                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                         July 7, 2015
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellant,

v.                                                   No. 14-2138
                                           (D.C. No. 1:13-CR-03301-JAP-1)
ROBERT E. ADAMS,                                  (D. New Mexico)

       Defendant - Appellee.
                      _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before BRISCOE, Chief Judge, BALDOCK, and BACHARACH, Circuit
Judges.
                   _________________________________

      The government investigated Mr. Robert Adams based on suspicion

that he was smuggling guns into the United States. See 18 U.S.C. §§ 545,

923 (2012). 1 To aid in the investigation, the government obtained search

warrants for Mr. Adams’ residential and business properties, permitting

law enforcement to look for firearms, records, and other evidence of gun

smuggling.

*
      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
1
      The government also investigated Mr. Adams for other possible
offenses. But in this appeal, the government relies solely on the allegations
involving gun smuggling.
      After conducting a hearing under Franks v. Delaware, 438 U.S. 154

(1978), the district court concluded that each warrant had been based in

part on false statements recklessly included in the accompanying affidavit.

After excising these parts of the affidavit, the district court (1) found there

was no probable cause and (2) granted Mr. Adams’ motion to suppress the

evidence found in the searches.

      The government appeals. In deciding this appeal, we must ask: Was

there probable cause for the searches notwithstanding the absence of

evidence of gun smuggling in the last three years? Concluding that

probable cause did not exist, we affirm.

I.    Standard of Review

      We review de novo the district court’s legal conclusion that the

affidavit did not establish probable cause. See United States v. Garcia-

Zambrano, 530 F.3d 1249, 1254 (10th Cir. 2008) (“Whether a corrected

affidavit supports a finding of probable cause is a question of law that we

review de novo.”). To determine whether probable cause existed, we

consider whether the affidavit created a fair probability that evidence

listed in the warrant would be found in Mr. Adams’ residential or business

properties. Illinois v. Gates, 462 U.S. 213, 238 (1983).

II.   Probable Cause

      In making this determination, we consider the information in the

affidavit collectively rather than in isolation. United States v. Traxler, 477

                                       2
F.3d 1243, 1247 (10th Cir. 2007). The information falls into four

categories:

     1.       Mr. Adams’ storage of guns in Canada,

     2.       his trips to Canada,

     3.       his failure to file tax returns, and

     4.       evidence discovered in regulatory inspections in 2006 and
              2009.

     In considering these categories, we focus on whether the evidence

would collectively create a fair probability that law enforcement would

find guns or other indications of gun smuggling when searching

Mr. Adams’ residential and business properties.

     A.       Storage of Guns in Canada

     According to the affidavit, 132 of Mr. Adams’ guns were found in a

Canadian storage unit. All had been purchased from a Canadian auction

house and stored for roughly 10 months.

     1.       Mr. Adams’ Reasons for Storing the Guns

     In these circumstances, the government argues that Mr. Adams was

planning to smuggle some or all of the 132 guns into the United States. For

this argument, the government theorizes that Mr. Adams kept the guns in

storage until he found a buyer and when he did, he would smuggle the guns

into the United States or ship them directly to the buyer, circumventing

U.S. taxes and regulations.


                                         3
     The problem with that theory is that there is nothing in the affidavit

to tie the storage of Canadian guns to a plan to smuggle them. For

example, the affidavit does not provide any evidence that Mr. Adams

          was looking for a buyer while he was storing the guns in
           Canada or

          had plans to smuggle the guns or ship them to a buyer.

In the absence of any such evidence, the court had no reason to infer an

intent to smuggle guns from Mr. Adams’ decision to store his guns in

Canada.

     2.    Mr. Adams’ Omission of 51 Guns on the Form 6A

     The government points out that Mr. Adams failed to list 51 of the

stored guns on an import form (“Form 6A”), though he had listed many of

these guns on a request for an import permit (“Form 6”). But this fact does

not create an inference of gun smuggling.

     To bring guns into the United States, an importer must obtain a

permit by completing a Form 6. 27 C.F.R. § 478.112(b)(1)-(2)(i) (2012).

When the guns are eventually brought into the United States, the importer

must submit a Form 6A to obtain the firearms from customs. 27 C.F.R.

§ 478.112(c)(1) (2012). Thus, Mr. Adams would not have needed to list the

guns in the Form 6A until he actually imported them. Id.

     Mr. Adams included 51 guns on a Form 6 that he had not listed on a

corresponding Form 6A. The government suggests that Mr. Adams omitted


                                     4
the firearms on the Form 6A because he was planning to smuggle them. But

this suggestion is circular: Unless one begins with the assumption that Mr.

