United States v. Ford

FILE D
United States Court of Appeals
Tenth Circuit

PUBLISH December 11, 2008
Elisabeth A. Shumaker
U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court

T E N T H C IR C U IT

UNITED STATES OF AM ERICA ,

Plaintiff-Appellee ,
v. No. 07-1176
STAN TARAN FORD ,

Defendant-Appellant.

A PPE A L FR O M T H E U N IT E D ST A T E S D IST R IC T C O U R T
FO R T H E D IST R IC T O F C O L O R A D O
(D .C . N O . 05-C R -537-R E B )

Jill M . W ichlens, Assistant Federal Public Defender (Raym ond P. M oore, Federal
Public Defender, with her on the briefs) Office of the Federal Public Defender,
Denver, Colorado .

Andrew A. Vogt, Assistant United States Attorney, (Troy A. Eid, United States
Attorney, with him on the brief) Office of the United States Attorney, Denver,
Colorado.

Before T Y M K O V IC H , G O R SU C H , Circuit Judges, and PA R K E R , Senior
District Judge. *

T Y M K O V IC H , Circuit Judge.

*
Hon. James A. Parker, Senior U.S. District Court Judge, District of New
M exico, sitting by designation.
 Stan Taran Ford was convicted for illegally selling or possessing a machine

gun. Ford’s primary defense at trial was entrapment. After he was convicted,

Ford alleged the government failed to produce multiple emails sent between him

and the informant. The district court found that three undisclosed emails existed,

but denied a post-trial motion to set aside the conviction, concluding that these

emails would not have affected the outcome of the trial. W e agree with the

district court that in light of all the evidence presented at trial, the emails were

not sufficiently material to cast doubt on the jury’s verdict.

Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district

court’s judgment.

I. Background

Factual Background

Colorado’s Joint Terrorism Task Force (JTTF) 1 obtained a tip in late 2003

from Ford’s co-worker Jimmy Hee that Ford was trafficking in automatic weapons

and engaging in other suspicious activity. According to the tip, Ford, a Denver

firefighter, owned illegal fully-automatic firearms and was attempting to procure

sensitive military communications equipment. Ford also allegedly asked Hee

1
The JTTF is a law enforcement task force comprised of the FBI and other
federal, state, and local law enforcement agencies that investigate crimes
involving international and domestic terrorism.

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about a NATO conference in Colorado Springs and a planned visit by Secretary of

Defense Donald Rumsfeld to Fort Carson.

As part of their investigation, the JTTF recruited Keith Heavilin to work as

an informant. Heavilin had previously worked as an informant in several other

JTTF investigations. Prior to working on this case, Heavilin had also served in

the military for twenty-one years and was employed by the security division of the

U.S. Department of Energy for sixteen years.

In February 2004, Heavilin struck up a conversation with Ford at a gun

show in Denver, where Ford was an exhibitor. Ford soon perceived Heavilin to

be a friend. Over the next year and a half, they had over 100 contacts with each

other via phone, email, and in person.

During this time, Ford sold Heavilin three machine guns. The first

transaction occurred on April 22, 2005, when Ford sold Heavilin a Sten machine

gun. The next transaction occurred several months later, on August 2, 2005,

when Ford sold Heavilin a H&K machine gun. Finally, on November 21, 2005,

Ford sold Heavilin a fully automatic AR-15 machine gun. 2

2
In the record, the parties and witnesses also refer to this weapon as an
Olympic Arms machine gun.

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 Pretrial Proceedings

Ford was charged with three counts of knowingly transferring or possessing

a machine gun, in violation of 18 U.S.C. § 922(o). 3 The three counts were based

on the April 22, August 2, and November 21 machine gun sales.

Before trial, Ford filed a motion to obtain the government’s case files

pursuant to Brady v. M aryland, 373 U.S. 83 (1963). During a hearing on this

motion, Ford specifically requested any emails between Heavilin and himself.

Ford did not have access to the emails because the government seized his

computer when he was arrested. Although the government produced several

emails, Ford told the court he believed more emails existed, and this evidence

would support his defense. The government responded by stating it was not

aware of any additional emails, but it agreed to recheck its records. The

prosecution did not provide Ford any additional emails prior to trial.

3
He was also indicted on one count of knowingly possessing a firearm
with an obliterated serial number in violation of 18 U.S.C. § 922(k). This charge
is not relevant to the present appeal; the jury acquitted him on this count.

-4-
 Entrapment Defense at Trial

At trial, Ford did not deny he sold Heavilin the three machine guns.

Instead he argued he had been entrapped by the government.

In support of the entrapment defense, Ford argued Heavilin continuously

pressured him over a long period of time to acquire and sell the three machine

guns— crimes Ford was otherwise unwilling to commit. In particular, Ford’s

counsel highlighted the substantial number of contacts Heavilin initiated with

Ford. The attorney summarized these contacts in a spreadsheet presented to the

jury, and repeatedly referred to them during trial. For example, in his closing

argument counsel stated the following:

This is the exhibit that you have seen, at least the first page, you
have seen it a lot. But what you need to focus on for a minute is the
sheer number of contacts initiated by Keith Heavilin. . . .

And what is he calling all of these times to do? He is calling all of
these times to persuade and talk a man into selling him a gun who
told him, no, I don’t sell automatic weapons, I thought you were
talking about a semiautomatic weapon, I can’t help you. That is call
after call, meeting after meeting, for one purpose only; to make him
think you are a friend, and to persuade or talk him into selling you
an automatic weapon.

R., Vol. XV at 1832–33 (emphasis added). As counsel explained, “This exhibit is

a roadmap for entrapment.” Id. at 1835.

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Chronology

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 During the trial, both the prosecution and the defense highlighted the

substantial interactions between Ford and Heavilin. From the time they first met

on February 7, 2004, to the time of Ford’s arrest, the two communicated by

phone, email or in person over one hundred times. Up to the first machine gun

sale on April 22, 2005, Heavilin and Ford communicated fifty-nine times. Then,

between the April 22 and August 2 transactions, they communicated another

twenty-five times. Finally, between the August 2 and November 21 sales, they

communicated nineteen times. M ost of these communications were by telephone,

although they met in person thirteen times and sent seventeen emails.

The following is a chronology describing interactions that occurred after

the second sale.4 The bold text reflects information contained in the missing

emails. The remaining text is based on the trial record.

8/14/2005 Ford emails Heavilin.

9/21/2005 Heavilin calls Ford, and Ford calls him back seven hours
later. Ford tells Heavilin he is worried about something
related to the gun show. Ford repeatedly tells Heavilin “I
played by the rules a hundred percent, I haven’t done
anything wrong.” R., Vol. IX at 165. 5

4
For the dates August 14, October 5, October 13, and October 17, the only
information available to the jury was the existence of the contacts. The trial
record does not contain information regarding what was said or written.
5
Additionally, a recording of the conversation was played at trial.

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 U nspecified First m issing em ail: H eavilin em ails Ford and asks him
tim e before about a third m achine gun.
10/5/2005

10/5/2005 Ford sends the following reply to Heavilin 6 :

Just returned from out of town. Social
sounds good. I’ll call you and set something up
over next couple of days. Not any good
computer7 deals out there right now. I think
rising costs are to blame. Just keep watching
the big store ad’s [sic] for a sale.

Should be able to call in the next couple of
days.

R., Vol. I, Doc. 179 at 16; see also Aplt. Addendum, Exhibit
1.

10/13/2005 Heavilin calls Ford.

10/17/2005 Heavilin calls Ford three times on the same day.

10/18/2005 Ford calls Heavilin and Heavilin calls him back. They
decide to meet at the Rocky Flats Lounge. At the Lounge,
Heavilin tells Ford the second machine gun he purchased had
too much kick and he wanted a smaller caliber gun. He
explains he has the money and would like the machine gun
in two weeks. Ford responds by saying he has not heard of
anything being available, but something might come up
around Christmas because someone might be in need of cash.

6
Both Ford and the government state the text of this email was available to
the jury, but do not cite to the trial record to show where it was discussed or
admitted. Instead the parties merely cite an exhibit Ford submitted with his
motion for a new trial. See R., Vol. I, 179 at 16.
7
Computer was Ford and Heavilin’s code word for machine gun.

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 U nspecified Second m issing em ail: H eavilin em ails Ford and asks
tim e betw een him to locate and sell him a third m achine gun.
10/18/2005 and
10/28/2005

10/28/2005 T hird m issing em ail: Ford sends the follow ing reply to
H eavilin’s em ail:

nothing at this tim e. I don’t expect to find a
special on a com puter this close to christm as
[sic]. T oo m uch dem and for a good sale.
Just keep w atching the new spaper ad’s [sic].
I am still w atching.

R ., V ol. I, D oc. 196, at 14.
11/17/2005 Heavilin calls Ford and asks him “what’s the word.” Aplt.
Addendum, Exhibit 2. Ford replies that nothing is available.
Heavilin tells Ford he knows someone in Colorado Springs
but prefers to deal with only Ford. Ford suggests he ask the
person in Colorado Springs. Heavilin tells Ford to keep in
touch and let him know if anything becomes available.

11/19/2005 Ford calls Heavilin twice. Heavilin tells Ford that he will
call him back. Twenty minutes later, Heavilin calls Ford,
and Ford says a machine gun became available.

11/21/2005 Heavilin calls Ford and Ford calls him back. Heavilin meets
Ford at a predetermined location and Ford gives him a decoy
gun. Once Ford is sure that no police are monitoring the
transaction, they meet again at a different location. Ford
gives Heavilin the machine gun in exchange for $5,400 in
cash.

After Ford and Heavilin completed the last transaction, law enforcement

officers arrested Ford early the next day.

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 The jury’s verdict was split— acquitting Ford on the April 22 and August 2

transactions and convicting him based on the weapon sold or possessed on

November 21, 2005.

