gunsmoke guns search warrant affidavit
TRANSCRIPT
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AO 106 (Rev. 04/10) Application for a Search Warrant
UNITED STATES DISTRICT COURTfor the
District of Colorado
In the Matter of the Search of(Briefly describe the property to be searchedor identify the person by name and address)
Business located at9690 West 44th Avenue, Wheatridge, Colorado80033more fully described in Attachment A,
attached hereto.
)
))
)
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Case No.
APPLICATION FOR A SEARCH WARRANT
I, a federal law enforcement officer or an attorney for the government, request a search warrant and state under
penalty of perjury that I have reason to believe that on the following person or property (identify the person or describe theproperty to be searched and give its location):
SEE ATTACHMENT A, which is attached to and incorporated in this Application and Affidavit
located in the State and District of Colorado , there is now concealed (identify the person or describe theproperty to be seized):
SEE ATTACHMENT B, which is attached to and incorporated in this Application and Affidavit
The basis for the search under Fed. R. Crim. P. 41(c) is (check one or more):; evidence of a crime;; contraband, fruits of crime, or other items illegally possessed;; property designed for use, intended for use, or used in committing a crime;
a person to be arrested or a person who is unlawfully restrained.
The search is related to a violation of:
Code Section Offense Description
26 U.S.C. 7201, 7203 Tax Evasion
X Continued on the attached affidavit, which is incorporated by reference.
Delayed notice of days (give exact ending date if more than 30 days: ) is requestedunder 18 U.S.C. 3103a, the basis of which is set forth on the attached sheet.
s/Benjamin G. HoppingApplicants signature
Benjamin G. Hopping, IRS-CI
Printed name and titleSworn to before me and: signed in my presence.
submitted, attested to, and acknowledged by reliable electronic means.
Date:Judges signature
City and state: Denver, COPrinted name and title
X e y re a e e ec ron c means.
BoydN.Boland
UnitedStatesMagistrateJudge
August 25, 201205 Mar 2013
13-sw-05213-BNB
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Attachment A
Based on my personal observations, the premise to be searched,
9690 West 44th Avenue, Wheatridge, Colorado 80033, is a one-
story, business attached to other businesses located on the
Southeast corner of the intersection of West 44th Avenue and
Iris Street in Wheat Ridge, Colorado. The premise is located on
the north-facing side of the business complex. The premise to
be searched is also identified by a sign above the front door
that reads Gunsmoke, Inc. The premise has a green canvassed
wagon affixed to the roof.
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Attachment B
1. Based on the foregoing and my training and experience
as Special Agent with the Criminal Investigation Division of the
Internal Revenue Service, I respectfully submit that there is
probable cause to believe that for the period of January 1, 2006
to the present, the following items, which constitute evidence
of the commission of, contraband, the fruits of crime, or
instrumentalities of violations of Title 26, United States Code
7201 and 7203 for tax years 2006, 2007, 2008, 2009, 2010 and
2011 will be found at the PREMISES.
2. Personal and business financial records, specifically,
bank and brokerage account records, checks, deposits,
statements, check registers, savings passbooks, withdrawal
slips, certificates of deposit (CD) documents, wire transfers,
cashiers checks, money orders, financial statements, credit
applications, bank and brokerage account applications, loan
documents, loan payments, loan statements, invoices, receipts
and/or bills, ledgers, journals, notes, correspondence or other
records of RICH WYATT, RENEE WYATT and their business Gunsmoke,
Inc. for the years 2008, 2009, 2010 and 2011.
3. Originals or copies of completed Federal Income Tax
Returns for the tax years 2008, 2009, 2010 and 2011 (Forms 1040,
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1040A, 1040EZ, 1040PC, 1040X, 1120, 1120S and 1065).
4. With respect to the above returns, all forms,
schedules, and attachments thereof, including Schedule A
(Itemized Deductions); Schedule B (Interest and Dividend
Income); Schedule C (Profit or Loss From Business); Schedule D
(Capital Gains and Losses); Schedule E (Supplemental Income and
Loss); Schedule EIC (Earned Income Credit Qualifying Child
Information); Forms 2441 (Child and Dependent Care Expenses);
Forms W-2 (Wage and Tax Statement); Forms 1099 (Non-Employee
Compensation Statements); Forms 8453 (U.S. Individual Income Tax
Declarations for Electronic Filing); worksheets and/or
supporting documentation used in the preparation of tax returns;
records identifying the taxpayers for whom these tax returns
have been prepared; and other documents used in the creation
and/or preparation of the above mentioned tax returns.
5. Bank account information for the years 2008 through
2012 including statements, records reflecting dates and amounts
of deposits, copies of checks, withdrawals, interest, debit and
credit memos, deposit slips, checks deposited, withdrawal slips,
and checks issued for withdrawals, Forms 1099 received.
