Feds raid Gibson (follow-up)

[gryphon]

Six months later, no charges filed, property still seized.

 

http://reason.com/blog/2012/02/23/the-great-gibson-guitar-raid-months-late

 

The government has yet to file any charges or allow Gibson a day in court to makes its case, much less retrieve its materials. "This is not about responsible forestry and sustainable wood or illegal logging, this is about a bureaucratic law," argues Juszkiewicz, who testified last year before a congressional hearing convened by Sen. Rand Paul (R-Ky.). It is, he says, "a blank check for abuse."

 

[video:youtube]

[Dannyalcatraz]

Not that surprising, really.

[Bottom End]

So Gibson continues to lose revenue, employees lose wages, and some bureaucrat denies Gibson due process. Shame.

[Dannyalcatraz]

It takes a while to file a case, especially one like this. The agencies will have to assemble, organize & present their evidence to the prosecutors. They will then assess the accumulated evidence to see if it is sufficient to bring to trial- a different & higher threshold than is required for the warrants that got them their evidence.

 

After that assessment, the case will conclude by trial, (guilt or innocence), pre-trial dismissal with prejudice, pre-trial dismissal without prejudice, or by the prosecutors deciding the evidence does not support the formal filing of charges.

 

And generally speaking, until the case concludes in one of those fashions, the evidence isn't leaving the possession of the authorities, because once it does, it is no longer usable evidence.

 

And that IS due process.

[gryphon]

It takes a while to file a case, especially one like this.

Well, let's see. The .gov still hasn't done anything on the first raid that took place, what almost three years ago? What's your excuse for that?

 

[Dannyalcatraz]

Well, it depends on a variety of factors:

 

• complexity of the case.
  
• number of and ease of of obtaining witnesses to be deposed.
  
• complexity of the interrogatories.
  
• Amount of evidence
  
• Number and nature of motions (for suppression, admission, production, extended recesses, quashing, dismissal,etc.) filed by each side- each of which must be responded to by the other side* AND considered by & ruled on by the presiding judge.
  
• Other cases in the court's docket.
  

 

I know of several cases that were in the courts for 20 years, and one was recently dismissed after 50 years. And another one that just had a new plaintiff added after 50 years.

 

A personal friend was a whistleblower in a multimillion dollar case against a branch of the government. He was fired for this (a federal crime) while serving on a federal jury (a federal crime). He has been waiting a verdict in his small aspect of the case for more than a decade. Part of this is because the 9/11 cases got transferred into the Circuit that was handling his case.

 

If Gibson's attorneys are fighting tooth & nail, there could have been hundreds of motions filed...in the first few months of the case. And the Gov't will be working just as furiously on the other side.

 

Besides the physical evidence, there may be hundreds of thousands of pages of documents to be found, shipped, read and analyzed. Not quickly scanned over- read thoroughly, pored over virtually word-by-word.

 

And so forth...

 

 

 

 

 

 

 

 

 

* each motion has built into it a timeline of 7, 10, 20, 30 or more days for the other side to respond, depending on what kind of motion it was...and extensions to those deadlines may be available

[picker]

I seem to recall something about a right to a speedy trial. It was put in the constitution to keep the government from seizing people and/or their property, and just letting them rot. Three years is just too long for a government agency to be able to hold private property without presenting a case. They're just stalling because they can't make their case, and their butts are on the line if they don't.

[Dannyalcatraz]

I seem to recall something about a right to a speedy trial.

 

Yep, but it takes 2 to tango.

 

If the Govt sends a motion for production of "all documents relevant to _________"- a common request- then they have to produceall documents relevant to _________, whether that's one or ten thousand. (And "a document" could be one page or hundreds.)

 

Those documents could be incriminatory, or they might contain exculpatory evidence (sayy, proof that Gibson actually used the proper codes). If its the former, that goes to building the case, if the latter, it could be grounds for choosing not to file. Either way, the Gov't will need to read all those documents to know what is what.

 

And the thing is, there is a common defense tactic called a "document dump"- you send more than you actually need to (usually timed to arrive close of business Friday) in hopes to 1) buy you time to formulate your actual defense, and 2) potentially cause the opposition to simply miss the incriminating documents in the sea of other, irrelevant documents.

 

Then, as I said, there are motions to quash, exclude evidence, etc.- again, mainly defense tools- each of which takes time by the opposition AND the court to address. Sometimes weeks or months per motion.