Post-trial Proceedings

Ford subsequently filed a motion for a new trial, alleging the government

violated Brady by withholding evidence material to his entrapment defense. In

particular, he alleged the government withheld emails sent by Heavilin “that were

exculpatory in that they would have provided documentary evidence to support

[Ford’s] assertion that he was subject [to] government entrapment when he sold

the third fully automatic weapon to [Heavilin].” R., Vol. I, Doc. 173 at 2, ¶ 2.

The government responded by stating it was not aware of any undisclosed

emails. The district court agreed to hold an evidentiary hearing regarding the

matter.

Prior to the hearing, Ford served a subpoena on Heavilin’s email provider,

Yahoo, to determine whether any undisclosed emails could be recovered. Yahoo

discovered a single email. This previously undisclosed email was sent by Ford to

Heavilin on October 28, 2005. In the email, Ford tells Heavilin no “computer”

was currently available for sale. 8

8
See supra note 8.

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 During the hearing, Heavilin explained that when he received an email from

Ford, he forwarded it to Donald Estep. Estep was a Jefferson County deputy

sheriff and he assisted the JTTF with the investigation. After Heavilin forwarded

an email, he then deleted it from his Yahoo account.

W ith regards to the missing October 28 email, Heavilin explained Estep

was out of the office when this email arrived; Estep was either on vacation or

attending classes. Heavilin placed the email in the hold box of his Yahoo

account. Presumably, he planned to forward the email to Estep when he returned

to work. Heavilin testified he nonetheless forgot about the email and never

forwarded it. He believed this email was the only message he forgot to send to

Estep. 9

In reviewing the evidence presented at the hearing, the district court

nonetheless concluded two additional emails existed. The first email would have

been sent by Heavilin sometime prior to October 5. In the email, the court

concluded Heavilin asked Ford to sell him a third machine gun. The second email

was sent sometime between October 18 and October 28, and likely spurred Ford’s

9
The government agreed at oral argument that entrusting evidence
preservation to an informant is improper procedure. That error was compounded
in this case by the failure to make timely access to the computer hard drives the
government held after it arrested Ford.

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October 28 response. In this email, the court concluded again that Heavilin asked

Ford to sell him a third machine gun.

Even though the district court concluded the government withheld three

emails, the court decided no Brady violation occurred. It concluded the

undisclosed emails were merely cumulative to the substantial number of other

contacts between Ford and Heavilin and would not have made a difference if

presented at trial. The court therefore denied Ford’s motion for a new trial.

II. D iscussion

The Due Process Clause of the Fifth Amendment requires the prosecution

to disclose all evidence that favors the defendant and “is material either to guilt or

to punishment.” United States v. Robinson, 39 F.3d 1115, 1118 (10th Cir. 1994)

(quoting Brady, 373 U.S. at 87). This duty extends to investigators assisting the

prosecution. See United States v. Velarde, 485 F.3d 553, 559 (10th Cir. 2007).

Accordingly, a defendant may base a Brady claim on an investigator’s

alleged failure to disclose material evidence, even when the prosecutor did not

know of the evidence. Id. Because Ford is alleging a Brady violation, we review

de novo the district court’s denial of his motion for a new trial. Id. at 558 (citing

United States v. Pearl, 324 F.3d 1210, 1215 (10th Cir. 2003)).

A defendant who seeks a new trial based on an alleged Brady violation

must show by a preponderance of the evidence that “(1) the prosecution

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suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the

evidence was material.” Id. at 558 (quoting United States v. Quintanilla, 193 F.3d

1139, 1149 & n.10 (10th Cir.1999)). For the evidence to be material, there must

be “a reasonable probability that the result of the trial would have been different

if the suppressed documents had been disclosed to the defense.” Strickler v.

Greene, 527 U.S. 263, 289 (1999) (internal quotation omitted). “The question is

not whether the defendant would more likely than not have received a different

verdict with the evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence.” Kyles v.

Whitley, 514 U.S. 419, 434 (1995).

In this case, we must decide whether the undisclosed evidence was material

to Ford’s entrapment defense. The government has the burden of proving beyond

a reasonable doubt that the defendant was not entrapped. United States v.

Nguyen, 413 F.3d 1170, 1178 (10th Cir. 2005). The government entraps a

defendant when (1) it induces the defendant to commit the offense, and (2) the

defendant is not predisposed to commit the offense. Id.; see also Jury Instruction

No. 22, Aplt. Reply Br., Attach. 1. Even though the government has the burden

of proving the defendant was not entrapped, both “elements [are] required to find

entrapment.” United States v. Young, 954 F.2d 614, 616 (10th Cir. 1992). W hile

“[t]he two elements of entrapment are closely related and often the same evidence

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and arguments will speak to both elements,” id., if the government disproves

either element then the entrapment defense will fail.

Under the first element, the government induces the defendant when it

engages in “conduct which creates a substantial risk that an undisposed person or

otherwise law-abiding citizen would commit the offense.” Nguyen, 413 F.3d at

1178. “Simple evidence that a government agent solicited, requested, or

approached the defendant to engage in criminal conduct, standing alone, is

insufficient to constitute inducement.” Id. (internal quotation marks omitted).

Under the second element, predisposition exists if the defendant has an

“inclination to engage in the illegal activity for which he has been charged, i.e.,

that he is ready and willing to commit the crime.” Id.

Even if a defendant was entrapped in one transaction, we do not

automatically assume all subsequent transactions between the government agent

and defendant are tainted. W e have “explicitly refused to adopt as a general rule

that once entrapment occurs, a defendant’s subsequent willing acts are immunized

from culpability.” Id. at 1180 (internal quotation marks omitted).

Although the government did not produce three emails favorable to Ford’s

entrapment defense, we agree with the district court that the evidence did not

meet the materiality element required for a new trial.

A. The G overnm ent F ailed to D isclose F avorable E vidence

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 To establish a Brady violation, the defendant must first show the

government failed to disclose favorable evidence. The defendant does not have to

establish bad faith.1 0 United States v. Hernandez-M uniz, 170 F.3d 1007, 1010–11

(10th Cir. 1999).

The Early October Email

The existence of the first missing email is based on a responsive email Ford

sent on October 5, 2005. In this email, Ford stated the following:

Just returned from out of town. Social sounds good. I’ll call you
and set something up over next couple of days. Not any good
computer deals out there right now. I think rising costs are to blame.
Just keep watching the big store ad’s [sic] for a sale.

Should be able to call in the next couple of days.

R., Vol. I, Doc. 179 at 16. The district court concluded from this text that Ford

was replying to an email previously sent by Heavilin asking if any more machine

guns were available. The existence of the email is also reinforced by the

transcript of an October 18, 2005 telephone conversation between Ford and

Heavilin. In this conversation, Heavilin indicated he had earlier sent Ford an

email message about purchasing a third machine gun. Heavilin told Ford, “And

that’s kind of why I emailed and said give me a clue.” R., Vol. I, Doc. 196 at 9.

10
On this record, no one points to bad faith by the government.

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 The district court also properly concluded the email supported Ford’s

entrapment defense because it established an additional contact initiated by a

government informant. This additional contact, therefore, supports Ford’s theory

that the government’s persistence is the reason he committed the crime.

The Late October Emails

Ford obtained the undisclosed October 28 email from Heavilin’s Yahoo

account. In the email, Ford told Heavilin:

nothing at this time. I don’t expect to find a special on a computer
this close to christmas [sic]. Too much demand for a good sale. Just
keep watching the newspaper ad’s [sic]. I am still watching.

R., Vol. I, Doc. 196, at 14. Based on the text of this email, the district court

convincingly concluded that an earlier email must have existed in which Heavilin

asked Ford if any machine guns were currently available.

The district court also properly concluded both emails would have been

favorable to Ford’s defense because they further supported his argument that

Heavilin’s persistence was the reason Ford committed the crime.

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 B. The U ndisclosed E m ails W ere N ot M aterial

For the evidence to be material, there must be “a reasonable probability that

the result of the trial would have been different if the suppressed documents had

been disclosed to the defense.” Strickler, 527 U.S. at 289 (1999) (internal

quotation omitted). W hen reviewing materiality for Brady purposes, we are

mindful of the Supreme Court’s admonition not to look for “ample, independent

evidence of guilt” or “evidence sufficient to support the [jury’s] findings.”

Strickler, 527 U.S. at 290. Rather, we look to whether “the favorable evidence

could reasonably be taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Kyles, 514 U.S. at 435. accord Strickler,

572 U.S. at 290; Banks v. Reynolds, 54 F.3d 1508, 1518 (10th Cir. 1995).

1.

In attempting to prove entrapment, the defendant’s central piece of

evidence was an exhibit highlighting the number of times Heavilin contacted

Ford. As the defense explained in closing,

This is the exhibit that you have seen, at least the first page, you
have seen it a lot. But what you need to focus on for a minute is the
sheer number of contacts initiated by Keith Heavilin. . . . That is call
after call, meeting after meeting, for one purpose only; to make him
think you are a friend, and to persuade or talk him into selling you an
automatic weapon.

R., Vol. XV at 1832–33.

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 The exhibit showed over a hundred contacts between Ford and Heavilin

during the course of their dealings. From the first contact at the gun show to the

first machine gun transaction, Heavilin initiated contact with Ford forty-three

times, with a total of fifty-nine contacts. Between the first and second

transaction, Heavilin initiated contact eighteen times, for a total of twenty-five

communications.