6. Computer(s), computer hardware, computer software,
computer related documentation, computer passwords and data
security devices, digital storage media, any physical object
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upon which computer data can be recorded, gaming devices,
digital communications devices, cellular telephones, cameras,
videotapes, video recording devices, video recording players,
and video display monitors, digital input and output devices
such as keyboards, mouse(s), scanners, printers, monitors,
electronic media and network equipment, modems, routers,
connection and power cords, and external or connected devices
used for accessing computer storage media that was used to
commit or facilitate commissions of Title 26 U.S.C. 7201,
7203.
7. For any computer, computer hard drive, or other
physical object upon which computer data can be recorded
(hereinafter, COMPUTER) that is called for by this warrant, or
that might contain items otherwise called for by this warrant:
a. evidence of who used, owned, or controlled the
COMPUTER at the time the items described in this warrant were
created, edited, or deleted, such as logs, registry entries,
configuration files, saved usernames and passwords, documents,
calendars, browsing history, user profiles, e-mail, e-mail
contacts, "chat" or instant messaging logs, photographs, and
correspondence;
b. evidence of software that may allow others to
control the COMPUTER, such as viruses, Trojan horses, and other
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forms of malicious software, as well as evidence of the presence
or absence of security software designed to detect malicious
software;
c. evidence of the lack of such malicious software;
d. evidence of the attachment to the COMPUTER of
other storage devices or similar containers for electronic
evidence;
e. evidence of counter-forensic programs (and
associated data) that are designed to eliminate data from the
COMPUTER;
f. evidence of the times the COMPUTER was used;
g. passwords, encryption keys, and other access
devices that may be necessary to access the COMPUTER;
h. documentation and manuals that may be necessary
to access the COMPUTER or to conduct a forensic examination of
the COMPUTER;
i. contextual information necessary to understand
the evidence described in this attachment;
j. volatile data necessary to preserve evidence
prior to powering-off and unplugging a running computer.
k. any and all information, notes, software,
documents, records, or correspondence, in any format and medium
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pertaining to violations of Title 26 U.S.C. 7201, 7203.
8. If evidence located on a COMPUTER appears to relate to
criminal acts other than violations of Title 26 U.S.C. 7201,
7203, and that are not listed in this Attachment, those items
will not be further examined unless and until a search warrant
is applied for and issued for evidence of any such separate
criminal act.
DEFINITIONS:
9. As used above, the terms "records" and "information"
include all of the foregoing items of evidence in whatever form
and by whatever means they may have been created or stored,
including any form of computer or electronic storage (such as
hard disks or other media that can store data); any handmade
form (such as writing, drawing, painting); any mechanical form
(such as printing or typing); and any photographic form (such as
microfilm, microfiche, prints, slides, negatives, videotapes,
motion pictures, or photocopies).
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AFFIDAVIT
I, Benjamin G. Hopping, being duly sworn, hereby depose and
state:
INTRODUCTION
1. I am a Special Agent (S/A) with the Internal Revenue
Service (IRS), Criminal Investigation (CI) and have been so
employed since 2001. I have been trained in accounting and
financial investigative techniques at the Federal Law Enforcement
Training Center (FLETC). My formal education includes a
Bachelors degree in Accounting from the University of Northern
Colorado. During my years as a Special Agent with IRS-CI I have
conducted multiple investigations involving criminal tax and
money laundering violations. During these investigations I have
gained experience in debriefing defendants, cooperating witnesses
and other persons who have had personal experience and knowledge
of the activities associated with fraud schemes and other
criminal violations.
2. Based on my review of information obtained from IRS
computer records, conversations with other S/As, and information
obtained from other sources, I am familiar with the facts and
circumstances of this investigation.
PURPOSE
3. I make this affidavit in support of an application for
a warrant to search: GUNSMOKE, INC. located at 9690 West 44th
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Avenue, Wheat Ridge, CO 80033. (THE PREMISES). This affidavit
does not purport to set forth all of my knowledge of or
investigation into this case.
PREMISES TO BE SEARCHED
4. Based on my personal observations, THE PREMISES is a
one-story, business located on the Southeast corner of the
intersection of West 44 Avenue and Iris Street in Wheat Ridge,th
Colorado. THE PREMISES is identified by a sign above the front
door that reads Gunsmoke, Inc. THE PREMISES has a green
canvassed wagon affixed to the roof.
5. Based on the following facts set forth in this
affidavit, I believe that there is probable cause to believe that
WYATT and others have committed violations of Title 26, United
States Code, Sections 7203 and 7201(Failure to File Tax Returns
and Tax Evasion) for the tax years 2006 through 2011. I further
believe that there is probable cause to believe that evidence,
instrumentalities, and fruits of the crimes described above will
be found at THE PREMISES located at 9690 West 44th Avenue, Wheat
Ridge, CO 80033, which location is more fully described in
Attachment A, which is attached hereto and incorporated herein by
reference.