 

Bonus: screw up the procedure for the proper response to a motion,nyou'll could lose the argument of the underlying motion, you could have to back up and resubmit a bunch of stuff,nor you might even get your case tossed (with or without prejudice, depending on the nature and timing of the mistake).

 

And even the government has limits to how much it's willing to spend on a case. Defendants who delay long enough may be able to settle for a sum far less than the penalties they'd have been hit with...without setting legal precedent that could bite them later. If you watch late night TV, you'll see a bunch of commercials for my colleagues who fight the IRS this way, and get tax scofflaws off for less money than they actually owe the Govt.

 

I don't know the exact reasons why nothing seems to have happened in the 3 years since the first raid, but I can guarantee you that at least part of that passage of time is due to Gibson's defense team doing their jobs and doing them well.

[Dannyalcatraz]

Ask yourself this question: how long does it take to depose a CEO of an international company for a lawsuit?

 

If he has something to hide, he can hop around the world, ostensibly on business. Or claim that he needs to get relevant info to refresh his recollection from "the NY office"- and not hook up with that office for some time. All legal until proven deliberately obstructionist. If he continually and deliberately does not "make himself available" he may be subpoenad, a process that takes some time itself.

 

Even if he has NOTHING to hide, his legitimate scheduling issues may delay or interrupt the deposition process for a considerable time.

 

And after that, the sheer volume of questions to be written, asked and answered may make the process itself take weeks or months of actual questioning. And anything that complex will involve scheduled breaks.

 

And that is for a single executive within the company being investigated.

[pinkjimiphoton]

two words: bull sh*t. i think gibson's just being messed with for not kissing the fed's overgrown tookus.

 

not that anyone here is bs'ing...but the feds are. it all comes down to a show of force, imho.

[Dannyalcatraz]

You're entitled to your opinion, but I know the process.

 

If Gibsons attorneys didn't file anything or fight any of the Gov'ts motions, that case would be over by now. Instead, they're doing their jobs. At one point, Gibson tried to quash the investigation springing from the first raid. When that happens, everything stops (or is supposed to) until the judge rules on whether the investigation can be quashed or it continues. Gibson lost, but that added months to the process.

 

http://soundandfair.org/gibson-guitars-fails-to-overturn-illegal-madagascan-rosewood-and-ebony-charge

 

How many computers did the Feds seize? How many gigabytes or terabytes of electronic data have to be searched through (admittedly, largely using search algorithms)?

 

Regardless of the impetus for the raid, a case like this takes a lot of time. Period. End of story.

[Guitarzan]

i suggest they get Judge Judy on this. it would awesome.

[Dannyalcatraz]

Personally, I'd rather see this go to mediation than to court- faster, cheaper, and avoiding the possibility of making bad precedent on a disputed definition of the Lacey Act's terms.

 

(Note to self: good topic for presentation.)

[Scott Fraser]

And, let's face it, the whole matter has become very inflamed due largely to very provocative statements by a confrontational & arrogant CEO who has sought to make an enforcement issue into a political issue.

[pinkjimiphoton]

well, in the end, it comes down to this....under the current fed law, gibson would have to outsource their work to get fingerboard blanks made...is that what's best for america? to get even MORE stuff done overseas?

 

we're talking like 1/8th of an inch (if that) of wood here, and wood that the source government doesn't have an issue with being sold. it's OUR government that has the issue...i side with henry on this one.

[Dr. Ellwood]

So why should Henry roll over? let the DOJ roll over!

[Dannyalcatraz]

..under the current fed law, gibson would have to outsource their work to get fingerboard blanks made

That is not accurate.

 

Under current law, you can have your fingerboard blanks made anywhere you want, including the USA. You just have to make sure:

 

1) you're not using illegally harvested woods

2) you document your supply chain as both the USA and manufacturing country demand so that all officials involved can ascertain that you're not using illegally harvested woods

3) you fill out your import paperwork properly so that you pay the proper import duties- if there are any- for what you're importing.

 

That's it.

 

If you failed at #1, you're contributing to illegal harvesting and possible extinction of species. We don't want that, right?

 

If you failed at #2, you're being sloppy, and at worst, you get a slap on the wrist (as far as fines go) and a expensive lesson on where NOT to cut corners.