Between the second and third sale, the exhibit identified twelve more

contacts initiated by Heavilin, with a total of nineteen interactions. If the missing

emails had been disclosed to the defense, the exhibit could have shown two

additional contacts initiated by Heavilin, and one more by Ford. 1 1

W e agree with the district court there was not a reasonable probability that

this additional evidence would have changed the outcome of the trial, especially

in light of the strong evidence undermining Ford’s entrapment defense for the

third sale. Based on a holistic review of the evidence, we are confident the jury

would not have reached a different result if the government had satisfied its

Brady obligations. 1 2

11
W e note the jury could have concluded the existence of the early
October email because Heavilin mentioned it in the October 18 conversation,
which the jury heard a recording of. See supra Part II.A.
12
Although the dissent contends we shortchanged some of the evidence
offered by the defense, we have conducted a review of the entire record,
considered all of the evidence— including every portion of the record highlighted
(continued...)

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 Ford’s entrapment defense required the jury to determine if Ford was

predisposed towards possessing or transferring the weapon in question. “The

defendant’s lack of [] predisposition is the crux of the entrapment defense.”

United States v. Fadel, 844 F.2d 1425, 1429 (10th Cir. 1988). Predisposition is

the “defendant’s inclination to engage in the illegal activity for which he has been

charged.” United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986).

Predisposition may be inferred from the “defendant’s desire for profit, his

eagerness to participate in the transaction, his ready response to the government’s

. . . offer, or his demonstrated knowledge or experience in the criminal activity

under investigation.” United States v. M endoza-Salgado, 964 F.2d 993, 1002–03

(10th Cir. 1992) (internal quotation omitted).

For the following five reasons, we conclude the suppressed evidence does

not cast sufficient doubt on the outcome to be material for Brady purposes.

Evidence before the jury demonstrates Ford was predisposed toward possessing or

transferring the fully automatic AR-15 machine gun. The suppressed evidence

simply does not undermine the probability of the jury’s conclusion, and thus

cannot be found material in this case.

12
(...continued)
by the dissent— not in isolation but as a whole. W e focus on the cited evidence in
large part because this evidence supports our confidence that the jury’s verdict is
worthy of confidence.

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 First. The evidence suggests Ford was eager to sell Heavilin a third

machine gun, despite diminished pressure from Heavilin. Heavilin told Ford on

November 17 that a dealer in Colorado Springs might be willing to sell him a

machine gun. Because Heavilin told Ford another dealer was available, the

pressure on Ford to procure a third machine gun had been substantially reduced.

But instead of acting relieved, Ford decided to complete the sale. Ford called

Heavilin two days later and told him he found a third machine gun. Because Ford

reinitiated contact with Heavilin after the November 17 discussion, when Ford

was told Heavilin could buy the machine gun elsewhere, this phone call suggests

Ford was ready and willing to engage in the illicit transaction.

Second. Ford insisted on completing the third transaction despite Heavilin

repeatedly telling him he did not need to. W hen they met on October 18, 2005,

and discussed another sale, Heavilin told Ford that he is “going to leave the

decisions up to him.” R., Vol. X at 6. Heavilin explained at trial that he was

referring to “whether [Ford] is able to do it safely without getting in trouble or

any complications on his part. . . . If he doesn’t want to do it, get out of it.” Id.

Later in the October 18 conversation, Heavilin also told Ford “if it isn’t safe,

screw it.” Id.

And unlike the prior sales, when they met for the gun and money exchange

on November 21, Ford initially gave Heavilin a decoy machine gun. W hen the

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sale did not result in the immediate appearance of law enforcement officers, Ford

told Heavilin that the gun was actually a fake; he wanted to make sure police

were not monitoring the transaction. Heavilin then told Ford he did not need to

complete the transaction if he was worried. Ford insisted they go ahead and

complete the sale, met Heavilin at a second location, and gave Heavilin the real

gun. Ford’s careful planning and his insistence on finalizing the transaction

supports the prosecution’s argument that Ford was predisposed toward

committing the crime.

Third. The evidence shows for the first time Ford thought he would make a

“decent” profit from selling a machine gun. As he testified, the third sale “was

the first one I was actually going to make a decent profit on.” R., Vol. XIV at 37.

Ford agreed to pay his dealer $5,000 for the gun and then charged Heavilin

$5,400. This testimony about the third transaction suggests Ford was predisposed

toward completing the last sale, even if he was induced to commit the previous

two. See M endoza-Salgado, 964 F.2d at 1002–03 (explaining that the defendant’s

desire for profit from an illicit transaction supports an inference that he was

predisposed to committing the crime).

Fourth. The nature of the contacts between the first two sales and the third

sale is significant. By the time the third sale occurred, however, any previous

entrapping influence exerted by the government had dissipated. In contrast to the

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first two sales where the jury found that Ford was entrapped, fewer contacts were

made before the third sale where the jury did not find entrapment. And we agree

with the district court that the substance of Ford’s October 5 email shows he was

responding to Heavilin’s request for a gun, thus allowing Ford to convincingly

argue the government initiated the idea of the third sale. The additional email

contacts for the third sale would not have substantially changed the picture before

the jury.

Fifth. The government produced evidence indicating Ford possessed the

fully automatic AR-15, long before Heavilin asked to buy it. To prevail on the

third sale and overcome Ford’s entrapment defense, the government only needed

to prove Ford knowingly possessed or transferred this weapon. See 18 U.S.C.

§ 922(o); see also Jury Instruction No. 17 (“Defendant is charged in Count 3 of

the Indictment with a violation of 18 U.S.C. § 922(o), which makes it a crime to

knowingly transfer or knowingly possess a machine gun.”). If the fully automatic

AR-15 had been part of Ford’s collection before Heavilin asked him to procure it,

then the jury would be free to find that Ford could not have been entrapped; he

already illegally possessed the weapon, regardless of the eventual transfer.

Ford’s co-worker Hee testified that in 2003 the two of them visited a cabin

owned by Ford. Ford brought the fully automatic AR-15 to the cabin, and they

took turns shooting it at targets. Hee also testified that while he was visiting

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Ford’s house in M ay 2005, Ford again showed him the AR-15. Hee insisted the

gun he shot in 2003 and saw in Ford’s residence in M ay 2005 was the same

weapon Ford sold to Heavilin on November 21, 2005. 1 3

In addition, two investigators who interviewed Ford after he was arrested

also testified that Ford admitted he had possessed the AR-15 for an extended

period of time, before selling it to Heavilin. Detective W illiam Gallegos said

Ford told him he had owned the weapon and had previously fired it. Similarly,

FBI agent Brian Schmitt testified Ford had admitted that he had owned the

weapon for a long time.

Rick Tarvin, an acquaintance of Ford, also testified that he had never sold

Ford an AR-15 or any other machine gun. This evidence is significant because

Ford claims Tarvin sold him part of the machine gun just a few days before he

resold the weapon to Heavilin.

13
The dissent highlights how Hee testified that in M ay 2005 he saw both
the third machine gun and the second machine gun, and thus the jury “was plainly
free not to [convict]” for the second transaction on account of this evidence, and
thus the dissent reasons, the “materially identical” evidence as to the third
transaction also would not support entrapment. Dissent at 21 n.9. However, the
evidence supporting possession for the third machine gun was not materially
identical, as Hee’s testimony showed he had both longer and more significant
contact with the third machine gun. Hee not only saw Ford possess the third gun
two years prior to the transaction, he also fired the third gun in full automatic
mode.

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 In its closing statement, the government repeatedly emphasized this

evidence indicating Ford had illegally possessed the AR-15 long before Heavilin

asked him to procure the weapon. To be sure, Ford’s counsel contested this

testimony in the closing statement, arguing all of the government’s witnesses

were not credible on this point.

In light of the strong evidence undermining Ford’s entrapment defense for

the November 21 transaction, we conclude there is not a reasonable probability

that the three undisclosed emails would have changed the outcome of the trial.

2.

Ford nonetheless makes three arguments supporting his claim that the case

was a close one, and therefore any additional evidence of entrapment might have

made a difference.

(1) Ford first points to the contents of the emails. He contends the emails

are material to his entrapment defense because they show that (a) the idea for the

third gun transaction came from Heavilin, (b) Ford was reluctant to sell Heavilin

the gun, and (c) Heavilin repeatedly urged him to commit the crime. W e disagree,

and conclude the contents of the emails are not material.

First, Ford argues that the jury might have misinterpreted the October 5,

2005 email as suggesting the idea for the third sale originated from Ford. As the

argument goes, the pre-October 5 email is material because it would have

-24-
definitively shown the idea for the third sale came from Heavilin. But Ford never

used the October 5 email to cross-examine Heavilin or to establish that he was

responding to one of Heavilin’s earlier requests (by email or phone) for a gun. In

this light, it is hard to place great weight on the exact wording of the email since

the parties did not do so at trial. W e thus agree with the district court that the

content of this undisclosed email was not material to Ford’s entrapment defense

because the jury could only conclude that “Heavilin raised and discussed the

subject of a third machine gun” and thus positioned Ford “to argue as he did at

trial that the idea and impetus for a third machine gun was Heavilin’s.” Dist.

Order at 14. And in any event, the origination of the idea for the third transaction

is not dispositive of the overall predisposition question. Even assuming the

government first approached Ford regarding a third sale, it could still rebut the

entrapment defense by other evidence of predisposition. See generally United

States v. M endoza-Salgado, 964 F.2d 993, 1002–03 (10th Cir. 1992).

Even so, the government did not repeatedly urge the jury to conclude that

Ford originated the idea for the third weapon transaction in the October 5 email.

For example, in its closing arguments, the government never suggested the idea for

the third transaction originated with Ford rather than Heavilin. 1 4 Also, the absence

14
The government made a brief reference in opening statement which may
have suggested that Ford initiated the idea for the third sale. R., Vol. VIII at 170.
(continued...)

-25-
of the pre-October 5 email did not prevent Ford from arguing that the idea for the

third transaction originated with Heavilin, an argument he in fact did pursue, Dist.

