Case 2:10-cr-01047-ROS Document 547 Filed 02/08/13 Page 1 of 6

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

United States of America, Plaintiff, Idan C. Greenberg, Defendant. DEFENDANT GREENBERGS MOTION FOR DIRECTED . VERDICT CR-10-01047-6

The Defendant, Idan C. Greenberg by and thorough undersigned counsel requests the Court to grant Defendants Motion for Directed Verdict on Counts 1, 74, 81 and 89. Pertinent Facts Defendant Greenberg (hereinafter Greenberg) has possessed a Federal Firearms License (Class I) since 1980 and a Special Occupational Taxpayers License (Class III) dealers license since 1985. A summary of Greenbergs testimony at trial was that in April 1998, Greenberg met Defendant Clark (hereinafter Clark) at a Thompson Collectors shoot as participants in the Kingman Gun Club. Clark informed Greenberg he had pre-May 1986 transferrable side plates for sale. Greenberg was not shown the side plates nor was Greenberg told how side plates were made. In the summer of 1998, Greenberg purchased a parts kit for a 1919 A4 Browning from Ohio Ordinance. Later, in the winter of 1998, Greenberg provided Clark with the parts kit and paid him to assemble a 1919 A4 Browning machine gun. After Greenberg paid Clark to assemble the parts kit for the Browning several months passed.

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In April, 1999 ATF/NFA (National Firearms Act Branch) approved the transfer of the A4 Browning from Clark to Greenberg via ATF Form 3. By June, 1999 Clark had still not delivered the Browning to Greenberg. Clark transferred the Browning to Greenberg on July 7, 1999 with the completed approved ATF Form 3. Subsequently, Greenberg sold the Browning to Ralph Fox. Greenberg stated the same information on the ATF Form 4 given to him by Clark when he transferred the machine gun to Fox. ATF approved the transfer from Greenberg to Fox on 12/11/1999. A second 1919A4 Browning serial number 860012729 was transferred from a Dr. Derell Revis to Greenberg. ATF approved the transfer on a Form 3 on May 2, 2003. The second 1919 A4 Browning was also a Clark side plate machine gun. The subject 1910 Maxum machine gun serial number SAP453187 was a side plate gun. Greenberg purchased the Maxum from Defendant Kalish. The transfer again was completed on an ATF Form 3. Unbeknownst to Greenberg the 1910 Maxum was assembled by Defendant Arnberger. The Maxum was approved for transfer by ATF to Greenberg on July 24, 2003 and Greenberg took possession of the Maxum on August 23, 2003. In the transfer of all of the subject firearms Greenberg relied on ATF approval (either on a Form 3 or Form 4) for all of the transfers. At trial, Clark testified that he removed the serial number, and other manufacturers markings from side plates and inserted the serial numbers and markings on the firearms the government presented at trial as evidence. Clark testified he performed the work alone. Neither Clark, Revis or Kalish testified they ever requested Greenberg to provide false information for their transfer of the firearms to Greenberg. Neither was there testimony from any witness that Greenberg was to provide false information ATF Examiners when the weapons were sold to successive buyers. ... ... ... ...

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ARGUMENT The Government Failed to Establish an Interdependent Conspiracy Between the Defendants as Charged In Count One of the Indictment. In order for the Governments conviction on Count I, Conspiracy to stand the Court must

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find that the government provided evidence to the jury that demonstrated (1) that two or more persons agreed to violate the law, (2) that the defendant knew at least the essential

objectives of the conspiracy, (3) that the defendant knowingly and voluntarily became a
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part of it, and (4) that the alleged coconspirators were interdependent. United States v. Caldwell 589 F3 1323 (2009).

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Clark never entered into an agreement with Greenberg to engage in illegal activity. At trial, while exhibiting regrets for his behavior, Clark clearly related to the jury that he

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did not believe at the time he engaged in his behavior that he was committing any illegal
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acts. The law in area was not clear in 1993 when Clark began to engage in this conduct. Clark was never sanctioned or even questioned by ATF Examiners about his conduct.

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Therefore, it would make perfect sense that Clark did not testify that he and Greenberg
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had an agreement to defraud or engage in any illegal conduct due to Clark not believing his conduct was illegal.