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RELEVANT STATUTES
6. Title 26, United States Code, Section 7203 (Failure to
File Tax Returns), Any person required under this title to pay
any estimated tax or tax, or required by this title or by
regulations made under authority thereof to make a return, keep
any records, or supply any information, who willfully fails to
pay such estimated tax or tax, make such return, keep such
records, or supply such information, at the time or times
required by law or regulations, shall, in addition to other
penalties provided by law, be guilty of a misdemeanor.
7. Title 26, United States Code, Section 7201(Evasion of
Assessment), Any person who willfully attempts in any manner to
evade or defeat any tax imposed by this title or the payment
thereof shall, in addition to other penalties provided by law, be
guilty of a felony.
KNOWLEDGE AND EXPERIENCE OF AFFIANT
8. Based upon your affiants experience, knowledge, and
training, your affiant knows business owners typically maintain
business records at their business location, at their residence
and/or on their person. Your affiant also knows it is common
practice for businesses to maintain records of income, expenses,
profit or loss and asset acquisition and disposition. These
records would include Forms W-2 and 1099, billing records,
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invoices, receipts, prepared books and records, canceled checks,
bank and stock brokerage statements, deposit slips, check stubs,
payroll records, records of capital assets, cash disbursement and
receipt journals, general ledgers, subsidiary ledgers, financial
statements, loan applications, business income and information
tax returns, prepared income tax worksheets and schedules,
business contracts, and other records showing the receipt and
disposition of funds. Your affiant knows from experience in
dealing with business records, the flow of funds into and out of
a business can be tracked by tracing the paper trail. The paper
trail is created by the entries into the business records and
bank accounts, and by the documents received or prepared to
support a transaction. Your affiant also knows that original
business records are ordinarily kept and maintained for extended
periods of time, often several years. Your affiant also knows it
is common practice for businesses to maintain records of the
acquisition and disposition of assets. These records would
include: titles, deeds, mortgages, leases, loan applications,
sales agreements and other records related to ownership.
9. Based on my discussions with ATF Special Agent Nicholas
Horn I understand that Federal Firearms Licensees or FFLS are
required to maintain records of all firearms transactions as
described in Title 27, Chapter II, Code of Federal Regulations
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(CFR) Chapter II part 478, section 478.121
a. Specifically, this section states, The records
pertaining to firearms transactions prescribed by this part shall
be retained on the licensed premises in the manner prescribed by
this subpart and for the length of time prescribed by 478.129.
The records pertaining to ammunition prescribed by this part
shall be retained by this part shall be retained on the licensed
premises in the manner prescribed by 478.125. Section 478.129
as referred to in this statute states that all FFLS shall
maintain Form 4473, Firearms Transaction Record Part I, Over-the-
Counter for not less than twenty (20) years. Every record of a
firearm transaction is evidence of revenue (outgoing) earned by
Gunsmoke, Inc. or cost of goods sold (incoming) incurred by
Gunsmoke, Inc. According to ATF records, Gunsmoke Inc. was an
FFL from April 12, 2006 until May 3, 2012. On or about February
21, 2012, an existing FFL called Triggers was transferred to THE
PREMISES. Triggers holds a current FFL, but has agreed to
voluntarily surrender its license on April 1, 2013. When
Triggers changed its address to THE PREMISES and before or on the
date that Gunsmoke Inc. dissolved its FFL, all of Gunsmoke,
Inc.s firearms should have been entered as acquisitions in
Triggers A & D book as mandated by Title 27 478.121.
Therefore, the records of Gunsmoke Inc.s revenue and expenses
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should still be located at the premises.
10. Based upon your affiant's experience, knowledge, and
training; your affiant knows individuals typically maintain
personal financial records at their residence, their business
location and/or on their person. Your affiant also knows it is
common practice for individuals to maintain records of personal
income and expenses. These records would include Forms W-2, 1098
and 1099, pay stubs, bank statements, brokerage statements,
canceled checks, deposit slips, certificates of deposit, records
of savings accounts, wire transfer records, credit card
statements and information, receipts, individual income tax
returns, and other records showing the receipt and disposition of
funds. Your affiant also knows it is common practice for
individuals to maintain records of the acquisition and
disposition of assets. These records would include titles, deeds,
mortgages, leases, loan applications, and other records related
to ownership.
11. As described above and in Attachment B, which
attachment is incorporated herein by reference, this application
seeks permission to search for records that might be found on the
premises, in whatever form they are found. One form in which the
records might be found is data stored on a computers hard drive
or storage media. Thus, the warrant applied for would authorize
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the seizure of electronic storage media or, potentially, the
copying of electronically stored information.
12. With respect to the federal violations relating to tax
evasion and failure to file tax returns, from my experience and
training and through discussions with other law enforcement
agents, I know that:
a. Individuals engaged in an income-producing activity,
who wish to evade income tax on income earned by that activity,
often keep records in a form of another media, such as on a
computer, reflecting the true earnings of the business and
individually, in order to comprehend their true wealth for future
financing purposes, for obtaining property such as homes and
assets, or to sell the business;
b. Individuals engaged in an income-producing activity,
who wish to evade income tax on income earned by that activity,
often possess copies, in some form, of books and records
reflecting the true income of their activity, in their business.