Order. at 11. Thus, we agree with the district court that while the government may

have “contended that there was no entrapment [] because the idea and impetus for

the third illegal weapon came from defendant,” Dist. Order at 3, we also agree

with the district court that the pre-October 5 email “is not material, but instead, is

largely cumulative.” Id. at 14. 1 5

Furthermore, the jury also heard of evidence after the October 5

communication indicating the idea for the last transaction was raised by Heavilin.

The jury heard the audio of an October 18, 2005 conversation, in which Heavilin

tells Ford he would like to purchase a third machine gun. 1 6 In cross-examination,

14
(...continued)
That fleeting suggestion was not raised in closing argument, and we see no other
clear reference to the government pursuing the argument during trial, let alone a
repeated suggestion.
15
To clarify, highlighting the government’s lack of emphasis at trial on
Ford initiating the third transaction, does not impugn the district court’s findings.
Dissent at 13 n.4. W e are in agreement: the government did argue (albeit briefly)
that Ford initiated the transaction, Ford repeatedly claimed Heavilin initiated the
transaction, and thus the pre-October 5 email would have been favorable, but not
material. W e, like the district court, “cannot say that the admission of Heavilin’s
missing e-mail might have affected the outcome of the trial.” Dist. Order at 14.
16
In this conversation, Heavilin also briefly references an email he
previously sent to Ford asking if a third machine gun was available, so the jury
would have been aware of prior email traffic. See R., Vol. I, Doc. 196 at 9. This
evidence further suggests the idea for the transfer originated with Heavilin.

-26-
Heavilin admitted he initiated the discussion of the weapon in the October 18

meeting. Defense counsel asked Heavilin, “And you tell [Ford] at that point about

your desire to have a third weapon and how you got the money ready this time,

right?” Heavilin responded, “Yes, sir.” R., Vol. X at 74. 1 7 In sum, the email is

not material and does not undermine our confidence in the jury’s conclusion that

Ford was predisposed to commit the crime.

W e also reject Ford’s argument that the undisclosed October 28 email

provided material evidence showing he was reluctant to sell Heavilin the third

machine gun. In the email, Ford tells Heavilin that no weapons were currently

available. Ford’s claims about the importance of this evidence are not persuasive

because the content of the email was largely cumulative. At trial, Ford was able to

present unrebutted evidence showing that on October 18 and November 17 he told

Heavilin that no machine guns were currently available.

A close look at the October 28 email, furthermore, shows only weak support

for Ford’s claim that he was reluctant to procure the weapon. In the email, Ford

said he was currently unable to procure the machine gun. He did not state or

17
In light of this cross-examination, the dissent’s citation of Heavilin’s
direct examination about the October 18 conversation as evidence that the
government “repeatedly argued that the evidence proved M r. Ford instigated the
discussions about a third gun sale,” Dissent at 5, is overly generous. The October
18 discussion did not show, and was not argued to show, that Ford initiated the
third sale.

-27-
suggest he was unwilling. In fact, Ford tells Heavilin that he is “still watching”

for an available weapon. R., Vol. I, Doc. 196 at 14. At best, the email cuts both

ways for Ford.

Finally, we reject the contention that the emails provided material evidence

showing Heavilin repeatedly pressured him to commit the crime. Out of the

twelve communications initiated by Heavilin leading up to the last transaction, two

more emails do not add up to much more. M oreover, nothing in the record

suggests Heavilin had more aggressively asked Ford about the machine guns in the

pre-October 5 and pre-October 28 emails compared to the communications before

the jury. 1 8

In sum, we conclude the contents of the undisclosed emails were not

sufficiently material to cast doubt on the jury’s verdict. 1 9

18
In fact, the content of Ford and Heavilin’s emails were not a big selling
point at trial. Not all of the emails are contained in the record on appeal, and the
ones that are supplied are relatively benign: they show that Heavilin and Ford
used the email traffic primarily to keep communications open and to set the stage
for subsequent phone calls and meetings where the parties conducted their
business.
19
Ford also argues the government used the undisclosed emails against
him by suggesting he was lying about the existence of additional emails. In
support of this argument, Ford cites the following passage from the government’s
rebuttal closing argument:

And what you understand as the jury, I am sure, is that the defense
has access to the same information that the government does, and
despite the defendant’s counsel telling you that the defendant was not
(continued...)

-28-
 (2) Second, Ford emphasizes that the jury acquitted him of the first two

sales, suggesting the evidence supporting his conviction on the third count was

weak. But as we have already explained, substantially different circumstances

existed between the November 21 sale and the prior two sales. Acquittal on the

first two counts, therefore, does not imply that the evidence supporting the third

count was weak. See Nguyen, 413 F.3d at 1181.

(3) Finally, Ford suggests the case was close based on the fact that the jury

took a day and half to deliberate, asked the judge certain questions about the

evidence, and asked to see certain trial exhibits corroborating Ford’s testimony.

But this fact does nothing to show which counts, if any, concerned the jury. W e

can only speculate whether the jury had any concerns in particular about the

quality of the evidence for the third count.

19
(...continued)
willing to possess and sell machine guns, where is it? W here does he
say that?

R., Vol. XV at 194.

In this passage, however, the prosecutor was not referring to emails or any
other specific evidence. Instead, the prosecutor was merely arguing that the
overall record indicates Ford was predisposed toward possessing and selling
machine guns. As explained above, the presence of two more emails from
Heavilin would not have materially undermined the strength of the government’s
case.

-29-
 In sum, in light of the strong evidence that Ford was predisposed to

possessing the third machine gun and selling it to Heavilin, we conclude the three

non-disclosed emails were not material to Ford’s defense.

III. C onclusion

Because Ford failed to establish a Brady violation, the district court did not

err in denying Ford’s motion for a new trial. Therefore, we AFFIRM the district

court’s denial of Ford’s request for a new trial.

-30-
07-1176, United States v. Ford
PA R K ER , Senior District Judge, concurring:

I agree with Judge Tym kovich’s thorough analysis of the cum ulative nature

of the em ail evidence that was not m ade available to the jury. I concur in his

conclusion that the three em ails undisclosed to the jury were not sufficiently

m aterial to the Defendant’s entrapm ent defense to underm ine confidence in the

jury’s verdict of guilty on Count 3. This affirm s the conclusion of the trial judge

who personally observed the presentation to the jury of evidence of m ore than one

hundred com m unications between undercover agent Keith Heavilin and Defendant

Ford. I write in concurrence to em phasize Judge Tym kovich’s fifth reason for

concluding that the evidence presented to the jury convincingly dem onstrated that

the Defendant was predisposed to possess the illegal, fully autom atic Olym pic

Arm s AR-15 m achine gun (“AR-15") which was the subject of Count 3.

As Judge Tym kovich noted, Count 3 charged Defendant with violating 18

U.S.C. § 922(o) by knowingly transferring or know ingly possessing a m achine

gun.

At trial, the governm ent presented to the jury evidence that Defendant

possessed the AR-15 as far back as 2003 or earlier, long before Defendant m et

Agent Heavilin. The evidence is undisputed that Heavilin and Defendant first m et

on February 7, 2004.

The governm ent’s witness Jam es Hee gave the following testim ony before

the jury. Hee m et the Defendant in 1999 in a firefighter training academ y and they
developed a very strong friendship. Hee stayed in Defendant’s hom e on visits

during 2001 and 2002 and Hee invited Defendant to stay at Hee’s hom e. In 2003,

Hee saw a num ber of weapons, including the AR-15, while visiting Defendant at

his hom e. Som etim e later during 2003, Hee accom panied Defendant to

Defendant’s cabin where Defendant fired the AR-15 “a little bit” and then allowed

Hee to “take a few shots with it . . .” See R. Vol. XI at 17. The AR-15 fired in a

fully autom atic fashion.

Hee felt very close to the Defendant and considered Defendant alm ost a

blood brother because they both were firem en. In 2003, Hee grew concerned

because Defendant’s behavior and dem eanor changed after Septem ber 11 and

Defendant became “paranoid” and worried about the country’s security. See R.

Vol. X at 225; Vol. XI at 9. Defendant gave Hee a list of m ilitary equipm ent with

“nom enclature” that “regular people” should not “have access to” causing Hee to

be suspicious of Defendant’s activities. See R. Vol. X at 226-227. Hee’s worries

heightened when Defendant wanted to find out “if they were going to declare

m arshal law and disarm us . . .” See R. Vol. X at 228. The list of m ilitary

equipm ent that Defendant had given Hee m ade Hee nervous enough to take action,

but because Defendant was Hee’s good friend and Hee did not want to get

Defendant in trouble, instead of contacting the local police Hee reported

Defendant’s list to another firefighter who was affiliated with law enforcem ent

through arson investigation services.

-2-
 Eventually the Federal Bureau of Investigation (“FBI”) contacted Hee who

told the FBI about Defendant’s weapons, which were placed on a list dated

February 5, 2004 that was shown to the jury (Governm ent’s Exhibit 64). The list

included the AR-15. Significantly, the list bears a date of February 5, 2004 – two

days before undercover agent Heavilin first contacted Defendant on February 7,

2004. This docum entary evidence corroborates Hee’s testim ony that Defendant

had possessed the AR-15 before Defendant first m et Heavilin who, therefore,

could not have entrapped Defendant by inducing Defendant to gain possession of

the AR-15.

Further corroboration of M r. Hee’s testimony was provided by two law

enforcem ent witnesses. W illiam Gallegos, a detective in the Intelligence Bureau

of the Denver Police Departm ent, interviewed the Defendant. During the

interview, Defendant said that the AR-15 was “a weapon he had had for som e tim e

. . .” See R. Vol. XI at 146. In addition, Defendant adm itted to Detective

Gallegos that Defendant had fired the AR-15 “at som e point in tim e.” See R. Vol.

XI at 147.

Brian Schm itt, a special agent with the FBI, also interviewed the Defendant.

