a
felon. The ATF's pawnshop partner was later convicted of pointing a
loaded gun at someone outside a bar. According to the reports,
instead of a stiff sentence typically handed down to repeat
offenders in federal court, he got six months in jail and a pat on
the back from the prosecutor.13
13 http://www.jsonline.com/watchdog/backfire-190528221.html
http://media.jsonline.com/documents/2013-01-
31+DEI+CEG+RWG+FJS+to+Jones-ATF+-+Milwaukee.pdf
-
-26-
This is all to suggest that the government is well aware that
sometimes use of
information or intelligence, operational security, staffing, and
policies and procedures for
the operation of an FFL, or for the operation of a government
agency charged with
maintaining records, keeping track of firearms and other
materials, falls short of what the
FFL or the agency intends. This may be true despite repeated
warnings or instructions.
For example, the FBI refused to participate in the ATFs
storefront schemes because of
its concerns about use of intelligence, operational security and
staffing.14 That, no doubt
would constitute a serious warning to the ATF from another
respected law enforcement
agency. As noted below, those concerns came to fruition and put
a massive amount of
people at risk. Riverview and Mr. LaGuercias actions did
not.
Upon investigation of these government activities, it was
learned that15flaws in
operational security related to government-operated gun shops
included setting up a gun
shops that were easy targets for burglars, and knowingly
permitting a man armed with a
gun and threatening to shoot someone walk out of an ATF run
shop.16This shines a light
on the governments unfair attempt to connect Jordan Marsh, a
scenario in which the
defendants were victimized, to some form of punishment for the
defendants. As reported,
the government had failed miserably in its own attempts to
implement proper security at
its own gun shops, allowing guns to be introduced into a
community, and putting it at
14
http://oversight.house.gov/wp-content/uploads/2014/01/2013-05-10-Grassley-
DEI-Goodlatte-Sensenbrenner-to-Jones-ATF-Milwaukee-Operation-Fearless.pdf
15
http://www.doi.gov/oig/reports/upload/USPPWeaponsAccountabilityPublic.pdf
http://www.mprnews.org/story/npr/138574291 16
http://www.jsonline.com/watchdog/watchdogreports/atfs-fearless-storefront-
had-little-to-ward-off-burglars-im8l7o4-190564791.html;
http://www.jsonline.com/watchdog/watchdogreports/atf-agents-conducting-sting-let-man-leave-store-with-gun-gd9vhf8-207807851.html;
-
-27-
risk. For some, supervising this type of failure warrants a
promotion.17Yet a private
citizen, David LaGuercia should be punished because Jordan Marsh
successfully stole a
gun, and then was caught trying to steal another. This, of
course, occurred after the ATF
and Connecticut state authorities decided Mr. Marsh, who
suffered from variety of
psychological issues, should be free after stealing 11 guns from
Riverview.
But, according to the government, Riverview and Mr. LaGuercia
alone, not the
government, are to blame for Jordan Marsh.
Other reported security failures by the government connected to
its own
operations include ATF agents losing track of their own guns,18
and abject lack of
oversight and audit, costing the public millions of dollars (The
ATF's cigarette-selling
stings, like one done in Milwaukee in 2011, were fraught with
problems, from misuse of
proceeds to millions of dollars in missing cigarettes, according
to a scathing audit by
the Department of Justice's Inspector General. The U.S. Bureau
of Alcohol, Tobacco,
Firearms and Explosives could not account for what happened to 2
million cartons of
cigarettes, with a retail value of more than $127 million,
according to the auditors. In one
sting which was done without approval of ATF supervisors an
informant working
for the agents received nearly all of the sting's $5 million in
profit, supposedly for
expenses and commissions. But ATF agents could not provide
paperwork to support the
informant's expenses. Auditors did not disclose where that
operation was conducted.
