The main points of the Fortune article are that ATF was helpless to stop the trafficking because of weak Arizona gun laws and the “evil gun dealers”. Much can be learned from only two paragraphs:
"Customers can legally buy as many weapons as they want in Arizona as long as they're 18 or older and pass a criminal background check. There are no waiting periods and no need for permits, and buyers are allowed to resell the guns. "In Arizona," says Voth, "someone buying three guns is like someone buying a sandwich."
By 2009 the Sinaloa drug cartel had made Phoenix its gun supermarket and recruited young Americans as its designated shoppers or straw purchasers. Voth and his agents began investigating a group of buyers, some not even old enough to buy beer, whose members were plunking down as much as $20,000 in cash to purchase up to 20 semiautomatics at a time, and then delivering the weapons to others."
There are several implied and stated falsehoods in just these two brief paragraphs:
a) First, Fortune puts forth the lie – directly from the mouth of David Voth, the man who ran the program – that ATF could not arrest the traffickers because Arizona gun laws were lacking. Fortune never recognizes that if the conventional wisdom regarding Fast and Furious is true, he could be looking at both Federal and State charges that could put him in jail for a very long time. He clearly has an agenda.
That said, let’s examine his claim.
First, some explanation is needed for those who are not familiar with gun laws in the United States. All purchases at gun dealers are subject to a great many Federal laws. Congress has intentionally left the matter of private sales to the states – with basically two very important exceptions:
1) It is a Federal felony to engage in the business of selling firearms without a Federal Firearms License (FFL),
2) It is a Federal Felony to lie on the Federal form (4473). A critical question on that form is, “Are you the actual purchaser of this firearm?”. If you answer “no” you do not get the gun. If you answer “yes”, and you are buying the gun for someone else, you have just committed perjury. The sentence can be up to five years per offense.
Mr. Voth’s job is not to enforce the laws of any state – it is to enforce Federal Firearms Laws! ATF does this day in and day out in every state in the union – including the majority of states that, like Arizona, allow private sales. It is completely absurd to blame Arizona for the failures of the Phoenix ATF office.
So, what of Voth’s claim that he somehow could not make a case against these buyers?
Fact #1: Federally Licensed Firearms (FFLs) are trained by ATF to stop “straw buyers” under their joint program with the firearms industry called, “Don’t lie for the other guy.” When they detect such a buyer, they usually conduct what is commonly called a “stall and call”. They stall the straw buyer and call the ATF. ATF typically tells the dealer how long it will take them to get agents into position to “follow the gun” or they tell the dealer they can’t get there and the dealer refuses the sale. No gun dealer wants to make questionable sales – it could cost them their license, not to mention that many of these dealers are retired cops and even those who aren’t are usually very close to law enforcement.
Fact #2: Standard ATF procedure is to make arrests quickly in cases of straw purchasing. They may make an arrest in the parking lot and attempt to “flip” the straw buyer – or they may follow the gun until the straw purchaser hands it over to someone else (ideally seeing money change hands) and make an arrest at this point. As the agents testified before Issa’s committee, they don’t want to let guns “walk”.
Fact #3: Buying a gun and quickly turning it over to a third party is really all that is needed to convict someone for felony straw purchasing. FORTUNE ADMITTS THAT THIS IS EXACTLY WANT HAPPENED AND PHOENIX (SPECIFICALLY VOTH) ATF KNEW IT! It really isn’t that complex. Yes, you are allowed to sell your guns privately – provided that you didn’t buy them for that purpose! What can you say if you sell the gun within a day or two of buying it, having never shot it? If you don’t say anything, you can be busted for both straw purchasing and dealing without a FFL. If you say you bought it for the other guy, it’s straw purchasing. If you say that you bought it without a buyer in mind, you can still get nailed for dealing without a license.
The above is true of someone dealing just one gun – the case only gets stronger with additional guns. The claim that these guys could not be busted until they bought hundreds of the same kind of gun is absurd. Not to mention that as soon as the operation was exposed, they arrested these criminals on charges they could have brought months, if not over a year, before.
b) Fortune also uncritically buys into the thoroughly disproved myth that most cartel guns come from US gun shops. After making this error, they fail to ask some important questions:
How did the ATF find out about this smuggling ring in the first place? Answer: The gun dealers reported it. As outlined above, this is standard procedure. As one of the agents testifying before Congress stated, “Gun dealers make our cases for us.”
Why were the gun dealers directed to sell thousands of guns to people they would have otherwise refused to sell firearms to? There can be no doubt about the dealers being ordered to sell these guns to these criminals, because these FFLs carefully documented these directions from the ATF (including many from Voth himself). They often requested and obtained these orders in writing. One refused to make any more sales until a US Attorney gave him written assurances that ATF was conducting an authorized operation and that he should make the sales. He got it. Other FFLs and employees made audio recordings of ATF officials ordering them to make the sales. As more and more guns were going out the door, dealers began to ask how many more guns needed to be sold to make the case – one even wrote to Voth (Fortune’s primary source) expressing concern about the possibility that these guns might be getting over the border. He stated that he had friends in the Border Patrol and expressed concern that an agent could be killed with one of the guns he was being ordered to sell. Voth wrote back telling him that there was no chance that this would happen because ATF was intercepting the guns before they crossed the border. We now know that Voth was lying. Yet Fortune trusts him as a primary source.
How did so many persons who were Federally prohibited from owning firearms pass the background checks? In many cases, the smuggling rings use “clean” buyers to make straw purchases. Of course, you need many of these people if you are going to stay “under the radar”. In the case of Fast and Furious, the smugglers became more and more bold – eventually buying large numbers of guns all at once (something that normally would have caused a dealer to call ATF and refuse the sale). When that succeeded they even became so bold as to have convicted felons buy the guns. Sadly, ATF had made sure that this would not present a problem by having the FBI “rig” the background checks so they would pass.
The bottom line is simple: This was not a case – as Voth alleges – of ATF being unable to prevent gun trafficking. It is a case of ATF enabling gun trafficking.
Yet Fortune goes on to write this:
“Quite simply, there's a fundamental misconception at the heart of the Fast and Furious scandal. Nobody disputes that suspected straw purchasers under surveillance by the ATF repeatedly bought guns that eventually fell into criminal hands. Issa and others charge that the ATF intentionally allowed guns to walk as an operational tactic. But five law-enforcement agents directly involved in Fast and Furious tell Fortune that the ATF had no such tactic. They insist they never purposefully allowed guns to be illegally trafficked. Just the opposite: They say they seized weapons whenever they could but were hamstrung by prosecutors and weak laws, which stymied them at every turn.”
How is the ordering (again well documented) of sales that would have otherwise never taken place not gun walking – especially when Voth states that after the sale ATF could do nothing? Voth could have stopped these sales at any time by making about five phone calls to the cooperating dealers. Why didn’t he do that?
We have not even begun to scratch the surface here. For instance, we have not touched on the fact that Voth ordered agents to break off surveillance of guns and even ordered them to allow guns to cross the border. The case against Voth is huge, and the biggest question is: Why does he still have a job with ATF?
For more information see Sen. Grassley’s critique of the Fortune article.