EVIDENCE OF PROBABLE CAUSE
ATF Investigation
13. In or around June of 2010, S/A Nicholas Horn with the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
received a referral from the Industry Operations division of the
ATF. According to the referral, Wyatt as manager of Gunsmoke,
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Inc. unlawfully possessed six (6) fully automatic weapons in
violation of Title 18 U.S.C. 922(o). S/A Horn initiated an
investigation based on this referral.
14. During the ATF investigation, S/A Horn discovered that
although Wyatt manages and runs Gunsmoke, Inc. he is not the
owner of record. The owner of record is named Victor Rodriguez
(Rodriguez). S/A Horn contacted Rodriguez twice during his
investigation.
15. On or about June 25, 2010, S/A Horn contacted Rodriguez
and requested an interview. Rodriguez responded that he was out
of town and would not return until June 29, 2010. On or about
June 28, 2010, Wyatt contacted S/A Horn and told him that
Rodriguez had contacted Wyatt and asked him why S/A Horn
contacted him. Wyatt told S/A Horn that Rodriguez was just the
owner of Gunsmoke, Inc. and did not have a hand in the day-to-day
operations of the business. Wyatt told S/A Horn that all
questions related to S/A Horns investigation could be directed
to Wyatt because Wyatt ran the business.
16. On or about July 1, 2010, S/A Horn interviewed
Rodriguez. Rodriguez told S/A Horn that he purchased Gunsmoke,
Inc. from Wyatt in 2005 after Wyatt went through a serious
divorce. Rodriguez stated that he could not remember how much he
paid Wyatt for Gunsmoke Inc. Rodriguez stated that at the time
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of the interview Gunsmoke Inc. was not profitable and he did not
receive any income from Gunsmoke Inc. Rodriguez stated he had an
agreement with Wyatt where Wyatt would purchase Gunsmoke Inc.
back from Rodriguez once the business became profitable.
Rodriguez stated that he and Wyatt agreed that Wyatt would
purchase Gunsmoke Inc. by paying Rodriguez a share of the
profits.
Secretary of the State of Colorado
17. Gunsmoke Inc. was incorporated with the State of
Colorado on February 1, 2006 by Rodriguez at 9690 West 44th
Avenue, Wheat Ridge, Colorado 80033. Rodriguez filed a
statement curing Gunsmoke Inc.s filing delinquency December 27,
2010. As of October 29, 2012 this entity is in noncompliant
status for failing to file a periodic report.
18. An entity named Gunsmoke Guns Inc. was incorporated
with the Colorado Secretary of State on April 29, 2011 by Wyatt
at The Premises. This is a different entity with a different
Colorado State identification number than Gunsmoke Inc. As of
October 29, 2012 this entity is in noncompliant status for
failing to file a periodic report.
Mutual of Omaha Bank
19. The Mutual of Omaha Bank provided a bank statement and
supporting documents for Gunsmoke Incs small business checking
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account numbered 000600248428 for the month of August, 2011 to
IRS-CI personnel. The bank statement lists THE PREMISES as the
address for Gunsmoke, Inc. The bank statement shows that
Gunsmoke Inc. had a beginning balance of $27,119.05 and during
August, 2011, $99,666.79 was deposited and $121,847.21 was
withdrawn. The deposits include a check for $40,000 from Gurney
Productions. The check is made out to Gunsmoke, Inc. at THE
PREMISES. According to the website at,
www.gurneyproductions.com, Gurney Productions produces several
reality based television shows including American Guns on The
Discovery Channel. The other withdrawal and deposit items appear
to be for items related to the operation of a firearms retailer.
Discovery Channel
20. Wyatt and his family are part of a reality television
series on the Discovery Channel called American Guns.
According to the shows webpage at:
(http://dsc.discovery.com/tv/american-guns/), The Wyatts are
your typical suburban family except they just happen to own one
of the premiere firearms facilities in the world. Rich Wyatt and
his wife Renee own Gunsmoke, where they buy, sell and trade guns.
They -- and the one-of-a-kind and historic guns they make and
sell -- are featured in the all-new series AMERICAN GUNS.