17
http://www.jsonline.com/watchdog/watchdogreports/atf-leader-who-oversaw-
botched-sting-will-run-phoenix-office-b9943426z1-213728421.html
18
http://www.jsonline.com/watchdog/watchdogreports/atf-agents-lost-track-of-
dozens-of-their-own-guns-reports-show-b99213499z1-247182581.html
-
-28-
Profits from that operation were deposited into the account of a
different ATF sting in
another state, which is a violation of the statutory
requirements, the auditors found.)19
The difficulties in maintaining accurate records and keeping
track of firearms and
safe guarding them, cigarettes, and official paperwork are not
by any means limited to the
ATF. This is true despite their expertise, training and best
intentions.20 A review of the
United States Department of the Interior Inspector General
Report on the U.S. Park
Police Weapons Accountability Program seems strikingly similar
in some ways to
Riverviews situation, but indisputably more serious in others.
(The similarity arises from
Riverviews repeat ATF inspections, during which it received
corrective instructions, as
the USPP did.) The June 27, 2013 report followed a 2008 report,
in which the Inspector
General provided 20 recommendations for improvement. That 2008
report found a
number of weaknesses in USPPs management and operations that
adversely affected the
level of security at national icons and presented other safety
concerns. 21
In 2009, the Inspector General reviewed the firearms controls of
the U.S.
Department of the Interior law enforcement programs, which
include USPP.22
According to the Inspector General [a] t that time, we found a
disconcerting attitude
toward firearms accountability within USPP. In particular, we
found that firearms
custodians were unaware of the number of guns in their inventory
or of the origin of these
guns, and that guns physically present were not listed on the
inventory. We strongly
19
http://www.jsonline.com/watchdog/watchdogreports/atfs-cigarette-stings-had-
serious-lack-of-oversight-audit-finds-b99106474z1-225195342.html;
www.justice.gov/oig/reports/2013/a1336.pdf.
20http://www.doi.gov/oig/reports/upload/USPPWeaponsAccountabilityPublic.pdf;http://www.washingtonpost.com/local/park-police-lost-track-of-weapons-inspector-general-report-says/2013/06/27/ac7fc58a-dcf9-11e2-85de-c03ca84cb4ef_print.html
21 Id. 22 Id. at 2.
-
-29-
recommend that immediate action be taken to establish a
professionally responsible
firearms management program at USPP. 23 According to the report,
the probe was
launched in part because of an anonymous tip that Park Police
officers were improperly
taking weapons home. Investigators discovered two instances in
which that had occurred,
but they found many other troubling examples of mismanagement,
according to the
report. Investigators found 1,400 guns that were supposed to
have been destroyed or
melted down. An additional 198 handguns donated by the Bureau of
Alcohol, Tobacco,
Firearms and Explosives are sitting in a building in Anacostia
but dont show up in
official records. In another instance, the agency in October
2011 sent a list of 18 pistols,
shotguns and rifles it described as lost or stolen to a national
database. But it never
launched an internal investigation. The guns, it turned out, had
been destroyed or given to
other agencies or they were still in Park Police possession,
according to the report.
One Remington shotgun remains missing. Commanders up to and
including the chief of
police have a lackadaisical attitude toward firearms management,
wrote Mary L.
Kendall, the deputy inspector general. Historical evidence
indicates that the indifference
is a product of years of inattention to administrative
detail.24
According to reporting on the matter, investigators took an
unusually harsh tone
in part because they said similar problems found in 2008 and
2009 were never fixed a
symptom of the decade-long theme of inaction and indifference of
top Park Police
managers.25 One could think the United States government holds
private citizens and
23 Id (emphasis added). 24 Upon this writing, we are unaware of
any criminal prosecutions of any USPP
officials for their failures to accurately keep inventories or
proper records in connection with firearms.
25 Id.
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-30-
FFLs such as Riverview and Mr. LaGuercia to a higher standard
and level of scrutiny and
accountability for maintaining required paperwork and records,
and for maintaining
security than it does its own agencies. Those agencies are
actually law enforcement, are
experts in firearms safety and record keeping, and, as noted
above, have their hands full
keeping their own houses in order.26
The reasons these significant government failures are germane to
this case are
numerous. First, the governments own firearms experts inability
to fulfill their
requirements to complete and maintain required records
demonstrates the difficulties that
sometimes arise when honest brokers attempt to fulfill their
obligations. As to the United
States Park Police, there seemed to be no attention whatsoever,
nor any effective system,
to keeping track of their weapons. There seems to be more than a
hint of hypocrisy in the
governments approach to Mr. LaGuercia, who was an FFL, but had
no military, law
enforcement, or management training, like those government
supervisors receive.
