TUCSON — Two federal agents at the heart of a failed gunrunning investigation are blaming federal prosecutors for allowing illegal buyers to take the weapons to Mexico.
The Arizona Daily Star reports that lawyers for ATF supervisors Bill Newell and David Voth sent letters to two members of Congress investigating Operation Fast and Furious last month, saying federal prosecutors blocked any efforts to arrest the suspected illegal buyers or to seize the guns before they reached Mexico.
They argued that from September 2009 until June 2010, the prosecutors told the bureau of Alcohol, Tobacco, Firearms and Explosives agents running the investigation they did not have probable cause to arrest the people buying the weapons or to seize the guns.
Most of the 2,000 guns that suspects bought were sold during that time.
The operation was exposed when one of the guns was used to kill U.S. Border Patrol Brian Terry in December 2010.
“According to the prosecutor, the agents lacked sufficient evidence that the firearms were illegally purchased, and it would have been unlawful for the agents to seize them,” attorney Joshua Levy said in a letter on Voth’s behalf to Rep. Darrell Issa, R-Calif., and Sen. Charles Grassley, R-Iowa. “Under those circumstances, non-interdiction by the agents is not gunwalking.”
The agents’ version of events runs counter to what Issa and Grassley have found in their investigation of Fast and Furious, which has singled out Voth, then the group supervisor overseeing the case, and Newell, then the special agent in charge of ATF’s Phoenix division.
“Allowing guns to fall into the hands of the (drug trafficking organizations) was the operation’s central goal,” a staff report written for Issa and Grassley concluded last year.
Voth and Newell were later transferred from the Phoenix ATF office.
In the letters sent to Issa and Grassley and published online by Townhall.com, the two former ATF supervisors say agents didn’t like the restrictions from prosecutors at the U.S. Attorney’s Office in Phoenix. But they had to abide by them after a Jan. 5, 2010, meeting when prosecutors determined they didn’t yet have a case.
Voth told investigators about the conundrum in an interview last year.
“I don’t think that agents in Fast and Furious were forgoing taking action when probable cause existed,” he said. “If the U.S. Attorney’s Office says we don’t have probable cause, I think that puts us in a tricky situation to take action.”
Some evidence released by congressional investigators contradicts that argument.
Cooperating gun dealers told agents in spring 2010 that they didn’t want to keep selling to some of the ATF’s targets, but agents asked them to keep selling. One even worried in an email that the guns he was selling might end up being used against a Border Patrol agent. That came six months before Terry was killed.
Voth told a dealer in an April 13, 2010, email: “I understand that the frequency with which some individuals under investigation by our office have been purchasing firearms from your business has caused concerns for you. . However, if it helps put you at ease we (ATF) are continually monitoring these suspects using a variety of investigative techniques which I cannot go into (in) detail.”
Investigative documents also show agents talking about modifying the flow of weapons. One key briefing paper on Fast and Furious, written by ATF agents on Jan. 8, 2010, says:
“Currently our strategy is to allow the transfer of firearms to continue to take place, albeit at a much slower pace, in order to further the investigation and allow for the identification of additional co-conspirators who would continue to operate and illegally traffic firearms.”
Former Arizona Attorney General Terry Goddard told the Star last week that federal prosecutors in Phoenix were hesitant to take on some gun-trafficking cases. The biggest difficulty with prosecuting “straw buyers” who use their clean records to buy guns for other people, is showing that they never intended the gun to be for themselves, Goddard said.
“You have to prove that at the time he filled out the form he did not intend to keep the gun for personal use,” Goddard said. A defendant “can say, ‘I changed my mind after I left the store.’ “
But a former federal prosecutor in Tucson said people making false statements on the forms can be prosecuted.
“You have to represent that you’re the actual buyer,” defense attorney Sean Chapman “So, if you’re buying the gun for somebody in Mexico, then that’s a felony.”
In another development, the letters revealed the subject of a memo leaked by former U.S. Attorney for Arizona Dennis Burke to a Fox News reporter.
The memo purportedly showed ATF Special Agent John Dodson had allowed criminal suspects to buy guns as part of a separate investigation in 2010.
That matters because Dodson was the whistle-blower who initially told Sen. Chuck Grassley, R-Iowa, about the “gunwalking” and he blamed ATF supervisors in Phoenix for letting such “gun walking” happen.
Dodson testified before a congressional committee last year that when ATF agents see an illegal gun purchase, they must maintain surveillance: “You don’t get to go home,” he said.
The letter said Dodson himself delivered six pistols to a suspect.
Grassley spokeswoman Beth Levine said Dodson told congressional investigators about that incident.
Burke resigned his position as U.S. attorney in August 2011 after admitting the leak to Justice Department investigators.