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Colorado Department of Revenue
21. According to the Colorado Department of Revenue,
Gunsmoke, Inc. has filed sales tax returns for the months of
January, 2008 through October, 2011 with the exceptions of
October of 2009 and March, 2010. Each return where the signature
is legible appears to bear the signature of Rich Wyatt, based on
a review of the signatures and the signature on Rich Wyatts
Colorado Drivers license. The fact that Wyatt signed the sales
tax returns confirms his statement to the S/A Horn that he runs
Gunsmoke, Inc. The 2011 sales tax returns for Gunsmoke, Inc.
reflect the following sales:
Month Net Sales
January, 2011 $18,211.00February, 2011 $12,006.00March, 2011 $9641.00April, 2011 $8279.00May, 2011 $7921.00June, 2011 $7997.00July, 2011 $6261.00August, 2011 $10,013.00
September, 2011 $11,937.00October, 2011 $14,060.00
Total Reported Net Sales 2011 $106,326.00
IRS Transcripts
22. According to IRS transcripts Wyatt did not file U.S.
Individual Income Tax Returns (Form 1040) for the 2008, 2009 or
2010 tax years. Wyatt filed a Form 1040 for the 2011 tax year
that lists a $98,751 loss from his interest in Gunsmoke, Inc.
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There are no other sources of income listed on Wyatts 2011 Form
1040. Neither Gunsmoke Inc. nor Gunsmoke Guns Inc. has ever
filed Federal Income tax returns. Gunsmoke Inc. requested and
received an Employer Identification Number (EIN) in February of
2006. Gunsmoke Inc. has filed employment tax returns during 2007
through 2011 with the exceptions of the first and fourth quarters
of 2010 and the second and third quarters of 2011. Gunsmoke Inc.
reported to the State of Colorado the names of the employees it
paid and the amounts for each quarter. This information was used
to query the IRS Information Returns Processing database (IRP)
for each employee reported to The State of Colorado. The
resulting data is summarized below:
Wages Reported by Gunsmoke, Inc.
Employee Name Year Annual WagesReported to
Colorado
Annual WagesReported to
IRS
Darrell Flores 2007 $4,521.00 $3,058.00
2008 $2,527.20 $0.00
2009 $4,686.80 $0.00
2010 $5,463.80 $0.00
2011 $3,790.80 $5,102.00
Matthew Meece 2007 $13,157.15 $10,619.00
Renee Wyatt 2008 $1,421.00 $0.00
2009 $3,823.60 $0.00
2010 $3,418.00 $0.00
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2011 $2,496.00 $66,000.00
Rich Wyatt 2007 $9,600.00 $8,641.00
2008 $7,200.00 $0.00
TOTAL $ 62,105.35 $ 93,420.00
Based on this analysis and with the exception of the $66,000 that
was reported to the IRS in 2011 on behalf of Renee Wyatt,
Gunsmoke, Inc. showed a pattern of materially underreporting the
wages it paid to its employees to the IRS.
23. Wyatts wife Renee Wyatt has filed Federal Income tax
returns for the tax years 2008 through 2011. Renee Wyatt
reported the following income:
Year Wages Interest Adjusted
Gross Income
Taxable
Income
2008 $3328.00 $163.00 $3491.00 $02009 $3328.00 $62.00 $3390.00 $0
2010 $3328.00 $0 $0 $02011 $66,000.00 $0 $64,500.00 $32,175.
Renee Wyatt did not have a Schedule C, Profit or Loss from
Business (Sole Proprietorship) attached to any of her 2008
through 2011 tax returns which indicates that Renee Wyatt did not
report any of the income from Gunsmoke, Inc. on her tax returns.
24. According to IRS transcripts, on or about December 14,
2012, First Data Merchant Services Corporation filed a Form 1099-
K, Payment Card and Third Party Network Transactions for credit
card sales paid to Gunsmoke at THE PREMISES during the 2011 tax
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year. The EIN listed on the Form 1099-K is Wyatts Social
Security Number. According to the Form 1099-K, Gunsmoke had
$820,028 in credit card sales during 2011. This does not include
cash or check sales.
25. According to the Adams County, Colorado Clerk and
Recorder, the house located at 1164 W. 11 Place, Northglenn,th
Colorado is owned by Renee Reid, now known as Renee Wyatt. Wyatt
and Renee Wyatt are married and share this residence. Wyatt
lists this address on his Colorado Drivers License as his home
address.
26. According to the Jefferson County, Colorado Clerk and
Recorder, Renee Wyatt purchased the house and property located at
7156 Timbers Drive, Evergreen, Colorado 80439 on or about October
22, 2012 for $678,000. Renee Wyatt signed a Deed of Trust
secured by the property with Mutual of Omaha Bank for $400,000.
Based on the public records, Renee Wyatt paid approximately
$278,000 in addition to her mortgage to purchase this house.
27. An entity named Lake Shore Holdings, Inc. was
incorporated with State of Nevada on or about November 29, 2005.
Renee C. Wyatt with an address of 848 N. Rainbow Blvd # 1611, Las
Vegas, Nevada 89107 is listed as the President, Secretary,
Treasurer, and Director. According to the Palm Beach County
Appraiser, a condominium located at 1105 Lake Shore Drive, # 201,
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Lake Park, Florida was purchased in June, 2008 for $163,500 by
Lake Shore Holdings, Inc. with a mailing address of 848 N.