Adams is a gun smuggler, his omission of the 51 guns on the Form 6A

could not supply evidence that he was involved in gun smuggling. After

all, why would Mr. Adams alert U.S. authorities of plans to import guns

that he actually planned to smuggle?

     The government answers with a theory: Mr. Adams needed the

Form 6s to buy the guns in Canada. Appellant’s App., vol. IV, at 722;

Appellant’s Opening Br. at 26-27 (Dec. 3, 2014); Oral Arg. at 7:37-7:57.

But as the government conceded in oral argument, there is nothing in the

affidavit suggesting the need for a Form 6 to buy guns in Canada. Oral

Arg. 7:32-7:52. Thus, the affidavit does not suggest anything sinister in

Mr. Adams’ listing of the guns in the Form 6s and omission of the guns in

the Form 6As.

     3.    Mr. Adams’ Inclusion of 81 Guns on the Form 6A

     The affidavit also suggests a sinister motive for the 81 guns included

on the Form 6A:

     The review [by a Canadian police officer] determined that all
     of the weapons listed on [the Form 6A] that [Mr. Adams] had
     proposed to import into the United States were accounted for in
     the [Canadian Police Department’s] seizure of weapons on July
     27, 2012, that was [sic] illegally stored in a Calgary, Alberta,
     Canada, storage Locker by [Mr. Adams]. [Mr. Adams] therefore
     falsified [Form 6A], as he never intended to import the dozens
     of firearms he secreted into his Canadian Storage locker.


                                       5
Appellant’s App., vol. I, at 73. This inference of “falsification” is

legally invalid and illogical.

      The Form 6A is not submitted until the importer begins the

importation process. 27 C.F.R. § 478.112(c)(1) (2012). Thus, if

Mr. Adams had inaccurately included the guns on the Form 6A, he

would not have falsely represented anything to the government until

he began the importation process.

      The affiant’s theory of “falsification” is not only invalid under the

regulations but also illogical. For roughly ten months, Mr. Adams stored

the guns, listing some and omitting some. For the guns omitted on the Form

6A, the affiant infers from the omission that Mr. Adams never intended to

lawfully import the guns. For the guns included on the Form 6A, the

affiant infers from the inclusion that Mr. Adams was falsifying the form

because he never intended to lawfully import the guns. The government’s

theory illustrates the adage: “Heads I win, tails I win.”

      4.    Probable Cause to Believe the Evidence Would Be at
            Mr. Adams’ New Mexico Properties in 2013

      But let’s assume that Mr. Adams was planning to smuggle all of the

132 guns from Canada in 2011. The search warrants were not to search the

storage unit; they were to search Mr. Adams’ properties in Albuquerque,

New Mexico. The court could issue the search warrants only if there was a

fair probability that Mr. Adams had guns, records, or other evidence of


                                       6
smuggling in those properties. United States v. Long, 774 F.3d 653, 658

(10th Cir. 2014), cert denied, __ U.S. __, 135 S. Ct. 2068 (2015). Even if

Mr. Adams had intended to smuggle the guns from Canada, nothing in the

affidavit would have suggested the presence of smuggled guns, records, or

other gun-smuggling evidence in Mr. Adams’ New Mexico properties in

2013 (when the warrants were signed). See United States v. Snow, 919 F.2d

1458, 1459-60 (10th Cir. 1990) (“Probable cause to search cannot be based

on stale information that no longer suggests that the items sought will be

found in the place to be searched.”).

     5.    Summary

     In these circumstances, the discovery of Mr. Adams’ guns in his

Canadian storage unit would not have contributed to a finding of probable

cause for a search of Mr. Adams’ New Mexico properties.

     B.    Mr. Adams’ 2011 Trips to Canada

     The government also argues that Mr. Adams’ 2009 and 2011 trips to

Canada would have created probable cause of gun smuggling. We disagree.

     According to the affidavit, Mr. Adams made only two trips within

three years of the warrants. Both trips were in 2011. For one of these trips,

Mr. Adams flew to and from Canada. It is unlikely that Mr. Adams could

have smuggled guns through an airport, and the government has not

suggested otherwise.



                                        7
      For the other 2011 trip, Mr. Adams flew to Canada but did not buy an

airline ticket to return to the United States. Based on the absence of a

return ticket, the government suggests that Mr. Adams drove back into the

United States to smuggle a firearm, a Gevarm .22 LR caliber rifle.

Appellant’s Reply Br. at 16 (Mar. 12, 2015). The government adds that if

Mr. Adams smuggled one gun, the court could infer an intent to smuggle

more guns later. Id. The government’s argument is waived and based on

contradictory information.