 

If you failed at #3, you're cheating on taxes in a way that not only means the Govt doesn't get paid, but you're behaving in an anti-competitive way that keeps your overhead down artificially as compared to Fender and others. (You are tilting the economic playing field unfairly in your favor.)

 

So why should Henry roll over? let the DOJ roll over!

 

Assuming, arguendo, that Gibson is doing what the govt alleges deliberately, there is no reason the DOJ should "roll over", and plenty of reasons besides the ones just listed why other guitar manufacturers (presumably following the law) shouldn't want them to.

 

If it isnt deliberate, they'll tighten up their practices and never worry again.

 

If the Feds are wrong, Gibson may be able to sue for lost revenue related to this prosecution (I'm not 100% on remedies in the Federal court system).

 

And as for why Gibson and only Gibson? F&G is a small agency ($2.3B budget & few agents) with a lot of responsibilities and area to cover, namely every point of import in the United States...and every store within it...and every field, forest lake & stream in America. It's likely:

 

1) they can only handle one case like this at a time

2) this may be a test for them and a warning to other manufacturers

 

If this proves to be too big a task for their resources, I would not be surprised to see them either ask for a bigger budget and/or seek extrajudicial means- such as the aforementioned mediation or other ADR- to deal with cases like this.

[Scott Fraser]

well, in the end, it comes down to this....under the current fed law, gibson would have to outsource their work to get fingerboard blanks made...is that what's best for america? to get even MORE stuff done overseas?

we're talking like 1/8th of an inch (if that) of wood here, and wood that the source government doesn't have an issue with being sold. it's OUR government that has the issue...

 

If that's all it is, (and I don't know that that's all it is,) then that's really a technical issue, one that reasonable people on both sides can find a solution for. An 1/8th" of wood is not an insurmountable problem. It is not a political issue, it's technical. I suspect there's more to it than 1/8th" of wood, though.

 

i side with henry on this one.

 

None of us here have access to the evidence, so we should side with logic, & hope that reason is allowed to prevail.

[pinkjimiphoton]

i cry bullsh*t on the feds.

[Dannyalcatraz]

Time will tell.

[Bartholomew]

This whole thing sux - I'm trying to find a Les Paul Studio or SG with an ebony fretboard and either with the slim taper 60s neck profile.

 

Not in Montreal due to this and can't be ordered but I can get them online exclusive.

[gryphon]

I suspect there's more to it than 1/8th" of wood, though.

Actually there isn't, although it is really 4mm, which is just slightly more (3/100") than 1/8", so use 4mm or 1/8", either one.

 

6mm thick wood is okay, 10mm thick wood supposedly is not, although Gibson says they have paperwork from India allowing it.

[Dannyalcatraz]

That is just the starting point used to get one of the several warrants used in the raids. There may be more than that.

 

For instance, there may be allegations besides the wood thickness thing, but the wood thickness thing is all they could prove sufficiently to a judge pre-raid to get a warrant. The raid, then, would be to 1) bolster the evidence about the fingerboards and 2) find evidence of further wrongdoing.

 

S.O.P.

 

As for the Indian paperwork, what India allows as an export and what the USA allows as an import are not necessarily the same thing. Just because you acquire something legally in one country doesnt mean you can bring it into this one- all kind of legal exports get confiscated at US borders, airports and ports every day.

 

And the same goes in reverse. When I traveled to Russia in 2005, I had to get special permission to bring certain electronics into the country. I opted to do without.

[gryphon]

I hope we're not getting as bad as Russia!

[gryphon]

If Gibson's attorneys are fighting tooth & nail, there could have been hundreds of motions filed.

I would imagine they are. Here's an excerpt of Gibson's reply to the .gov telling them they couldn't have their wood back from the 2009 raid. This was filed about six months ago.