Agent Schm itt testified the Defendant told him “he had had this weapon for a long

tim e. It was in two pieces. If the two pieces were put together, it would fire fully

autom atic, and that he had shot this weapon on several occasions.” See R. Vol. XI

at 189. Agent Schm itt further testified that Defendant “made a comm ent to the

-3-
extent that he knew it was wrong to have it, he knew it was wrong to sell it, but he

did it anyway.” See R. Vol. XI at 190.

In jury instruction num ber 17, the trial judge carefully instructed the jury

that Defendant was charged in Count 3 with a violation of 18 U.S.C. § 922(o),

which m akes it a crim e to knowingly transfer or know ingly possess a m achine

gun; that the governm ent m ust prove beyond a reasonable doubt the Defendant

knowingly transferred or know ingly possessed the AR-15; and that Defendant

knew the firearm he transferred or possessed was a machine gun. The judge then

instructed the jury that if the governm ent proved the essential elem ents beyond a

reasonable doubt, the jury should find Defendant guilty of knowingly transferring

or know ingly possessing a m achine gun as charged in Count 3 but that if any

essential element was not proven beyond a reasonable doubt, then the jury should

find defendant not guilty of knowingly transferring or know ingly possessing a

m achine gun as charged in Count 3.

In a separate verdict form pertaining to Count 3, the trial judge repeated the

alternative grounds for conviction:

-4-
 “V E R D IC T FO R M – C O U N T 3

W e, the jury, on our oaths, unanim ously find defendant, STAN

TARAN FORD, as to the crim e of knowingly transferring or

know ingly possessing a m achine gun, as charged in Count 3 of the

Indictm ent, the essential elem ents of which are set forth in

Instruction No. 17:

_____ Not Guilty

__X___ Guilty”

(Em phasis supplied).

The Suprem e Court of the United States, in a case where there were

alternative statutory grounds for a guilty verdict, unanim ously 1 held that “a

general jury verdict was valid so long as it was legally supportable on one of the

subm itted grounds – even though that gave no assurance that a valid ground,

rather than an invalid one, was actually the basis for the jury’s action.” Griffin v.

United States, 502 U.S. 46, 49 (1991).

The Tenth Circuit has followed the rule in Griffin multiple times. See,

e.g., United States v. Haber, 251 F.3d 881, 889 (10th Cir. 2001) (stating that

although jury unanimity issue was not properly preserved for appeal, it would

1
Seven justices joined in the majority opinion authored by Justice Scalia;
Justice Blackmun wrote a concurring opinion; Justice Thomas took no part in the
decision.

-5-
nevertheless affirm a general verdict in which court instructed jury that it could

find defendant guilty of mail fraud based upon either a scheme to defraud or a

scheme to obtain money by false pretenses); United States v. Vaziri,164 F.3d 556,

566 (10th Cir. 1999) (upholding general verdict on one count of the indictment,

which charged a multiple-object conspiracy involving LSD, methamphetamine,

cocaine, and marijuana even though evidence did not support each object of

conspiracy); United States v. Bell, 154 F.3d 1205, 1209 (10th Cir. 1998)

(upholding general verdict on count alleging conspiracy to distribute cocaine and

crack cocaine even though evidence supported only distribution of crack cocaine);

United States v. Linn, 31 F.3d 987 (10th Cir. 1994) (upholding general verdict on

count alleging conspiracy to commit arson, mail fraud, wire fraud, and money

laundering even though evidence did not support all theories). Recently, in

United States v. Vigil, 523 F.3d 1258 (10th Cir. 2008), this Court affirmed a

holding by the United States District Court for the District of New M exico that

expressly followed Griffin. See United States v. Vigil, 478 F. Supp.2d 1285, 1302

(D.N.M . 2007) (Defendant convicted of attempted extortion either by wrongful

use of actual or threatened fear, or under color of official right), aff’d on other

grounds, 523 F.3d 1258 (10th Cir. 2008). The jury had ample evidence from

which it could have determined in regard to Count 3 that Defendant Ford

possessed the AR-15 before he first met undercover agent Heavilin. In that

-6-
circumstance, Defendant’s entrapment defense would have had no application to

Defendant’s illegal possession of the AR-15; the jury could have convicted the

Defendant under Count 3 on the ground of possession without even having to

consider whether undercover agent Heavilin entrapped Defendant with respect to

the sale of the AR-15. The jury’s verdict on Count 3 is therefore supportable on

the ground of possession even if it were invalid with respect to the ground of

transfer of the AR-15, although I believe the general jury verdict was valid as to

either ground. This is a strong reason, in addition to the missing evidence being

cumulative in nature, to have confidence in the jury’s verdict.

-7-
07-1176, United States v. Ford
G O R SU C H , J., Circuit Judge, dissenting

Stan Ford, a Denver firefighter, had no criminal record and no known

involvement with illegal firearms until an undercover government agent, Keith

Heavilin, approached M r. Ford and repeatedly solicited his assistance in procuring

illegal weapons. Eventually, M r. Ford obtained three such weapons and sold

them to M r. Heavilin. At trial, the jury acquitted M r. Ford in connection with the

first two sales, finding that he was entrapped by the government’s agent. In

connection with the third sale, the jury convicted M r. Ford. But the jury

convicted on this count only after the government argued that, whatever else the

evidence at trial suggested, it definitively established that the idea for the third

gun sale originated with M r. Ford, not the government’s agent.

W e now know the government’s critical representation to the jury at trial

about the initiation of the third gun sale was in error. The suppressed pre-October

51 email definitively shows that M r. Heavilin conceived and heavily promoted the

idea of a third transaction, just as he had the two previous gun sales for which M r.

Ford was acquitted. For this reason, and while I agree with much else in the

court’s thoughtful analysis, I cannot help but conclude that the suppressed pre-

1
W e do not know the date of this email except that it was sent before
October 5. I follow the court’s convention in referring to this email as the “pre-
October 5” email.
October 5 email was material to M r. Ford’s entrapment defense. Accordingly, I

would reverse and remand this matter for a new trial on count 3.

I

Brady v. M aryland, 373 U.S. 83 (1963), recognized that, for a trial to be

worthy of our judicial system, the accused must have access to all material

exculpatory evidence in the government’s possession. “A prosecution that

withholds evidence on demand of an accused which, if made available, would

tend to exculpate him . . . casts the prosecutor in the role of an architect of a

proceeding that does not comport with standards of justice.” Id. at 87-88. Such a

prosecution is also inconsistent with the role of the government lawyer in our

legal system. To be sure, the prosecutor “is not a neutral, he is an advocate; but

an advocate for a client whose business is not merely to prevail in the instant

case. [The government’s] chief business is not to achieve victory but to establish

justice. . . . [and] the Government wins its point when justice is done in its

courts.” Id. at 88 n.2 (quoting an address of former Judge and Solicitor General

Simon E. Sobeloff).

To establish a violation of the due process imperative embodied in Brady, a

criminal defendant need not prove any malicious intent on the part of the

prosecution in suppressing evidence. Id. at 87. Rather, a defendant must

demonstrate simply that “(1) the prosecution suppressed evidence, (2) the

-2-
evidence was favorable to defendant, and (3) the evidence was material.” United

States v. Quintanilla, 193 F.3d 1139, 1149 (10th Cir. 1999). The court today

concludes that M r. Ford has satisfied the first two essential elements of a Brady

claim, and I agree. M aj. Op. at 14-16. There is no dispute that the government

failed to produce the pre-October 5 email at trial, and neither is there any question

that the email was favorable to M r. Ford, showing as it does that M r. Heavilin,

not M r. Ford, initiated discussions about a third gun sale. As the district court

found, the pre-October 5 email “corroborate[s] [M r. Ford’s] claim that the idea

and impetus for the third illegal machine gun was broached and pursued by [M r.]

Heavilin, not the defendant, and . . . [goes] to credibility because to some extent

[it] contradicted [M r.] Heavilin’s and Agent Schmitt’s testimony that the idea and

opportunity for the third machine gun came from defendant ‘out of the blue.’”

Dist. Ct. Op. at 11.

The only real question before us is whether the suppressed pre-October 5

email was material to M r. Ford’s defense. W e review this question de novo.

United States v. Smith, 534 F.3d 1211, 1221-22 (10th Cir. 2008); United States v.

Redcorn, 528 F.3d 727, 744 (10th Cir. 2008). And in doing so, we ask whether

there is “a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” United States v.

Bagley, 473 U.S. 667, 681-82 (1985). In turn, a “reasonable probability” is

-3-
understood to mean a “probability sufficient to undermine confidence in the

outcome.” Id. at 682. This inquiry “does not require demonstration by a

preponderance that disclosure of the suppressed evidence would have resulted

ultimately in the defendant’s acquittal.” Kyles v. Whitley, 514 U.S. 419, 434

(1995). Instead, the touchstone is simply whether the ultimate verdict is one

“worthy of confidence.” Strickler v. Greene, 527 U.S. 263, 290 (1999).

Though reluctant to part ways with my colleagues, I am convinced the pre-

October 5 email was material based on the confluence of the following factors:

First, the suppressed exculpatory evidence is dispositive of what we have

repeatedly recognized to be the “central question” in entrapment cases. In order

to convict M r. Ford for his role in the third gun sale, the government had to prove

beyond a reasonable doubt that M r. Ford was not entrapped. See Jury Instruction

No. 17. As we have recognized is true in most cases raising the entrapment

defense, the “central question” before the jury in this trial was whether the

government or the defendant initiated the illegal activity. See United States v.

Dozal-Bencomo, 952 F.2d 1246, 1250 (10th Cir. 1991). The suppressed pre-

October 5 email definitively answers this central question, proving that it was the

government’s informant, not M r. Ford, who instigated the third gun sale. As the

district court explained, the suppressed email, in which M r. Heavilin “exhort[ed]

[M r. Ford] to locate and sell” the third gun, “corroborated [M r. Ford’s] claim that

-4-
the idea and impetus for the third illegal machine gun was broached and pursued

by [M r.] Heavilin.” Dist. Ct. Op. at 11.