Apparently, the agents of ATF and the officers of USPP are very
non-caring
gun owners too.
Next, the government seems to be focusing on blaming the
defendants for putting
the community at risk for actions they knew nothing about
(DiBella) and for lapses in
security (Marsh), that are non-criminal, and that resulted in
the defendants being
26
http://www.washingtonpost.com/local/park-police-lost-track-of-weapons-
inspector-general-report-says/2013/06/27/ac7fc58a-dcf9-11e2-85de-c03ca84cb4ef_story.html
(The U.S. Park Police has lost track of thousands of handguns,
rifles and machine guns in what a government watchdog agency
concluded is the latest example of mismanagement on a police force
trusted to protect millions of visitors to the citys iconic
monuments.)
-
-31-
victimized by a person intent upon stealing from them. As noted
above, the federal
government has knowingly put weapons in the hands of felons and
mentally challenged
people in different parts of the country, something the
defendants would never even
contemplate doing. In this case, the government intentionally
concealed DiBellas
conduct from the defendants, allowing DiBella to remain in a
position where he could
engage in similar conduct with other felons and other prohibited
person, whenever he
liked.
Where was the governments concern for the safety of the
community at that
point? Where was the governments concern that DiBella might have
been engaging in
similar conduct with other felons or other prohibited persons?
The same questions may
be asked about the felon and the felons wife, who both escaped
prosecution. The
government has selectively downplayed the dangerousness of Mr.
DiBellas actions,
ignored the governments own conduct connected to Jordan Marsh,
and repeatedly
connected the defendants to Newtown, in order to make Mr.
LaGuercia seem worse than
he is.
The above reports concerning ATF operations also reflects the
agencys poor
decision-making in connection with some of its operations.
Permitting DiBella to
continue selling weapons and ammunition at Riverview for more
than a year, after
learning of his dealings with the felon and the felons wife, was
an atrocious decision that
put the community at significant risk. It also put the
defendants at risk and was then used
by the government in its attempt to revoke the FFL.
Similarly, it seems the government remains unduly focused on Mr.
LaGuercia and
-
-32-
Riverviews non-criminal conduct related to Jordan Marsh, and his
thefts of firearms
from Riverview, and on out-of-state sales, though the government
acknowledges the sales
did not violate any law. Mr. Marsh stole guns from Riverview,
and it is clear that lax
security played a significant role in at least the theft on
video. However, lax security is
not a criminal offense, and some would suggest the main reason,
as noted above, Mr.
Marsh was positioned to continue his criminal conduct was due to
earlier governmental
failures.27 In fact, those government failures exposed Mr.
LaGuercia, himself, to real
danger, when Marsh returned to the store to steal weapons.
The ATF permitted Riverview and Mr. LaGuercia to continue
operating as an
FFL after repeated inspections citing numerous violations,
because it knew the
community was not at risk as a result of those violations.
Riverview was a high volume
dealer, and repeatedly made mistakes in required paperwork over
its years of operations.
That the community was not at risk is demonstrated by the length
of time that elapsed
between the finding of violations in January, 2011, and the
eventual revocation on
December 20, 2012, and the related timing of steps in the
process, as described above.
The first time the dangerousness of Riverviews conduct was
suggested was after
Newtown, and it was discovered two weapons had been legally
purchased at Riverview.
Up to that point, notwithstanding the number of violations and
the full
administrative hearing, no one from the government had suggested
Riverview or Mr.
LaGuercia posed a danger to the community. Cynically, the
government has manipulated
the DiBella interactions with the felon and the felons wife to
shield itself and DiBella
(whose relationship with the ATF and government still remains
unknown) while using
27
http://www.wfsb.com/video?clipId=8746691&autostart=true
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-33-
them to revoke the FFL and as evidence against the defendants in
this case. That the
government, in a series of actions, has created the image of
Riverview and Mr. LaGuercia
it has, is an absolutely shameful course of hypocrisy.
