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United States v. Atkins

United States District Court, N.D. California, San Jose Division

June 19, 2017



          BETH LAB SON FREEMAN, United States District Judge

         Defendant, Clinton Edward Atkins (“Atkins”), has been charged in a two count indictment with violation of 18 U.S.C. § 922(g)(1), Felon in Possession of a Firearm and Ammunition (“Count 1”), and section 922(a)(1)(A), Unlicensed Manufacturer of Firearms (“Count 2”). Atkins moves to dismiss Count 1 on the basis that he was not prohibited from possessing firearms at the time that he allegedly committed his charged crimes. Mot. to Dismiss Indictment Set 3 (“Mot.”) 2, 9, ECF 32. Atkins also moves to suppress the evidence obtained in support of the indictment based on violation of his constitutional rights. Id. at 2. The Court held an evidentiary hearing on the motion to suppress, and considered the arguments of the parties, and the parties' latest set of briefing along with all of Atkins' declarations received to date. For the reasons discussed below, the motion to dismiss and the motion to suppress are DENIED.


         Atkins has been charged in a two count indictment with violation of 18 U.S.C. section 922(g)(1), Felon in Possession of a Firearm and Ammunition (“Count 1”), and section 922(a)(1)(A), Unlicensed Manufacturer of Firearms (“Count 2”). ECF 1. Atkins has previously submitted several rounds of briefing in connection with this motion to dismiss the indictment along with self-attested declarations. ECF 15, 19, 28. Each time this Court held a hearing after a round of briefing, Atkins requested an opportunity to submit additional briefing. ECF 22, 26, 31. During the hearing on February 28, 2017, Atkins requested for the first time in open court an evidentiary hearing on a motion to suppress. ECF 35. Atkins also represented to the Court that the briefing submitted on January 27, 2017 should be the only set of briefing this Court should consider on this motion and that the Court need not consider the briefing submitted prior to January 27, 2017. May 10, 2017 Hr'g Tr. (“Tr.”) 122:11-20. On May 10, 2017, this Court held an evidentiary hearing on Atkins' suppression motion. ECF 39. At the hearing, the Government introduced testimony from Agent Kim, and also moved into evidence without objection the “Report of Investigation, ” drafted by Agent Kim as Exhibit 1, and photos taken inside Atkins' garage as Exhibits 2 and 3. Atkins also testified during the evidentiary hearing and moved into evidence without objection a portion of his cell phone log, as Defendant's Exhibit 10. Atkins also requested the Court to take into considerations all the declarations he had submitted in the prior rounds of briefing, which the Court granted.


         The criminal charges against Atkins arise from an investigation conducted by Tae-Kyun Kim and Oluwatoba Awolola, special agents of the Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”). May 10, 2017 Hr'g Tr. (“Tr.”) 15:7-14.

         A. Agent Kim's Testimony

         The following evidence is taken from Agent Kim's testimony. The agents learned from a concerned citizen that Atkins was involved in the business of manufacturing AR-15 type firearms from incomplete receivers, commonly referred to as “80 percent” receivers, and that Atkins hosted multiple “80 percent” receiver build parties at his residence, among other information. Id. at 11:17-12:4. After some background investigation, the agents learned that Atkins had been convicted of a felony under California Vehicle Code section 2800.2, that he and his associates were involved in an online business called “80 receivers, ” the name of which was later changed to “, ” and that he was also actively involved in a gun enthusiast forum called “” Id. at 12:8-23.

         On July 15, 2014, the agents decided to visit Atkins at his residence and arrived there at 1:30 p.m. Id. at 15:7-18; 44:13-15. Upon arrival, the agents identified themselves and showed their credential identifying themselves as ATF agents. Id. at 44:16-21. The agents told Atkins the reason for their visit while they stood at the front door. Id. at 46:1-3. After that, Atkins led the agents inside his house to his dining table. Id. at 45:16-19. The agents conducted an interview with him in his kitchen/dining area and recorded part of the interview session. Id. at 17:13-18; 19:1-2; 33:1-11.