Second, in the absence of the pre-October 5 email, the government at trial

was able to paint a gravely inaccurate picture on the central question before the

jury. The government submitted evidence to the jury suggesting that the idea for

a third weapon sale originated with M r. Ford, specifically an October 5 email

from M r. Ford in which he plainly appears to be promoting a third gun sale to M r.

Heavilin, indicating that there are “[n]ot any good [gun] deals out there right now.

. . . Just keep watching . . . .” See Dist. Ct. Op. at 13. The government also

repeatedly argued that the evidence proved M r. Ford instigated the discussions

about a third gun sale; as early as its opening statement the government told the

jury that, after the sale of the second gun on August 2, “[i] t is the defendant who

at that point comes back to M r. Heavilin, and leads us up to the date of October

18th of 2005.” R. Vol. VIII at 170 (emphasis added); see also R. Vol. IX at 171;

R. Vol. X at 4 (other instances of government pursuing this theory throughout

trial). The district court expressly found that, “[a]s to count three, . . . the

government contended that there was no entrapment by Heavilin because the idea

and impetus for the third illegal weapon came from defendant.” Dist. Ct. at 3; see

also id. at 11 (stating that the pre-October 5 email “contradicted Heavilin’s and

Agent Schmitt’s testimony that the idea and opportunity for the third machine gun

-5-
came from defendant ‘out of the blue.’”). W ith the benefit of the pre-October 5

email, we now know that the government’s evidence and argument at trial on the

central question before the jury was in error.

Third, the absence of the pre-October 5 email appears to answer why the

jury convicted M r. Ford on count 3 even after acquitting him on counts 1 and 2.

To carry its burden of showing M r. Ford was not entrapped, the government had

to establish one of three things – (1) the idea for the third gun transaction did not

originate with government agents; (2) the government agents did not persuade or

talk M r. Ford into committing the crime; or (3) M r. Ford was predisposed to

commit the crime. See Jury Instruction No. 22. W ith the exception of the pre-

October 5 email, the nature and quality of the evidence the government relied on

to carry its burden under these elements was materially identical across all three

counts. It was only on count 3, and only by virtue of its suppression of the pre-

October 5 email, that the government could plausibly suggest that M r. Ford

initiated the idea for a gun sale. On the record before us, then, it strongly appears

that, but for the suppression of the pre-October 5 email, the jury would have

acquitted M r. Ford on count 3 as well.

Fourth, not only did the government seek a conviction on the basis of an

evidentiary omission for which it was responsible, it expressly asked the jury to

draw an adverse inference about the defendant’s credibility – and thus the

-6-
reliability of his entire testimony – based on its own Brady failure. At trial, M r.

Ford took the stand and offered extensive testimony in his defense. In the course

of his testimony, as the government concedes, M r. Ford averred that it was M r.

Heavilin, not he, who initiated discussions over a third gun sale. See Appellee

Br. at 17 (“Defendant was . . . positioned to argue, as he did repeatedly and

forcefully at trial, that the idea and impetus for a third machine gun was [M r.]

Heavilin’s.”) (emphasis added). M r. Ford even went so far as to testify that the

government had failed to produce emails from M r. Heavilin that could confirm his

account. R. Vol. XIII at 101-102. The government responded in its closing

rebuttal argument by suggesting that M r. Ford’s credibility should be discounted

by the jury because – in contradiction to M r. Ford’s testimony – “the defense has

access to the same information that the government does.” R. Vol. XV at 194.

W e now know the government wrongly attacked M r. Ford’s credibility and did so

based on an evidentiary omission for which it bears responsibility.

Finally, we must be mindful that “[w]hat might be considered insignificant

evidence in a strong case might suffice to disturb an already questionable

verdict.” United States v. Robinson, 39 F.3d 1115, 1119 (10th Cir. 1994); see also

United States v. Agurs, 427 U.S. 97, 113 (1976) (stating with respect to Brady

violations that “if the verdict is already of questionable validity, additional

evidence of relatively minor importance might be sufficient to create a reasonable

-7-
doubt”). To be sure, this is not a case where the withheld evidence is

insignificant or minor. But neither can there be any question just how close this

case was. The jury apparently accepted M r. Ford’s entrapment defense on the

first two counts of possessing or transferring an automatic weapon, acquitting him

of both charges. The jury found M r. Ford guilty solely on count 3, and it reached

its decision only after one and a half days of deliberation, during which time it

sent a note to the court that stated jurors were divided over the question of

entrapment, R. Vol XVI at 11, and asked to be provided with transcripts of certain

witnesses’ testimonies, R. Vol. XVII at 6. And it appears that the jury’s ultimate

conviction on count 3 may well have been secured only as a result of the

government’s failure to produce the pre-October 5 email. These circumstances

testify to how narrow a thread the jury’s conviction on count 3 depended, how

hard the jury struggled with this case, and thus how cautious we must be in

suggesting that the suppressed email was immaterial.

Given the confluence of all the foregoing circumstances, I cannot help but

conclude that the jury’s guilty verdict on count 3 is not worthy of the confidence

of our legal system. This is not to say that M r. Ford is surely innocent. But it is

to say that he surely deserves a new trial, one in which he has access to, and the

right to make use of, the exculpatory evidence the government possesses. The

central promise of our criminal justice system is a trial based on all available and

-8-
competent evidence, not one based on the government’s best evidence. The

conviction before us, hanging on the barest of threads and dependent on the

omission of exculpatory evidence, is “inconsistent with the rudimentary demands

of justice.” Brady, 373 U.S. at 87 (internal quotation marks omitted).

Neither does it matter that the government’s failure to fulfill its Brady

obligations in this case was apparently the result of oversight rather than

deliberate mischief. The principle animating Brady and the promise of our legal

system is the “avoidance of an unfair trial to the accused.” Id. at 87. It is

foundational to our legal tradition that “[s]ociety wins not only when the guilty

are convicted but when criminal trials are fair; our system of the administration of

justice suffers when any accused is treated unfairly. An inscription on the walls

of the Department of Justice states the proposition candidly for the federal

domain: ‘The United States wins its point whenever justice is done its citizens in

the courts.’” Id. at 87-88. Regrettably, I cannot say that promise was fulfilled in

this case.

Underscoring my conviction on this score, the government has cited to us

no case affirming a conviction in the face of so many factors converging to call

its reliability into question. Neither have my colleagues cited any. M eanwhile,

our circuit and others have reversed for new trials in highly similar (and even

sometimes arguably less troubling) circumstances – including where, as here, the

-9-
suppressed evidence “b[ore] importantly on the central issue at trial”; the

prosecutor attacked the defendant’s credibility for testifying about facts the

government improperly withheld; and the jury “evidently struggl[ed]” with the

case. United States v. Gil, 297 F.3d 93, 103-04 (2d Cir. 2002); see also Kyles,

514 U.S. at 453-54 (finding materiality and reversing for new trial where

suppressed evidence could have gone, in part, to undermining the credibility of

key witnesses for the prosecution); Scott v. M ullin, 303 F.3d 1222, 1232 (10th

Cir. 2002) (finding materiality and reversing for new trial where government

withheld evidence that could have assisted the defense in undermining witnesses

for the prosecution); Nuckols v. Gibson, 233 F.3d 1261, 1266-67 (10th Cir. 2000)

(same); United States v. M insky, 963 F.2d 870, 875 (6th Cir. 1992) (same). I see

no basis for reaching a contrary result here.

II

The government and my colleagues suggest we need not be worried about

the fairness of this trial. Though the government suppressed the pre-October 5

email, and though it was evidence favorable to M r. Ford, the government and my

colleagues suggest that the email should be deemed “immaterial.” After careful

consideration of each of the arguments they advance for this conclusion, I am

unable to agree.

A

-10-
 The government argues that the pre-October 5 email, in its tendency to

show M r. Heavilin as the initiator of the third gun sale, was merely “cumulative”

of existing evidence. But this argument depends on a misconception of the term.

To qualify as cumulative, the evidence in question must be “[a]dditional evidence

that supports a fact established by existing evidence.” Black’s Law Dictionary

596 (8th ed.) (emphasis added). The term “suggests a needless redundancy,

especially where the additional evidence will result in ‘undue delay’ or ‘waste of

time.’ Redundancy, however, means that the additional information provides no

additional relevant data points to the jury, that they are forced to listen to

evidence that tells them nothing at all new.” United States v. Ramirez-Lopez, 315

F.3d 1143, 1173 (9th Cir. 2003) (Kozinski, J., dissenting) (citations omitted)

(emphasis added), majority opinion withdrawn, 327 F.3d 829 (2003).

The pre-October 5 email cannot remotely be characterized as a needless

redundancy. To be sure, the government stresses that the jury could have inferred

the existence of the pre-October 5 email from the email M r. Ford sent M r.

Heavilin on October 5. Appellee’s Br. at 16-17. And maybe this is so. The

problem remains, however, that, even if the jury could have reasonably inferred

the existence of a pre-October 5 email, the content of that email was impossible to

surmise. From the October 5 email, one arguably might be able to infer that the

parties had an earlier communication. But there is simply no way to divine that

-11-
the parties’ earlier communication was exculpatory in nature, showing that M r.

Heavilin initiated the idea for a third gun sale.

Notably, the government ultimately concedes as much, admitting that “the

content of [M r.] Heavilin’s omitted message is unknown,” and, indeed, that the

jury could well have thought that the pre-October 5 email contained only “a

suggestion by [M r.] Heavilin that the two men meet socially,” given “[M r.]