It just seems that the government has chosen a selective and
hypocritical approach
to this case, in an attempt to further taint Mr. LaGuercia. It
has gone beyond what is
necessary and appropriate. This is unfortunate, because Mr.
LaGuercia has already
suffered enough at the hands of the government.
Sentencing Factors and Argument
Although the federal sentencing guidelines are no longer
mandatory, United
States v. Booker, 125 S.Ct. 738 (2005), they are far from moot.
The Second Circuit
instructs sentencing courts that their duty is to consider the
Guidelines. United States v.
Crosby, 397 F.3d 103 (2d Cir., 2005). Anticipating the need to
sculpt a new category of
sentences, the Circuit offered the following formulation for
sentences imposed in a non-
Guidelines manner: We think it advisable to refer to a sentence
that is neither within
the applicable Guidelines range nor imposed pursuant to the
departure authority in the
Commissions policy statements as a `non-Guidelines sentence in
order to distinguish it
from the term `departure. As Crosby noted, there are no
bright-line tests for
determining what an appropriate sentence should be; mere robotic
incantations do not
suffice when weighing the factors a sentencing judge must
consider.
Various factors to be considered in imposing sentence are set
forth in 18 USCA
-
-34-
3553(a). Under 3553(a), the sentencing court must impose a
sentence sufficient,
but not greater than necessary, to comply with the purposes set
forth in 18 USCA
3553(a)(2), which provides that the court, in determining the
particular sentence to be
imposed, must consider the need for the sentence imposed to (1)
reflect the seriousness of
the offense, to promote respect for the law, and to provide just
punishment for the
offense; (2) afford adequate deterrence to criminal conduct; (3)
protect the public from
further crimes of the defendant; and (4) provide the defendant
with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective
manner. Section 3553(a) further provides that in determining the
particular sentence to be
imposed, the court must also consider:
* The nature and circumstances of the offense and the history
and characteristics of the
defendant.
* The kinds of sentences available.
* The kinds of sentences and the sentencing ranges established
for the applicable
category of offense committed by the applicable category of
defendant as set forth in the
guidelines issued by the Sentencing Commission and in effect on
the date the defendant
is sentenced, or (in the case of a violation of probation or
supervised release) the
applicable guidelines or policy statements issued by the
Sentencing Commission.
* Any pertinent policy statement issued by the Sentencing
Commission that is in effect
on the date the defendant is sentenced.
* The need to avoid unwarranted sentence disparities among
defendants with similar
records who have been found guilty of similar conduct.
-
-35-
* The need to provide restitution to any victims of the
offense.
A sentencing court must impose a sentence of the kind, and
within the range,
established by the relevant provisions of the Sentencing
Guidelines, unless the court finds
that there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission
in formulating the
guidelines that should result in a sentence different from that
described. The court, in
determining whether to impose a term of imprisonment, and, if
one is to be imposed, in
determining the length of the term, must consider the factors
set out in 18 USCA
3553(a) to the extent that they are applicable.
The defendants stand before the Court as first time offenders.
Both defendants
convictions stem from their former status as an FFL, a status
they no longer possess, and,
by agreement, cannot possess for quite some time. The defendants
have been penalized as
a result of related conduct by the revocation of the FFL, which
has caused devastating
financial consequences. The defendants have also been paraded
before America as a face
of the tragedy at Newtown. Law enforcement officials involved in
this case have unfairly
attacked Mr. LaGuercias reputation in the national media. The
permanence of their
actions cannot be dismissed. This is all to suggest that a
significant penalty has already
been imposed.
Because the defendants conduct arises from the FFL, there is no
chance the
offending conduct may reoccur. The defendants lack of criminal
history strongly
suggests that experiencing this investigation, prosecution and
conviction, along with the
unwarranted media attention, when added to the financial
ramifications of the violations,
-
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in the form of the revocation, is in and of itself more than an
adequate punishment for the
crimes at hand.
If that were not enough, Mr. LaGuercias age and lack of criminal
history provide
the Court with assurance that he poses no risk to the public.