Rainbow Blvd, # 1611, Las Vegas, Nevada. According to the Palm
Beach County Appraiser, another condominium located at 1115 Lake
Shore Drive, # 201, Lake Park, Florida was purchased in July,
2009 for $175,000 by Lake Shore Holdings, Inc. with a mailing
address of 848 N. Rainbow Blvd, # 1611, Las Vegas, Nevada.
28. According IRS transcripts, Lake Shore Holdings, Inc.
with the address of 848 N. Rainbow Blvd, # 1611, Las Vegas,
Nevada filed Form 1120, U.S. Corporation Income Tax Returns (Form
1120) for the years 2005 through 2011. The 2011 Form 1120 does
not list any income, assets or liabilities. The 2010 Form 1120
lists $504,698 in assets, $3,900 of gross rents and no
liabilities. Therefore it does not appear that the condominiums
are encumbered by any mortgages.
29. According to the Florida Department of Motor Vehicles a
1997 Mercedes Benz automobile was registered by Renee Christy
Wyatt with the same date of birth as the aforementioned Renee
Wyatt to 1115 Lake Shore Drive #201, West Palm Beach, Florida.
Based on the Nevada Secretary of State, the IRS transcripts and
the Florida Department of Motor Vehicles, it appears as though
Renee Wyatt opened a Nevada Corporation and purchased two
condominiums for a total of $338,500 either without mortgages or
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has since paid the balance of any mortgages held. During the
same years that Renee Wyatts Nevada Corporation purchased the
condominiums (2008 and 2009), Renee Wyatt reported $3491 and
$3390 respectively of adjusted gross income to the IRS (see table
in paragraph 22).
30. According to the Jefferson County, Clerk and Recorder,
THE PREMISES is owned by a company called Trifecta Capital, Inc.
According to the Colorado Secretary of State, Trifecta Capital
Inc. was registered on February 21, 2006 by V. Manuel Rodriguez
as a foreign entity from Nevada. According to the Nevada
Secretary of State, as of September 27, 2012, the president,
secretary, treasurer and director of Trifecta Capital, Inc. is
Renee Wyatt. According to IRS records, Trifecta Capital, Inc.
has never filed a tax return.
31. According to the Colorado Department of Motor Vehicles,
Wyatt has no currently registered vehicles in his name.
Gunsmoke, Inc. has the following vehicles registered:
Vehicle Dated Registered Expires
2007 Range Rover SUV 2/25/2009 May, 20132004 GMC Truck 5/4/2011 May, 20122001 Audi Sedan 2/19/2011 April, 2013
32. According to IRS transcripts, Wyatt did not receive a
Form W-2, 1099 or Schedule K-1 from Gunsmoke Inc. or Gunsmoke
Guns Inc. for the years 2008 through 2011.
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33. On or about February 27, 2013, S/A Horn entered THE
PREMISES and spoke to Wyatt. While inside THE PREMISES, S/A Horn
observed a computer and a filing cabinet inside a room that Wyatt
identified as his office. S/A Horn reviewed information on a
computer located inside THE PREMISES with an employee named Colt.
S/A Horn saw customer and employee information stored on this
computer. The information included the employee and customer
names, addresses and phone numbers. Wyatt told S/A Horn that he
lives in Evergreen, Colorado and that it took about thirty
minutes for Wyatt to travel from his house to THE PREMISES.
34. On or about February 27, 2013 Industry Operations
Investigator (IOI) Matthew Deasaro entered THE PREMISES and
reviewed the Acquisitions and Dispositions (A&D) book. IOI
Deasaro noticed that on average the A&D book showed a few
firearms transactions each day. A record of all acquisition and
dispositions is required by Title 27 478.1219 (see paragraph 8
above). The A&D book is further described on page 8 of the
Federal Firearms Licensee Quick Reference and Best Practices
Guide, ATF Publication 5300.15. While at THE PREMISES, Wyatt
told IOI Deasaro that he had Gunsmoke Inc.s Form 4473s
(Firearms Transaction Record Part I-Over-The-Counter) stored in
boxes inside THE PREMISES. All FFLs are required to complete
Form 4473s for each firearm sale they make as required by Title
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27 478. Wyatt told IOI Deasaro that he needed time to go
through the Form 4473s to remove the receipts that were stapled
to some of the Form 4473s. IOI Deasaro informed your affiant
that it is common practice for firearms dealers to staple sales
receipts to Form 4473s for record keeping purposes.
35. Based on the ATF investigation, bank records, the
Discovery Channel, The Colorado Department of Revenue, Colorado
Department of Motor Vehicles, Adams County Clerk and Recorder and
IRS records, Wyatt has failed to report his income for the years
2008 through 2011 and has used Rodriguez as a nominee to disguise
his involvement in earning his income from Gunsmoke Inc. in
violation of Title 26 USC 7201 and 7203. As manager and owner
in fact of Gunsmoke Inc. according to the Discovery Channel,
Wyatt has also failed to report the income earned by Gunsmoke
Inc. to the IRS. Wyatt has also maintained a lifestyle
commensurate with his actual income by living in a house owned in
his wifes name and driving cars owned in his business name.