Heavilin’s penchant for beginning his communications with Defendant without

specifically mentioning his desire for a machine gun.” Id. at 5-6. In these

circumstances, the pre-October 5 email can hardly be fairly characterized as a

waste of time. It alone demonstrated that M r. Heavilin, not M r. Ford, initiated the

third gun sale. Far from cumulative, it was uniquely exculpatory.

B

The court and concurrence do not embrace the government’s “cumulative”

submission. Toward the end of its opinion, however, the court suggests that the

pre-October 5 email is cumulative for different reasons not pursued by the

government. M aj. Op. at 23-25.2 The court’s argument centers on the October 18

meeting between M r. Ford and M r. Heavilin in which M r. Heavilin expressed a

2
It is our general practice not to adduce arguments for represented parties
that they have not themselves raised at any stage in the proceedings, see, e.g.,
Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994), and the
court does not offer any reason for departing from our general practice in this
case.

-12-
desire to purchase a third weapon. From this meeting, the court reasons that, even

without the suppressed pre-October 5 email, the jury was free to infer that M r.

Heavilin instigated the third gun sale. M aj. Op. at 25-26.

It appears the government did not pursue this argument before us for a good

reason. The court’s citations to the record merely show that, at the October 18

meeting, M r. Heavilin said he wanted to purchase a third gun and was ready to

proceed; there is no evidence suggesting that the first discussion of a third gun

sale took place at the October 18 meeting. In fact, the jury heard that M r. Ford

and M r. Heavilin had at least seven contacts (excluding the suppressed emails)

after the second weapon sale and before the October 18 conversation. See Aplt.

Op. Br. Attachment 1 (Exhibit 11 at trial). The jury also had before it the October

5 email suggesting that the idea for a third gun sale originated with M r. Ford. See

Dist. Ct. Op. at 13.3 Simply put, without the suppressed pre-October 5 email, the

record leaves the unmistakable impression that the earliest contact between the

parties about a third gun sale was the October 5 email – an email which, without

the context of its predecessor, plainly (and erroneously) suggests M r. Ford

3
The court contends that we cannot “place great weight on the exact
wording” of the October 5 email in part because M r. Ford never used it “to cross-
examine Heavilin or to establish that he was responding to one of Heavilin’s
earlier requests (by email or phone) for a gun.” M aj. Op. at 24. But surely we
cannot fault a defendant for failing to highlight inculpatory evidence.

-13-
instigated the third sale. 4

C

Ultimately, my colleagues devote most of their effort to a different

argument, suggesting that, even if the government suppressed evidence showing

that M r. Ford did not initiate the idea for a third gun sale, other evidence before

the jury conclusively demonstrates M r. Ford’s predisposition to possess or

transfer a third gun. M aj. Op. at 19; Concurrence at 1. Because the government’s

evidence proves predisposition, my colleagues reason, any suppressed evidence

regarding initiation is immaterial.

I concur entirely with the premise on which this argument proceeds: the

4
The court agrees that the government argued to the jury that M r. Ford
initiated the third gun sale. See M aj. Op. at 25 & nn.17-18. But the court then
seeks to downplay the significance of this fact by suggesting the government’s
argument on this score was “fleeting” and “brief” and therefore evidence –
namely the suppressed pre-October 5 email – definitively and conclusively
proving the government wrong on this score is immaterial. Id. W ith respect for
my colleagues’ views, I cannot see how a piece of evidence that resolves a
“central question” of M r. Ford’s defense that was disputed at trial can be
immaterial as a matter of law. See supra Part I. Notably, too, neither the
government nor the district court has suggested affirmance would be appropriate
on the ground now offered by my colleagues. To the contrary, the district court
unreservedly found that the government argued and put on evidence seeking to
prove that M r. Ford initiated the third gun sale; I see no reason or authority
allowing us effectively to alter and effectively undo that finding. See Dist. Ct. at
3 (“As to count 3 . . . the government contended that there was no entrapment by
M r. Heavilin because the idea and impetus for the third illegal weapon came from
the defendant.”); id. at 11 (M r. Heavilin and Agent Schmitt testified that “the idea
and opportunity for the third machine gun came from the defendant ‘out of the
blue.’”).

-14-
government was free to disprove entrapment in three different ways, as

enumerated in Jury Instruction 22, and so could have succeeded by showing M r.

Ford was predisposed to engage in the charged crime, even if he did not initiate

conversations about it. See supra Section I (citing Jury Instruction 22).

Nonetheless, for the following reasons I am unable to agree with the conclusions

my colleagues reach from this shared premise.

1

Initiation and predisposition cannot be as neatly separated as the court’s

argument assumes. W hat is material to one is often material to the other. Under

our governing precedents, a defendant’s predisposition must be viewed “at the

time the government agent first approached the defendant.” United States v.

Garcia, 182 F.3d 1165, 1169 (10th Cir. 1999). Although “inferences” about

predisposition surely may be drawn from events occurring after the initial contact,

id., and the question of initiation is different from the question of predisposition,

we must assess predisposition in this case at the time when M r. Heavilin first

approached M r. Ford concerning the third gun sale. Given this, I do not see how

the undisclosed pre-October 5 email to M r. Ford, in which he “exhorted” M r.

Ford to find a third gun, could possibly be immaterial as a matter of law to a

proper analysis of M r. Ford’s predisposition at the time M r. Heavilin approached

him, even if it does not suffice standing alone to preclude predisposition.

-15-
Shifting focus to predisposition simply does not negate the materiality of the

suppressed email.

2

M y colleagues’ predisposition discussion focuses exclusively on the

government’s evidence on count 3. M aj. Op. at 19-23; Concurrence at 1-4. Yet,

there is considerable countervailing evidence in the record that my colleagues do

not mention, and they do not explain why they credit the government’s evidence

rather than the (unmentioned) evidence presented by the defense. Respectfully, I

believe proceeding in this fashion is inconsistent with our role in reviewing Brady

challenges.

To be sure, in considering the materiality of suppressed evidence in a Brady

challenge, we may not ignore evidence suggesting a defendant’s guilt. But what

we also may not do is asymmetrically scan the trial record for signs that the

defendant is guilty. A Brady challenge is not, and should not be confused with, a

sufficiency of the evidence challenge – a point the Supreme Court has repeatedly

underscored. See Kyles, 514 U.S. at 434-35. In a Brady challenge our obligation

is to determine whether the verdict is worthy of the confidence of the judicial

system in light of the suppressed evidence, when viewed “in the context of the

entire record.” Agurs, 427 U.S. at 112. Thus, in Kyles the Supreme Court did not

hesitate to consider the totality of the evidence in the record, exculpatory and

-16-
inculpatory, and, in concluding the suppressed evidence at issue was material, the

Court stressed that, while the jury could well still have found the defendant guilty

in light of the considerable evidence amassed by the government, this fact simply

was not dispositive of the question before it. 514 U.S. at 453. 5

3

The court’s misapplication of the Brady standard of review is also revealed

in its exclusive focus on the government’s evidence on count 3 without reference

to the jury’s disposition on counts 1 and 2. The court recites the government’s

predisposition evidence on count 3 and then proceeds to hold it convincing. The

difficulty is that the jury evidently did not find the very same evidence

convincing. At trial, the government’s predisposition evidence was materially

5
The court takes pains to represent that it has “conducted a review of the
entire record.” M aj. Op. at 18 n.5. I do not for a moment mean to suggest
otherwise. M y concern is not with the thoroughness of the court’s review of the
record, but with what it does with that record – namely, outline facts and draw
inferences in the light most favorable to the government. This is our mode of
operation in a sufficiency review, not a Brady challenge.

The concurrence’s reliance on Griffin v. United States, 502 U.S. 46 (1953),
and several other cases in the Griffin line serves to underscore the problem.
Griffin was no Brady case; rather, it simply announced the following rule:
“[W ]hen a jury returns a guilty verdict on an indictment charging several acts in
the conjunctive, as Turner’s indictment did, the verdict stands if the evidence is
sufficient with respect to any one of the acts charged.” Id. at 56-57 (emphasis
added). This standard has no place in a Brady challenge where we look not at the
sufficiency of the government’s evidence to support a guilty verdict on the
charged elements, but to the fundamental fairness of the trial.

-17-
identical across all three counts. And we know that the jury rejected that

evidence on counts 1 and 2. 6 I do not see how evidence of predisposition that the

jury found insufficient to sustain a conviction on counts 1 and 2 can be evidence

worthy of our confidence to sustain a conviction on count 3. I do not question

that the government’s evidence on count 3 may have been sufficient to sustain a

conviction, or that it may prove persuasive to a jury on retrial. But those are not

the questions before us.

4

An examination of the specific evidence cited by the court and concurrence

highlights my preceding concerns. 7

First, the court argues that M r. Ford was “eager” to sell the weapon despite

“diminished pressure” from M r. Heavilin. M aj. Op. at 19. In support of this

claim, the court points to a November 17 conversation in which M r. Heavilin told

M r. Ford that another dealer-friend might be willing to sell him a machine gun,

two days after which M r. Ford called M r. Heavilin with news he had found a

6
Of course, the government secured a conviction on count 3. But it
appears the government did so only because on that count alone, and only by
virtue of its suppression of the pre-October 5 email, it could argue that M r. Ford
initiated the idea of the gun sale.
7
Separately but not insignificantly, several of the following arguments the
court and concurrence make were not briefed by either party or considered in the
district court’s order. See Appellee Br. at 15 (setting forth only reasons three,
four, and part of one). Our normal practice would counsel against raising and
considering them. See supra n. 2.

-18-
weapon. Id. The court, however, offers no record citations to support its

assertions that M r. Ford was “eager” to complete the sale, or that the pressure on

him was diminished as a result of the conversation, and these conclusions appear

only to be inferences in the government’s favor. In fact, contrary evidence,

unmentioned by the court, exists in the record suggesting that M r. Ford was no

more or less “eager” to complete this sale than either of the previous sales on

which he was acquitted. See R. Vol. XIV at 29, 35-38 (testimony of M r. Ford).