See, United States
Sentencing Commission, Recidivism: Criminal History Computation
of the Federal
Sentencing Guidelines (2004), Ex. 9 (which shows that those in
the age group of 41 to 50
who fall in criminal history category I have an especially low
recidivism rate of 6.9%, as
compared to those, for example, in the 36 to 40 years of age
bracket who recidivate at a
rate of 12.1% and those under age 21 who recidivate at a rate of
29.5%)28; United States
v. Carmona-Rodriguez, 2005 WL 840464, *5 (S.D.N.Y. 2005)
(observing that those
defendants over the age of 40 . . . exhibit markedly lower rates
of recidivism in
comparison to younger defendants.). Additional research
performed by the United States
Sentencing Commission also shows that those like Mr. LaGuercia
who have no arrests
have an even lower rate of recidivism than those individuals in
criminal history category I
who have an arrest history and are the most empirically
identifiable group of federal
offenders who are least likely to offend. United States
Sentencing Commission,
Recidivism and the First Offender, May 2004 17.29
28The Sentencing Commissions report, including Exhibit 9, can be
found at:
http://www.ussc.gov/Research_and_Statistics/Research_Publications/2004/200405_Recidivism_Criminal_History.pdf.
29The Report is available at:
http://www.ussc.gov/Research_and_Statistics/Research_Publications/2004/200405_Recidivism_First_Offender.pdf
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Conclusion
Based on the above we suggest that a short period of probation,
along with the
commitment to refrain from applying for an FFL is sufficient to
address all of the
sentencing concerns addressed by the Guidelines.
Dated: Westport, CT March 17, 2014 Robert Y. Altchiler
Robert Y. Altchiler, Esq. Attorney for Defendants
Riverview Sales, Inc. and David LaGuercia
111 Saugatuck Avenue Westport, CT 06880 (203) 545.0412 cc:
Robert Spector, AUSA (by email)
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EXHIBIT A
Profit / Loss Summary Report From Date: To Date:
Store Name Riverview Sales
1/1/201312/26/2013
Sales
Costs on Sales
NET Profit ($) : Total % Percent Profit :
IMPORTANT NOTES
Profit/Loss is calculated on all sales that were CLOSED within
the selected time frame. OPEN sales, which include outstanding
special orders and layaways are included in this report once they
are paid off completely AND CLOSED OUT.
This Profit Assumes a cost has been associated with all products
at the time of sale. If not, the cost defaults to $0.00 and the
profit becomes the selling price as opposed to selling price minus
cost. Cost = Trade in Price on a trade-in It is therefore CRITICAL
to this report that the costs be loaded into the system. Run the
Detailed Profit / Loss Report to see the exact numbers.
29.15%$422,970.04
Refunds
$1,285,223.05
$864,215.26$28,641.15
Cost on Refunds $19,095.19
$197,808.07
$185,338.07
Taxed
$972.19
Tax Exempt
$274.90
This Report Includes transactions on all registers wherein the
close date of the receipt was within the From and To Date. This is
not specific to a register or to an open/close session.
Taxed Sales Refers to Totals of items that were taxed (The tax
amount is NOT included in this total, however!)
Total % Profit = (Total Sales Taxed -All Refunds + Tax Exempt
Sales - Total Costs) / (Total Taxed and Tax Exempt Sales-All
Refunds )
The following transactions are included in this report. Sale of
New, used, serialized, non-serialized, and sale of consigned items.
Refunds of any kind, count as losses and figure into the NET profit
(thereby reducing it). Trade-ins are included in the sales figure,
but are listed separately. Direct Buys are not included in this
calculation at all. Total Sales include the sale of inventory,
services and fees for standard sales, closed layaways and closed
special orders.
Total Receipt Lines Used: Total Receipt Lines Skipped38587
1024Sum CheckerCOD/Drawer Deposit, Store Credit, Manual
Adjustments, Quotes, Trades and Direct Buys are NOT counted in this
report.
This Report Does Not require inventory items to contain category
and/or department information and is included even when these are
blank.
Row Totals
$1,483,031.12
$1,049,553.33$29,613.34
$19,370.09
Trade-ins $2,185.05
Trade Ins: Some perceive trades as "refunds" thereby lowering
the profit, while others do not. Trades are not included in the
above calculations, but listed separately for your calculations. To
include them, add them where ever you see Refunds.