36. Gunsmoke Inc. and the Discovery Channel appear to be
Wyatts sole sources of income. The bank account statement
produced by Mutual of Omaha Bank lists Gunsmoke Inc. as the
account holder at the PREMISES. The PREMISES address was also
provided to the Colorado Secretary of State. Gunsmoke Inc. is a
retail gun store. Based on my training and experience retail
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businesses maintain their records at the same location where they
conduct their business.
COMPUTER DATA
37. As described above and in Attachment B, I submit that
if computers or storage media are found at the Subject Premises,
there is probable cause to search and seize those items for the
reasons stated below. Some of these electronic records might
take the form of files, documents, and other data that is user-
generated. Some of these electronic records, as explained below,
might take a form that becomes meaningful only upon forensic
analysis.
38. For example, based on my knowledge, training, and
experience, I know that a powered-on computer maintains volatile
data. Volatile data can be defined as active information
temporarily reflecting a computer's current state including
registers, caches, physical and virtual memory, network
connections, network shares, running processes, disks, floppy,
tape and/or CD-ROM and printing activity. Collected volatile
data may contain such information as opened files, connections to
other computers, passwords used for encryption, the presence of
anti-forensic tools, or the presence of programs loaded in memory
that would otherwise go unnoticed. Volatile data and its
corresponding evidentiary value is lost when a computer is
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powered-off and unplugged.
39. Based on my knowledge, training, and experience, I know
that computer files or remnants of such files can be recovered
months or even years after they have been downloaded onto a
storage medium, deleted, or viewed via the Internet. Electronic
files downloaded to a storage medium can be stored for years at
little or no cost. Even when files have been deleted, they can
be recovered months or years later using forensic tools. This is
so because when a person deletes a file on a computer, the data
contained in the file does not actually disappear; rather, that
data remains on the storage medium until it is overwritten by new
data. Therefore, deleted files, or remnants of deleted files,
may reside in free space or slack space-that is, in space on the
storage medium that is not currently being used by an active
file-for long periods of time before they are overwritten. In
addition, a computers operating system may also keep a record of
deleted data in a swap or recovery file.
40. Also, again based on my training and experience, wholly
apart from user-generated files, computer storage media-in
particular, computers internal hard drives-contain electronic
evidence of how a computer has been used, what it has been used
for, and who has used it. This evidence can take the form of
operating system configurations, artifacts from operating system
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or application operation, file system data structures, and
virtual memory swap or paging files. Computer users typically
do not erase or delete this evidence, because special software is
typically required for that task. However, it is technically
possible to delete this information. Data on the storage medium
not currently associated with any file can provide evidence of a
file that was once on the storage medium but has since been
deleted or edited, or of a deleted portion of a file (such as a
paragraph that has been deleted from a word processing file).
Web browsers, e-mail programs, and chat programs store
configuration information on the storage medium that can reveal
information such as online nicknames and passwords. Operating
systems can record additional information, such as the attachment
of peripherals, the attachment of USB flash storage devices or
other external storage media, and the times the computer was in
use. Computer file systems can record information about the
dates files were created and the sequence in which they were
created.
41. As further described in Attachment B, this application
seeks permission to locate not only computer files that might
serve as direct evidence of the crimes described on the warrant,
but also for evidence that establishes how computers were used,
the purpose of their use, who used them, and when.
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42. In cases like this one, where the evidence may consist
partly of graphic files, the monitor and printer are also
essential to show the nature and quality of the graphic images
that the system can produce. In addition, the analyst needs all
assisting software (operating systems or interfaces, and hardware
drivers) and any applications software, which may have been used
to create the data (whether stored on hard drives or on external
media), as well as all related instructional manuals or other
documentation and security devices. Moreover, searching
computerized information for evidence or instrumentalities of
crime commonly requires the seizure of the entire computers
input/output periphery devices (including related documentation,
passwords and security devices) so that a qualified expert can
accurately retrieve the systems data in a controlled
environment.
43. Devices such as modems can contain information about
dates, frequency, and computer(s) used to access the internet.
The monitor, keyboard, and mouse may also have fingerprints on
them indicating the user of the computer and its components.
44. User attribution evidence can also be found on a
computer and is analogous to the search for indicia of
occupancy while executing a search warrant at a residence. For
example, registry information, configuration files, user
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profiles, e-mail, e-mail address books, chat, instant
messaging logs, photographs, and correspondence (and the data
associated with the foregoing, such as file creation and last
accessed dates) may be evidence of who used or controlled the
computer or storage medium at a relevant time. Further, in
finding evidence of how a computer was used, the purpose of its
use, who used it, and when, sometimes it is necessary to
establish that a particular thing is not present on a storage
medium. For example, the presence or absence of counter-forensic
programs or anti-virus programs (and associated data) may be
relevant to establishing the users intent.