      In its opening brief, the government referred to the missing Gevarm

firearm. But the government did not argue that the court could infer a

broader intent from the smuggling of a single gun. See Appellant’s

Opening Br. at 18-19, 27 (Dec. 3, 2014). Instead, the government waited to

make this argument in the reply brief, which was too late. See United

States v. Gregoire, 425 F.3d 872, 878 (10th Cir. 2005) (stating that an

argument was waived when it had been newly raised in the appellant’s

reply brief).

      The government’s argument is not only waived but also based on

contradictory information. In one paragraph, the affiant lists the Gevarm as

one of the guns seized from the Canadian storage unit. But in the next

paragraph, the affiant states the Gevarm was missing from the guns seized.

Compare Appellant’s App., vol. I, at 73, with Appellant’s App., vol. I, at



                                      8
75. In light of the contradiction, the court would have no way of knowing

whether the gun had been seized.

     In these circumstances, the 2011 trips to Canada would not contribute

to a finding of probable cause.

     C.    Tax Evasion

     According to the affidavit, Mr. Adams failed to file federal income

tax returns (2006 and 2008-2011), state income tax returns (2010-2011),

and federal firearm and ammunition excise taxes (2006-2011). In addition,

Mr. Adams’ companies (Adams International, SW LLC, Adams Guns, Bob

Adams LLC, and Adams Trust LLC) failed to file tax returns between 2006

and 2011. The government argues that these acts of tax evasion support

probable cause on a charge of gun smuggling.

     The threshold issue is whether the government waived reliance on the

evidence of tax evasion. According to Mr. Adams, the government

conceded in district court that the evidence of tax evasion had not

supported a finding of probable cause. But Mr. Adams misinterprets the

government’s concession. The government conceded only that it could not

avoid suppression of the evidence based on probable cause regarding tax

evasion. The government never questioned the ability to infer gun

smuggling from Mr. Adams’ failure to file tax returns. Thus, the

government has not waived reliance on the tax evidence.



                                     9
      For the sake of argument, we can assume that the failure to file tax

returns could constitute evidence that Mr. Adams wanted to conceal the

amount or source of his income. With this assumption, we might also be

able to infer that Mr. Adams had earned money unlawfully. But the search

warrants were based on a specific type of law-breaking: gun smuggling.

The tax evidence provides no reason to tie Mr. Adams’ income to a gun

smuggling operation.

      D.    Evidence Involving the Inspections in 2006 and 2009

      The government inspected Mr. Adams’ business in 2006 and 2009. In

connection with these inspections, the affiant states that

      ●     Mr. Adams failed to cooperate,

      ●     impeded the inspections by transferring guns to his personal
            collection,

      ●     furnished records with significant discrepancies, and

      ●     violated federal regulations by advertising the sale of guns
            without importer’s marks.

The government argues that this evidence supports probable cause on a

charge of gun smuggling.

      But this evidence predates the signing of the warrants by over three

years. When authorities investigate gun smuggling, they would not

reasonably expect the evidence to remain stationary for years at a time. See

United States v. Roach, 582 F.3d 1192, 1202 (10th Cir. 2009) (“[F]irearm

. . . trafficking [is] not the sort[] of crime[] whose evidence is likely to

                                       10
remain stationary for years at a time.”). Even if Mr. Adams had smuggled

guns from 2006 to 2009, the court could not reasonably have expected

those guns to remain in Mr. Adams’ Albuquerque properties over three

years later. Thus, the government conceded that the evidence was stale.

Oral Arg. at 4:08-4:38. 2 Because that evidence was stale, it would not

contribute to a finding of probable cause. See United States v. Cantu, 405

F.3d 1173, 1177 (10th Cir. 2005) (“A search warrant may not issue if based

upon information that has grown stale.”).

III.   Summary

       Because the excised affidavit does not supply probable cause for a

2013 search of Mr. Adams’ New Mexico properties, we affirm the district

court’s order granting the motion to suppress.


                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge

2
      To overcome this concession, the government stated in oral argument
that the evidence had been “freshened” by the discovery that Mr. Adams
(1) was storing 132 guns in a Canadian storage unit and (2) had taken
recent trips to Canada. Oral Arg. at 4:49-5:28. In theory, otherwise stale
information can be refreshed by more recent events. United States v.
Cantu, 405 F.3d 1173, 1177-78 (10th Cir. 2005). But as discussed above,
these two categories of information could not collectively create a fair
probability that law enforcement would find guns or other indications of
gun smuggling when searching Mr. Adams’ residential and business
properties. Thus, the stale evidence was not “freshened” by discovery of
the storage unit and the Canadian trips.
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