         At one point during the visit, Atkins asked the agents whether he was under arrest, to which the agents responded that Atkins was not under arrest and he was not in custody. Id. at 20:2-13. According to Agent Kim, he and Agent Awolola thus had no reason to read Atkins the Miranda rights given that Atkins was not under arrest. Id. at 60:17-25. Agent Kim also testified that Atkins was free to leave his residence, free to talk to his wife and child, and free to take a break. Id. at 61:20-62:2. In fact, at another point during the visit, Atkins went outside to his front yard for a “smoke break.” Id. at 20:8-24; 21:21-23. While on his smoke break in his front yard, Atkins also asked the agents if he could call his attorney and the agents said he was free to do so. Id. at 21:3-20. Based on the phone log, Atkins made a first phone call in an attempt to reach his attorney at 2:18 p.m. Id. at 51:22-52:10; Ex. 10. And he also made phone calls at 2:23 p.m. and at 2:24 p.m. Id. at 53:24-54:10. Atkins was unable to make contact with his attorney and came back inside the residence after his smoke break. Id. at 24:3-16; 69:11-14. During the interview, Atkins never told the agents that he did not want to talk without an attorney. Id. at 58:16-59:2; 59:14-60:4. Atkins also never asked the agents to cease questioning. Id. at 69:5-10.

         After Atkins came back from his smoke break, the agents inquired about the location of his firearms. Id. at 24:24-25:15. Atkins then opened up the gun safe and showed the agents the firearms and the ammunitions. Id. at 26:6-11. The agents next told Atkins that he could not possess these firearms because of his prior felony conviction. Id. at 26:12-15. Atkins responded that he wanted to relinquish the firearm to his uncle. Id. at 26:16-18. The agents then said that they would need his uncle's contact information to ensure that the uncle was not barred from possessing firearms. Id. at 26:19-27:24. The agents also alternatively proposed to Atkins that he could voluntarily abandon the firearm to ATF. Id. at 27:6-13. Atkins did not provide any contact information on his uncle and instead, “willingly chose” the agents' second option to voluntarily surrender the firearms to ATF, and signed the form to that end. Id. at 26:23-24; 27:14-17. The agents also looked in his garage for indicia of firearms manufacturing and took photos with Atkins' permission. Id. at 19: 18-22; 28:21-29:4. According to Agent Kim, the interview session lasted about 60 minutes. Id. at 44:8-12. Agent Kim testified that the agents left Atkins' residence before 3:00 p.m. Id. at 55:3-6. According to the phone log, Atkins made another phone call at 3:08 p.m. Id. at 53:24-54:3.

         B. Atkins' Testimony

         The following evidence is taken from Atkins' testimony. According to Atkins, the agents arrived at his house around 1:50 p.m. or 2 p.m., and not at 1:30 p.m. as Agent Kim testified. Id. at 101:13-102:17; 112:12-23; 115:15-116:4. The two agents were both wearing ATF-issued equipment which showed “ATF.” Id. at 103:1-6. After Atkins invited the agents into his house, he led the agents to his kitchen table. Id. at 75:10-12; 75:16-19; 103:1-24. Atkins admitted that the agents did not threaten him and “were professional the whole time.” Id. at 104:14-18. During the entire duration of the visit, Atkins' wife and two children were home, the television was on, and Atkins was not restrained. Id. at 104:22-105:8.

         The agents did not tell him the reason for their visit until after they were in the kitchen. Id. at 103:22-24. About five minutes after the agents and Atkins sat down at the dining table and seven minutes after one of the agents said that he thinks “[Atkins] did something illegal, ” Atkins made his first phone call. Id. at 82:6-10. At one point during the interview, Atkins told the agents that they “need[ed] to stop [the interview]” and that he wanted to “speak to a lawyer.” Id. at 82:25-83:7. Atkins then placed another phone call at the table in front of one of the agents. Id. at 83:5-7. However, when Atkins could not reach the attorney, the agent told him not to worry, stating “nothing you say here will get you charged, as long as you don't lie to me.” Id. at 83:5-7. The agent also stated that as long as he did not lie, no charges would be filed and that he would “be in no trouble.” Id. at 89:12-17. Atkins also asked the agent a few times during the interview whether he was under arrest, to which the agent responded no. Id. at 105:10-106:11.