45. Searching Computer(s) for the evidence described in the
attachment may require a range of data analysis techniques. For
example, information regarding user attribution or Internet use
is located in various operating system log files that are not
easily located or reviewed. Or, a person engaged in criminal
activity will attempt to conceal evidence of the activity by
hiding files or giving them deceptive names. As explained
above, because the warrant calls for records of how a computer
has been used, what it has been used for, and who has used it, it
is exceedingly likely that it will be necessary to thoroughly
search storage media to obtain evidence, including evidence that
is not neatly organized into files or documents. Just as a
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search of a premises for physical objects requires searching the
entire premises for those objects that are described by a
warrant, a search of this premises for the things described in
this warrant will likely require a search among the data stored
in storage media for the things (including electronic data)
called for by this warrant. Additionally, it is possible that
files have been deleted or edited, but that remnants of older
versions are in unallocated space or slack space. This, too,
makes it exceedingly likely that in this case it will be
necessary to use more thorough techniques.
46. Based upon my knowledge, training and experience, I
know that a thorough search for information stored in storage
media often requires agents to seize most or all storage media to
be searched later in a controlled environment. This is often
necessary to ensure the accuracy and completeness of data
recorded on the storage media, and to prevent the loss of the
data either from accidental or intentional destruction.
Additionally, to properly examine the storage media in a
controlled environment, it is often necessary that some computer
equipment, peripherals, instructions, and software be seized and
examined in the controlled environment. This is true because of
the following:
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a. The nature of evidence. As noted above, not all
evidence takes the form of documents and files that can be easily
viewed on site. Analyzing evidence of how a computer has been
used, what it has been used for, and who has used it requires
considerable time, and taking that much time on premises could be
unreasonable. Also, because computer evidence is extremely
vulnerable to tampering and destruction (both from external
sources and from code embedded in the system as a booby-trap),
the controlled environment of a laboratory is essential to its
complete and accurate analysis.
b. The volume of evidence and time required for an
examination. Storage media can store the equivalent of millions
of pages of information. Additionally, a suspect may try to
conceal criminal evidence; he or she might store it in random
order with deceptive file names. This may require searching
authorities to peruse all the stored data to determine which
particular files are evidence or instrumentalities of crime.
Analyzing evidence of how a computer has been used, what it has
been used for, and who has used it requires considerable time,
and taking that much time on premises could be unreasonable. As
explained above, because the warrant calls for forensic
electronic evidence, it is exceedingly likely that it will be
necessary to thoroughly examine storage media to obtain evidence.
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Reviewing information for things described in the warrant can
take weeks or months, depending on the volume of data stored, and
would be impractical and invasive to attempt on-site.
c. Technical requirements. Computers can be configured in
several different ways, featuring a variety of different
operating systems, application software, and configurations.
Therefore, searching them sometimes requires tools or knowledge
that might not be present on the search site. The vast array of
computer hardware and software available makes it difficult to
know before a search what tools or knowledge will be required to
analyze the system and its data on-site. However, taking the
storage media off-site and reviewing it in a controlled
environment will allow its examination with the proper tools and
knowledge.
d. Variety of forms of electronic media. Records sought
under this warrant could be stored in a variety of storage media
formats that may require off-site reviewing with specialized
forensic tools.
47. Based on the foregoing, and consistent with Rule
41(e)(2)(B), when persons executing the warrant conclude that it
would be impractical to review the media on-site, the warrant I
am applying for would permit seizing or imaging storage media
that reasonably appear to contain some or all of the evidence
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described in the warrant, thus permitting its later examination
consistent with the warrant. The examination may require
techniques, including but not limited to computer-assisted scans
of the entire medium, that might expose many parts of a hard
drive to human inspection in order to determine whether it is
evidence described by the warrant.
CONCLUSION
48. Based on the foregoing facts and my training and
experience, I believe there is probable cause to believe that the
fruits, instrumentalities, and evidence of violations of United
States Code, Title 26, 7203 and 7201 (Failure to File and Tax
Evasion), will be found at 9690 West 44th Avenue, Wheat Ridge, CO
80033, the location to be searched as more fully described in
Attachment A.
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49. In consideration of the foregoing, your affiant
requests that this Court issue a search warrant authorizing the
search of the location described in Attachment A,and the seizure
of items as more fully described in Attachment B, which
attachment A and B are incorporated herein by reference,as fully
set forth herein.
s/Benjamin G. HoppingBenjamin G. HoppingSpecial Agent, IRS-CI
Reviewed by AUSA Suneeta Hazra
Subscribed and Sworn to before me
On this __ day of March, 2013.
__________________________________UNITED STATES MAGISTRATE JUDGE
5th
__ ___________________IT STATES MAGISTRATE
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