Two of the supervising agents implicated in the Operation Fast and Furious gun-trafficking scandal are mounting a counteroffensive, arguing they had no choice but to let criminal suspects buy guns.

Last month, lawyers for ATF supervisors Bill Newell and David Voth sent letters to two members of Congress who are leading an investigation into the Phoenix-based probe of people buying guns in Arizona for criminals in Mexico.

One of their key arguments: From the operation's inception in September 2009 until June 2010, federal prosecutors told the bureau of Alcohol, Tobacco, Firearms and Explosives agents running the investigation that they did not have probable cause to arrest the people buying the weapons or seize the guns from them. During that time, suspects bought the majority of the nearly 2,000 guns they ended up purchasing while being investigated.

"According to the prosecutor, the agents lacked sufficient evidence that the firearms were illegally purchased, and it would have been unlawful for the agents to seize them," attorney Joshua Levy said in a letter on Voth's behalf to Rep. Darrell Issa, R-Calif., and Sen. Charles Grassley, R-Iowa. "Under those circumstances, non-interdiction by the agents is not gunwalking."

This version of events runs counter to what Issa and Grassley have found in their investigation of Fast and Furious, which has singled out Voth, then the group supervisor overseeing the case, and Newell, then the special agent in charge of ATF's Phoenix division.

"Allowing guns to fall into the hands of the (drug trafficking organizations) was the operation's central goal," a staff report written for Issa and Grassley concluded last year.

Fast and Furious came to light only after two of the guns sold to a suspect in the investigation ended up at the scene, west of Rio Rico, of the murder of U.S. Border Patrol Agent Brian Terry on Dec. 14, 2010.

"A tricky situation"

In their letters - sent to Issa and Grassley but published online by - the two former ATF supervisors say agents chafed against the limits put on them by prosecutors at the U.S. Attorney's Office in Phoenix. But they had to abide by the prosecutors' decisions, and it was determined at a Jan. 5, 2010, meeting that the agents didn't have a case yet against the people they suspected of buying guns for Mexican criminal groups.

Voth told investigators about the conundrum in an interview last year.

"I don't think that agents in Fast and Furious were forgoing taking action when probable cause existed," he said. "If the U.S. Attorney's Office says we don't have probable cause, I think that puts us in a tricky situation to take action."

The argument is undermined by some evidence released by congressional investigators.

Some gun dealers who cooperated in the investigation told agents in spring 2010 they didn't want to keep selling to some of the ATF's targets, but agents asked them to keep selling. One dealer even worried in an email that the guns he was selling might end up being used against a Border Patrol agent - six months before Terry was killed.

Voth told a dealer in an April 13, 2010, email: "I understand that the frequency with which some individuals under investigation by our office have been purchasing firearms from your business has caused concerns for you. … However, if it helps put you at ease we (ATF) are continually monitoring these suspects using a variety of investigative techniques which I cannot go into (in) detail."

Also, investigative documents show that agents talked about modifying the flow of weapons. One key briefing paper on Fast and Furious, written by ATF agents on Jan. 8, 2010, says:

"Currently our strategy is to allow the transfer of firearms to continue to take place, albeit at a much slower pace, in order to further the investigation and allow for the identification of additional co-conspirators who would continue to operate and illegally traffic firearms."

straw buyers

Still, former Arizona Attorney General Terry Goddard confirmed last week that federal prosecutors in Phoenix were hesitant to take on some gun-trafficking cases. The biggest difficulty with prosecuting "straw buyers" who use their clean records to buy guns for other people, is showing that they never intended the gun to be for themselves, Goddard said.

"You have to prove that at the time he filled out the form he did not intend to keep the gun for personal use," Goddard said. A defendant "can say, 'I changed my mind after I left the store.' "

However, a former federal prosecutor in Tucson, defense attorney Sean Chapman, says prosecutions do happen against people accused of falsely stating on required forms that a purchased firearm is for them.

"You have to represent that you're the actual buyer," Chapman said. "So, if you're buying the gun for somebody in Mexico, then that's a felony."

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Contact reporter Tim Steller at or 807-8427.