46
LayawaysStandard Sales
Special Orders
Direct Buys
CashCredit CardDebit Card
Personal CheckTraveler's Check
Store Credit
Transaction Type and Payment Type Summaries for Selected Dates
(based on Closed Receipts w/in time Period)# Items* $$ Totals
70330909
0
410
$1,467,480.91$15,071.41
$0.00
$5,678.45 Gift Certificate
0.000.000.000.000.000.000.00
Refunds 914 $29,613.34
*# Items = Quantity * Line ItemInternet 18 $478.80Gift
Certificate Sales $1,750.00
Gift Certificate Sales are Listed Here but are NOT included in
the profit/loss until they are used as tender....
19
Trades $2,185.05 0.00 $2,185.05
Net Profit $ = (Sales - Trades - Refunds) - (Costs on Sales -
Cost of Refunds - Cost on Trades)
Cost on Trades $1,920.55 0.00 $1,920.55
$422,970. / $1,451,232.7 = $
Report Title: Date/Time Report Was Run: 12/26/2013 10:46:38
AM1Page Number:
Report Run By: David LaGuercia
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Profit / Loss Summary Report From Date: To Date:
Store Name Riverview Sales
1/1/201212/31/2012
Sales
Costs on Sales
NET Profit ($) : Total % Percent Profit :
IMPORTANT NOTES
Profit/Loss is calculated on all sales that were CLOSED within
the selected time frame. OPEN sales, which include outstanding
special orders and layaways are included in this report once they
are paid off completely AND CLOSED OUT.
This Profit Assumes a cost has been associated with all products
at the time of sale. If not, the cost defaults to $0.00 and the
profit becomes the selling price as opposed to selling price minus
cost. Cost = Trade in Price on a trade-in It is therefore CRITICAL
to this report that the costs be loaded into the system. Run the
Detailed Profit / Loss Report to see the exact numbers.
25.66%$1,039,757.89
Refunds
$3,934,632.68
$2,989,390.13$55,000.38
Cost on Refunds $38,579.74
$499,247.59
$387,303.11
Taxed
$5,331.21
Tax Exempt
$4,221.53
This Report Includes transactions on all registers wherein the
close date of the receipt was within the From and To Date. This is
not specific to a register or to an open/close session.
Taxed Sales Refers to Totals of items that were taxed (The tax
amount is NOT included in this total, however!)
Total % Profit = (Total Sales Taxed -All Refunds + Tax Exempt
Sales - Total Costs) / (Total Taxed and Tax Exempt Sales-All
Refunds )
The following transactions are included in this report. Sale of
New, used, serialized, non-serialized, and sale of consigned items.
Refunds of any kind, count as losses and figure into the NET profit
(thereby reducing it). Trade-ins are included in the sales figure,
but are listed separately. Direct Buys are not included in this
calculation at all. Total Sales include the sale of inventory,
services and fees for standard sales, closed layaways and closed
special orders.
Total Receipt Lines Used: Total Receipt Lines Skipped59278
3600Sum CheckerCOD/Drawer Deposit, Store Credit, Manual
Adjustments, Quotes, Trades and Direct Buys are NOT counted in this
report.
This Report Does Not require inventory items to contain category
and/or department information and is included even when these are
blank.
Row Totals
$4,433,880.27
$3,376,693.24$60,331.60
$42,801.27
Trade-ins $321,109.44
Trade Ins: Some perceive trades as "refunds" thereby lowering
the profit, while others do not. Trades are not included in the
above calculations, but listed separately for your calculations. To
include them, add them where ever you see Refunds.
1093
LayawaysStandard Sales
Special Orders
Direct Buys
CashCredit CardDebit Card
Personal CheckTraveler's Check
Store Credit
Transaction Type and Payment Type Summaries for Selected Dates
(based on Closed Receipts w/in time Period)# Items* $$ Totals
864922845
18
1696
$3,711,265.63$520,236.73
$2,275.15
$296,965.26 Gift Certificate
0.000.000.000.000.000.000.00
Refunds 1257 $60,331.60
*# Items = Quantity * Line ItemInternet 775 $200,167.26Gift
Certificate Sales $20,466.44
Gift Certificate Sales are Listed Here but are NOT included in
the profit/loss until they are used as tender....