         The agents allowed Atkins to make phone calls on multiple occasions during the interview. Id. at 107:6-13. After failing to reach his attorney, Atkins again requested the interview to be postponed until he could speak with a lawyer. Id. at 85:2-7. The agents denied his request and kept asking him questions. Id. at 85:2-7; 91:4-13. The agent told him that the interview would not be postponed and that the agents would not leave the house unless they knew there was no firearm present. Id. at 85:15-17; 88:19-89:2. The agent also told Atkins that he “didn't need a lawyer every time [he] tried to call.” Id. at 85:18-20. Atkins testified that these phone calls were made about 10 or 15 minutes after the interview started. Id. at 86:3-11. Atkins further testified that he did not feel free to leave. Id. at 85:8-14; 113:18-114:6.

         At one point during the interview, Atkins and the agents took a break but Atkins denied that the break was initiated by him. Id. at 106:12-107:5. According to Atkins, when Agent Kim walked out to talk on the phone with his boss, Atkins followed him out onto the front lawn and smoked a cigarette. Id. at 106:12-22.

         Atkins eventually agreed to relinquish his firearms to the agents. Id. at 90:4-12. He signed the paperwork and brought the firearms to the agents. Id. at 92:3-18. He even helped the agents “carry out the ammo [to their car] because their hands were full.” Id. at 92:19-24.

         According to Atkins, the interview lasted for about an hour or an hour and fifteen minutes and ended around 3:10 p.m. or 3:15 p.m. Id. at 87:3-7; 116:1-3. The last phone call Atkins made at 3:08 p.m. was when the agent was still present and “talking to his boss” over the phone. Id. at 87:8-13.

         C. Agent Kim's Rebuttal Testimony

         The following evidence is taken from Agent Kim's rebuttal testimony. Agent Kim denied ever telling Atkins that he would not leave unless he was sure that there were no guns on the premises. Id. at 117:24-118:10. Agent Kim also testified that he did not tell Atkins that he would come back with a warrant if the firearms were not surrendered. Id. at 118:11-16. In addition, Atkins never told the agents that he did not want to talk without an attorney present. Id. at 118:17-28.


         The indictment charges Atkins with violation of 18 U.S.C. § 922(g)(1), felon in possession of a firearm, based on a prior state court felony conviction under California Vehicle Code § 2800.2. Atkins argues that he only had a misdemeanor, which cannot sustain an 18 U.S.C. § 922(g) charge. Specifically, he avers that pursuant to his plea to a state court conviction, he only received “formal probation” and later “270 days in county jail, ” for violating probation, which qualified the conviction as “a misdemeanor for all purposes . . . after a judgment imposing a punishment other than imprisonment in the state prison.” Mot. 11-12 (citing to Cal. Penal Code § 17(b)(1)). Atkins further contends that firearm prohibitions were not automatically imposed for most misdemeanor convictions in California, but could be imposed as a condition of misdemeanor probation. Mot. 14. Given that the state court did not “check the box” on the minute order to impose this condition, Atkins contends that the minute order reflects his plea deal whereby he was not prohibited from owning firearms. Id. at 15.

         The government counters that Atkins was a convicted felon on July 15, 2014, the date he allegedly possessed the firearms and ammunitions at issue in Count I. Second Supp. Opp'n (“Opp'n”), ECF 33. The government also argues that California law automatically prohibits a person with a felony conviction, such as Atkins, from owning or possessing firearms. Id. at 8-9. Lastly, the government contends that the state court's failure to “check the box” prohibiting firearm ownership had no impact on the restriction on Atkins' right to own or possess firearms. Id. at 9.

         18 U.S.C. § 922(g)(1) provides:

It shall be unlawful for any person-[] who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year [] to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

         The predicate felony for Atkins' 18 U.S.C. § 922(g)(1) charge is his guilty plea to violating California Vehicle Code § 2800.2 in 1998. Mot. 9; Exs. 1 and 2 to Opp'n. Atkins does not dispute that he pled guilty to this felony violation in ...

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