United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION TO DISMISS AND MOTION TO
LAB SON FREEMAN, United States District Judge
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.
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
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.
Agent Kim's Testimony
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 “MajorOddball.com, ” and that he was
also actively involved in a gun enthusiast forum called
“Calguns.net.” Id. at 12:8-23.
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.
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
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.
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.
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.
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
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.
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
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.
Agent Kim's Rebuttal Testimony
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.
ATKINS WAS PROHIBITED FROM POSSESSING FIREARMS WHEN HE
ALLEGEDLY COMMITTED THE CHARGED CRIMES
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.
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.
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.
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 ...