Record evidence even suggests that M r. Heavilin’s actions could have increased

rather than diminished pressure on M r. Ford. See R. Vol. XIV at 163

(psychological testimony). The court offers us no reason to suggest that we can

confidently pick one competing line of evidence over another.

Second, the court argues that M r. Ford’s predisposition is demonstrated by

his insistence upon completing the third transaction, despite being told by M r.

Heavilin that he did not need to do so, as well as by his use of a decoy gun. M aj.

Op. at 19-20. But the government’s evidence on this score was identical across

all three counts. For example, in its closing argument, the government expressly

contended that, “contrary to the defendant’s theory of entrapment, Keith Heavilin,

before each of the three machine gun sales, told the defendant, if you are stressed,

don’t do it. If the safety issue is a concern, don’t do it.” R. Vol. XV at 161

(emphasis added); see also R. Vol. VI at 11-13; R. Vol. IX at 163. Likewise, the

-19-
government’s closing argument emphasized that M r. Ford engaged in counter-

surveillance (of which the use of a decoy is one example) before each of the three

gun transactions. See R. Vol. XV at 167; see also R. Vol. VI at 9-10; R. Vol. XI

at 166; R. Vol. IV at 37; R. Vol. XIV at 62. I fail to see how we can safely

sustain a conviction on count 3 relying on evidence the jury evidently rejected on

counts 1 and 2.

Third, the court contends predisposition is established by the fact that M r.

Ford “for the first time” with the third machine gun sale “thought he would make

a decent profit.” M aj. Op. at 20. Yet, the court makes no mention of the fact that

the evidence at trial showed M r. Ford’s profits on the second and third sale were

similar, not different: M r. Ford testified that he “probably made a couple of

hundred dollars” on the second sale, R. Vol. XIII at 124, and $400 on the third

sale, see R. Vol. XIV at 37; R. Vol. XIII at 111.

Fourth, the court argues that “[b]y the time the third sale occurred, . . . any

previous entrapping influence . . . had dissipated,” and that there were “fewer

contacts” before the third sale than before the first two sales. M aj. Op. at 21.

W hile I fully agree with the court that we cannot presume entrapment on the third

count simply because entrapment was found on the first two counts, see United

States v. Nguyen, 413 F.3d 1170, 1181 (10th Cir. 2005), this undisputed legal

principle does not obviate the need to analyze independently the evidence tending

-20-
to prove or disprove M r. Ford’s entrapment with respect to count 3. And, again,

the evidence on count 3 with respect to predisposition at trial was no different in

kind or quality than the evidence the jury rejected on counts 1 and 2. 8

Fifth, the court and concurrence contend that the government produced

evidence at trial indicating M r. Ford possessed the third weapon “long before”

M r. Heavilin asked to buy it. The length of this period, the reasoning goes, tends

to undercut any inference that the government’s informant entrapped M r. Ford

into procuring the weapon, and tends to show that M r. Ford unlawfully possessed

it on his own volition. M aj. Op. at 21-22; Concurrence at 1-4.

M y colleagues begin by placing great weight on M r. Hee’s testimony that

M r. Ford possessed the third gun several months before its sale. Yet, they make

no mention of the fact that M r. Hee testified that he saw both of the guns that

were the subject of sales 2 and 3 in M r. Ford’s possession months before the

sales, see R. Vol. XI at 13-15; 72-77; 104-105, and that the FBI list the

8
In this section of its opinion, the court adds that “the substance of Ford’s
October 5 email shows he was responding to Heavilin’s request for a gun, thus
allowing Ford to convincingly argue the government initiated the idea of the third
sale.” M aj. Op. at 21. But this argument does not supply an independent reason
for finding predisposition, even if M r. Heavilin initiated discussions of the third
gun sale. Rather, it simply returns us to the government’s (mistaken) argument
that the suppressed pre-October 5 email is cumulative evidence with respect to
who, in fact, initiated the third sale. As the government itself concedes, the
October 5 email simply does not prove, by inference, that M r. Heavilin initiated
the third sale. See supra Section II.A.

-21-
concurrence points to as corroboratory documentary evidence of his testimony

also included both those weapons, see R. Vol. XI at 21. If M r. Hee’s testimony

and the FBI list were as convincing as my colleagues suggest, surely the jury

would have convicted on count 2. But the jury did not. And it was plainly free

not to do so in light of competing evidence calling into question M r. Hee’s

credibility that goes unnoted by my colleagues. See R. Vol. XIV at 29, 37-38

(M r. Ford denying M r. Hee’s assertions); R. Vol. XIV at 141-45 (testimony of

private investigator Ed O’Connor questioning M r. Hee’s observations). Unless

we may view and credit the government’s evidence in isolation, and then

disregard the fact that much of it was rejected by the jury on other counts, it is

hard to see how we can conclude that M r. Hee’s testimony unshakably confirms

that M r. Ford possessed the third gun before being induced by the government’s

informant into procuring it. 9

9
In a footnote, the court disputes that possession evidence was materially
identical across counts two and three. M aj. Op. at 22 n.16. Yet in support of this
point, the court simply seeks to bolster M r. Hee’s testimony, stressing that he had
“both longer and more significant contact with the third machine gun” because he
testified to having seen the third gun two years prior to the sale and to having
fired the third gun. Id. I cannot subscribe to this analysis for two reasons. First,
the length of time a defendant possesses a gun is irrelevant to whether he is guilty
of 18 U.S.C. § 922(o). Second, with respect to M r. Hee’s testimony that he fired
the third weapon, the court again seems to conflate a sufficiency claim with a
Brady claim. The court makes no mention of competing evidence from a private
investigator, Ed O’Connor, who testified that in a pre-trial interview with M r.
Hee, M r. Hee stated that he never shot the third gun. See R. Vol. XIV at 141.
(continued...)

-22-
 The court and concurrence next cite the testimony of Detective W illiam

Gallegos and Special Agent Brian Schmitt, who testified that M r. Ford admitted

in an interview to possessing the AR-15 for some time before the third sale. M aj.

Op. at 23; Concurrence at 2-3. But, here again, neither the court nor the

concurrence pauses to mention that M r. Ford denied making any such admission.

See, e.g., R. Vol. XIV at 80-81. And neither explains why we can confidently

presume that M essrs. Gallegos and Schmitt are correct and M r. Ford is not. This

is surprising given the district court’s undisturbed and sensible finding that the

disclosure of the pre-October 5 email “went to credibility because to some extent

[it] contradicted . . . Agent Schmitt’s testimony that the idea and opportunity for

the third machine gun came from the defendant.” Dist. Ct. Op. at 11.

Finally, my colleagues note Rick Tarvin’s testimony that he never sold an

AR-15 to M r. Ford. They argue that this evidence tends to undercut M r. Ford’s

testimony that he obtained part of the AR-15 from M r. Tarvin only shortly before

the third sale and only in response to M r. Heavilin’s urging. See M aj. Op. at 23.

From this, my colleagues infer that M r. Ford must have possessed the weapon for

some time, and was predisposed to possess it without prompting from the

9
(...continued)
Neither does it mention similar testimony from M r. Ford. See R. Vol. XIV at 47
(M r. Ford testifying he never shot an AR-15 automatic with M r. Hee). Finally,
and most importantly, the court does not explain why we can or should credit M r.
Hee’s version of events over M r. O’Connor’s or M r. Ford’s.

-23-
government’s informant. Again, however, the court gives no reason why we

should have any more confidence in M r. Tarvin’s testimony than M r. Ford’s.

And, in fact, an opposite conclusion is at least equally plausible. M r. Tarvin

testified that he never sold M r. Ford any machine gun, see R. Vol. XIV at 217,

while M r. Ford testified that he purchased all three of the weapons that were the

subjects of counts 1, 2, and 3 from M r. Tarvin, and did so only at M r. Heavilin’s

urging, see R. Vol. XIV at 36-37; R. Vol. XIII at 105; see also R. Vol. XV at 160

(defense counsel’s closing arguments). Had the jury believed M r. Tarvin’s

testimony, it would have found that M r. Ford possessed all three weapons from

other sources; did so well before making any sales to M r. Heavilin; and thus was

not entrapped into possessing or selling the weapons. Yet, the jury acquitted M r.

Ford of unlawfully possessing or transferring the first and second weapons. It

follows that the jury may very well have rejected M r. Tarvin’s testimony and

accepted M r. Ford’s testimony on where he obtained the guns from – testimony

that comports with his overarching contention that he came into possession of

each weapon only as a result of M r. Heavilin’s overweening influence. The court

and concurrence make no effort to explain why we can confidently discount this

possibility so strongly suggested by the evidence. 1 0

10
M r. Ford also presented evidence that M r. Tarvin had a past felony
conviction and argued from this fact that M r. Tarvin would be even more
(continued...)

-24-
 ***

The only meaningful evidentiary difference between the counts on which

M r. Ford was acquitted and convicted was the fact that, at trial, the government

was able to show that M r. Ford, rather than its informant, initiated discussions

over the third gun sale. W e now know, however, that M r. Ford did not initiate the

third gun sale: the suppressed pre-October 5 email definitively proves that. In

these circumstances, I am compelled to conclude that the suppressed email was

material to the question of entrapment, that its suppression deprived M r. Ford of a

fair trial, and that the resulting verdict does not deserve our confidence. W ith

respect for the considered views of my colleagues, I dissent.

10
(...continued)
reluctant than the typical citizen to admit to having illegally sold weapons for fear
of a particularly harsh sentence. See R. Vol. XV at 20-22; see also Jury
Instruction No. 7 (informing jury that M r. Tarvin’s testimony “may be discredited
or impeached by showing that he previously has been convicted of a felony”).

-25-