 

Claimant, Gibson Guitar Corp. (Gibson), opposes the United States of Americas (the U.S. Government) motion to strike (Docket Entry 30). The U.S. Governments position transcends the heights of irony, asking the Court to protect Madagascar law by rejecting the official acts of the very Madagascar Government officials charged with interpreting and enforcing that law. To accept that position would be stretching the Lacey Act beyond recognition. The circular logic supporting the U.S. Governments motion is novel and thin. The U.S. Government contends that, even though the Madagascar Government officially approved the export of the ebony wood at issue in this case, the wood is nevertheless contraband because someone in the United States has rejected the Madagascar Governments approval and decided that Madagascar law was violated. And because no person may lawfully possess contraband, the U.S. Governments syllogism continues, Gibson may not challenge forfeiture. In essence then, the U.S. Government argues that because it has unilaterally determined the ultimate issue in this case (i.e., whether the wood is legal or contraband), Gibson may not challenge that determination. The U.S. Governments startling position smacks of something from an Orwell novel and lacks any legal support even among the authorities cited in the U.S. Governments own brief. Gibson plainly has standing to challenge the forfeiture of ebony wood, which even the U.S. Government concedes is not contraband per se.

 

In actuality, not only is the ebony wood at issue not contraband per se, it is legal as a matter of law. Sworn affidavits from Madagascar officials and certified copies of Madagascar Government documents establish beyond doubt that the wood at issue was legally exported to the German supplier that sold it to Gibson. The U.S. Government faces an insurmountable burden, for it cannot overcome the undisputed proof that the wood at issue was exported with the express written approval of the Madagascar Government. The U.S. Government has no authority to overrule the official acts of the Madagascar Government in matters concerning Madagascar law.

I am not an attorney but I do find all of this very interesting.

[Dannyalcatraz]

That's a textbook example of the kind of broadside I'd expect for the quality of attorney Gibson can afford. Some of it is sound legal reasoning that, if true, works in Gibson's favor. Some is high-grade rhetorical BS that is basically irrelevant, but may sway some minds.

[pinkjimiphoton]

I suspect there's more to it than 1/8th" of wood, though.

Actually there isn't, although it is really 4mm, which is just slightly more (3/100") than 1/8", so use 4mm or 1/8", either one.

 

6mm thick wood is okay, 10mm thick wood supposedly is not, although Gibson says they have paperwork from India allowing it.

 

that's what i'm talking about. gibson was told that if they had the fingerboards milled to tolerance outside the country (like i said) the problem could be resolved. by OUTSOURCING yet MORE SKILLED AMERICAN JOBS.

 

that is a fuggin' travesty. so...for 4 mm, they get to close down and endanger one of the great guitar makers on the planet, who also if memory serves was one of the seminal champions of renewable resources...

 

again...bullsh*t on the feds.

 

they've also siezed antique pianos and other instruments that have ivory etc...

 

if you can't prove the provenance of your guitar, they can sieze it...and all you can do is give it up, or re-play ruby ridge.

 

travesty.

[Dannyalcatraz]

 

again...bullsh*t on the feds.

 

they've also siezed antique pianos and other instruments that have ivory etc...

 

The pianos to which you refer were probably from Atlanta-based A-440 Pianos, I'm guessing.

 

Well, those were NOT pianos with ivory keys, but 1,770 piano ivory keys (not attached to any piano) which were smuggled into the country "hidden in a crate labeled as furniture and personal effects. "

 

In addition, the paperwork Pascal C. Vieillard (the owner) filed for importing the pianos alleged that 10 of the 11 imported pianos did not have ivory keys.

 

If he had been honest, he would have been able to legally import those pianos- they would have been grandfathered under the Lacey Act- but he would have been forced to pay a bit more money to do so. Instead, he lied, cheated, and smuggled to save $$$...and got caught.

 

http://www.awionline.org/awi-quarterly/2011-spring/atlanta-piano-dealer-strikes-wrong-note-illegal-ivory

 

http://www.atlawblog.com/2011/03/atlanta-piano-company-owner-fined-for-ivory-smuggling/#more-2239

 

Of course, that won't stop others from spreading the misinformation.

[gryphon]

Pascal C. Vieillard

 

 

 

[webe123]

Personally, I think this would not have gone on so long IF a federal judge did not allow the federal government to extend thier timetable for presenting their evidence.

 

I am also a believer that Gibson does desrerve it's day in court and the longer this goes on, DESPITE what a lot of people on here have stated, that it starts to look bad for the federal government.

 

I am no fan of Gibson, but I DO believe in fairness in law, even for a company.

 

What I hope will happen, is that the federal judge that gave the government the extended time in the first place, will step in and order them to present their case if he feels like the government is dragging their feet or abusing their authority.

 

Let's see how fast the government can get it's act together if they are forced to. I think it would happen and happen quick if a federal judge gets tired of their delay tactics and orders them to present their case....ready or not!