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Furthermore, Caldwell clearly stands for the premise that in order for the
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defendants to be engaged in a conspiracy there has to be an interdependent relationship. Caldwell is instructive to the case at bar. In Caldwell, the defendant was convicted of

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entering a conspiracy to sell marijuana. However, the Appellate Court found that while
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Caldwell and co-defendant Anderson were both being supplied marijuana by co23

defendant Herrera, both Caldwell and Anderson were independent drug dealers and each
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had conspired with Herrera in their own separate relationship. Co-counsel summarized the argument best in his Omnibus Motion. In Kotteakos v. United States, 328 U.S. 750

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(1946) , a broker obtained fraudulent loans for 31 people. All were tied together as a
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wheel conspiracy but the government failed to establish a rim linking the creditors with

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any others except the broker. The facts are similar in the conspiracy charged here and the evidence produced at the Greenberg trial. Like Caldwell and Katteakos, the hub of this wheel was Clark, a person who was licensed by the federal government and paid a special occupational tax to enable him to manufacture machine guns. Clark acquired lawfully registered MAC style machine guns receivers and reconfigured them into other models. He then offered them for sale openly and flagrantly. Upon completion of each sale, Clark prepared and submitted ATF applications to transfer them to numerous separate buyers, including the five co-defendants. As previously mentioned thirty-four transfer applications were approved between 1993 and 2009. The governments theory presented at trial was that the transfer applications were approved due to misrepresentations in the descriptions of the machine guns. The only nexus among the buyers lay in the fact that Clark, the hub of the wheel, independently performed certain tasks that were common to each of the 34 machine guns. Clark acquired the MAC receivers; Clark performed all of the machining and assembly of the reconfigured machine guns; Clark offered the reconfigured machine guns for sale; Clark sold them and there was no evidence at trial that the profits were shared with anyone; Clark executed the ATF Transfer applications Forms and filed them with ATF. After receiving approval, Clark shipped them to the transferees. The conspiracy in the indictment and presented at trial is a wheel conspiracy consisting of a hub and five spokes with no connecting rim. At trial, the government inappropriately presented a number of separate and distinct chain conspiracies as one conspiratorial relationship between the defendants. However, some of the most prejudicial evidence presented at trial was the testimony of Clark and Defendant Kalish wherein they both related how they had engaged in three incidents of illegal behavior. Defendant Kalish related to the jury three separate instances wherein he had asked Clark to wash paperwork for him. Kalish testified in great detail as to how he contacted Clark and specifically asked him to falsify ATF Forms to make the paperwork look as if Kalish had transferred to Clark the following items M2 Heavy Machine Gun serial number BA-V036; an AK-47 style machine gun serial number

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C351 and a FNAB 1943 machine gun receiver serial number 10. On the witness stand Clark admitted he falsified washed the paperwork having never seen nor performed any work any of the weapons. Clark testified he falsified or washed the ATF forms faking a transfer back to Kalish. The testimony of Kalish and Clark regarding these incidents was significantly different than presented in the Indictment at paragraphs 49-51. Their testimony amounted to on the witness stand confessions of illegal behavior much more narrow than acts charged in the Indictment and was severely prejudicial to Greenberg. Both Clark and Kalish testified they did not mention the incidents to Greenberg neither did they request his help or involvement. Again, the government inappropriately presented these incidents between Clark and Kalish as apart of an one overarching conspiracy. If the Court Finds the Government did not Present Evidence Sufficient to Prove a Conspiracy between the Defendants Counts 74, 81 and 89 Should also be Dismissed. In the Indictment Counts 74, 81 and 89 Greenberg is charged with Illegal Possession of a Machine gun. However, these counts rest upon the foundation that if Greenberg was a co-conspirator illegally acquiring the machine guns, he then took illegal possession of the weapons. It then stands to reason if Greenberg did not conspire with Clark to commit an unlawful act he too was not knowingly in possession of an illegal weapon. Greenberg should be treated as the government chose to treat John Brown, Ralph Fox and others the government deemed to be innocent victims. After hearing four weeks of testimony in 34 Count machine gun case (the weapons displayed every day of the trial) at the lunch break on December 17, 2012, the nation began to hear the shocking news of the shooting at Sandy Hook Elementary School in Connecticut. For days the nation was transfixed upon the images of innocent children killed by a person using an automatic weapon. This Court tried to address the tragedy with the jury, however it was unknown at the time the extent and devastation of the loss. The jury had no choice but to hear the raging debate whether persons should be allowed to possess military style weapons. The jury quickly responded bypassing the over 400

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exhibits submitted for their consideration an finding the defendants guilty within two hours of deliberation time. Defendant Greenberg requests the Court grant his request for a directed verdict on all Counts.

Respectfully submitted this 8th day of February, 2013. By s/Loyd C. Tate Loyd C. Tate Attorney for Defendant

I hereby certify on February 8, 2012, I electronically transmitted the attached documents to the Clerks Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

The Honorable Roslyn O. Silver United States District Court James P. Vann Kathy Jo Lemke Assistant U.S. Attorneys