776
Trades $321,109.44 0.00 $321,109.44
Net Profit $ = (Sales - Trades - Refunds) - (Costs on Sales -
Cost of Refunds - Cost on Trades)
Cost on Trades $321,210.63 0.00 $321,210.63
$1,039,75 / $4,052,439.2 = $
Report Title: Date/Time Report Was Run: 12/26/2013 10:50:23
AM1Page Number:
Report Run By: David LaGuercia
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Profit / Loss Summary Report From Date: To Date:
Store Name Riverview Sales
1/1/201112/31/2011
Sales
Costs on Sales
NET Profit ($) : Total % Percent Profit :
IMPORTANT NOTES
Profit/Loss is calculated on all sales that were CLOSED within
the selected time frame. OPEN sales, which include outstanding
special orders and layaways are included in this report once they
are paid off completely AND CLOSED OUT.
This Profit Assumes a cost has been associated with all products
at the time of sale. If not, the cost defaults to $0.00 and the
profit becomes the selling price as opposed to selling price minus
cost. Cost = Trade in Price on a trade-in It is therefore CRITICAL
to this report that the costs be loaded into the system. Run the
Detailed Profit / Loss Report to see the exact numbers.
25.14%$814,751.89
Refunds
$3,300,117.11
$2,542,908.57$53,984.26
Cost on Refunds $38,624.97
$353,999.64
$280,152.56
Taxed
$3,952.42
Tax Exempt
$3,155.47
This Report Includes transactions on all registers wherein the
close date of the receipt was within the From and To Date. This is
not specific to a register or to an open/close session.
Taxed Sales Refers to Totals of items that were taxed (The tax
amount is NOT included in this total, however!)
Total % Profit = (Total Sales Taxed -All Refunds + Tax Exempt
Sales - Total Costs) / (Total Taxed and Tax Exempt Sales-All
Refunds )
The following transactions are included in this report. Sale of
New, used, serialized, non-serialized, and sale of consigned items.
Refunds of any kind, count as losses and figure into the NET profit
(thereby reducing it). Trade-ins are included in the sales figure,
but are listed separately. Direct Buys are not included in this
calculation at all. Total Sales include the sale of inventory,
services and fees for standard sales, closed layaways and closed
special orders.
Total Receipt Lines Used: Total Receipt Lines Skipped47566
2973Sum CheckerCOD/Drawer Deposit, Store Credit, Manual
Adjustments, Quotes, Trades and Direct Buys are NOT counted in this
report.
This Report Does Not require inventory items to contain category
and/or department information and is included even when these are
blank.
Row Totals
$3,654,116.75
$2,823,061.13$57,936.68
$41,780.44
Trade-ins $355,418.80
Trade Ins: Some perceive trades as "refunds" thereby lowering
the profit, while others do not. Trades are not included in the
above calculations, but listed separately for your calculations. To
include them, add them where ever you see Refunds.
1188
LayawaysStandard Sales
Special Orders
Direct Buys
CashCredit CardDebit Card
Personal CheckTraveler's Check
Store Credit
Transaction Type and Payment Type Summaries for Selected Dates
(based on Closed Receipts w/in time Period)# Items* $$ Totals
588283006
2
1328
$3,001,842.37$492,686.60
$698.00
$207,180.70 Gift Certificate
0.000.000.000.000.000.000.00
Refunds 1060 $57,936.68
*# Items = Quantity * Line ItemInternet 700 $158,889.78Gift
Certificate Sales $20,156.94
Gift Certificate Sales are Listed Here but are NOT included in
the profit/loss until they are used as tender....
701
Trades $355,418.80 0.00 $355,418.80
Net Profit $ = (Sales - Trades - Refunds) - (Costs on Sales -
Cost of Refunds - Cost on Trades)
Cost on Trades $355,271.30 0.00 $355,271.30
$814,751. / $3,240,761.2 = $
Report Title: Date/Time Report Was Run: 12/26/2013 10:56:13
AM1Page Number:
Report Run By: David LaGuercia
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EXHIBIT B
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-
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