Efraim Diveroli: 9-27-1o Transcript of Detention Hearing - Gun Possession Case

8/18/2019 Efraim Diveroli: 9-27-1o Transcript of Detention Hearing - Gun Possession Case

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1 UNITED STATES DISTRICT COURT

2 MIDDLE DISTRICT OF FLORIDA

3 ORLANDO DIVISION

4 Docket No. 10-1269-01

5

6 . . . . . . . . . . . . . . . ..UNITED STATES OF AMERICA :

7 :Plaintiff : Orlando, Florida

8 v. : August 23, 2010: 10:00 A.M.

9 EFRAIM DIVEROLI ::

10 Defendant. :. . . . . . . . . . . . . . . ..

11

12

13 TRANSCRIPT OF DETENTION HEARING

14 BEFORE THE HONORABLE DAVID A. BAKER

15 UNITED STATES MAGISTRATE JUDGE

16

17 APPEARANCES:

18

19 For the Plaintiff: Bishop Ravenel

20

21 For the Defendant: Cynthia Hawkins

22 Marko Cerenko

23

24 Proceedings recorded by tape-recording, transcript produced

25 by computer-aided transcription.

Case 6:10-mj-01269-GJK Document 13 Filed 09/27/10 Page 1 of 42 PageID 30


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1 P R O C E E D I N G S

2 THE DEPUTY CLERK: The case number is 10-1269-01.

3 The United States of America vs. Efraim Diveroli. Counsel,

4 please state your appearances for the record.

5 MR. RAVENEL: Good morning, Your Honor. Bishop

6 Ravenel for the United States, with me is Kevin McCann of

7 ATF.

8 MS. HAWKINS: Good morning, Your Honor. Cynthia

9 Hawkins, I'm here on behalf of the defendant, Mr. Diveroli,

10 he's seated to my left. And also present is counsel from

11 the Southern District, Corporate Counsel as it were, Marko

12 Cerenko.

13 MR. CERENKO: Good morning, Your Honor.

14 THE COURT: All right. And the defendant was seen

15 on initial appearance last week with Judge Kelly and the

16 matter was continued to today for purposes of preliminary

17 hearing and detention hearing.

18 There's reference in the memorandum from Pretrial

19 Services to potential for other paperwork from the Southern

20 District. Mr. Ravenel, what's going on with that?

21 MR. RAVENEL: My understanding in speaking with

22 the Pretrial Services officer is on the last page of your

23 report, there's a violation that was signed on the 19th, the

24 day before he was arrested here. There's an additional

25 violation based on his new arrest that they're seeking to



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1 have him revoked in the Southern District.

2 I understand that the U.S. Attorney's Office

3 supports that revocation of his bond and it's been in front

4 of this court a number of times based on bond violations.

5 Also, I understand --

6 THE COURT: This one from the 19th was signed by

7 Judge Lenard?

8 MR. RAVENEL: I don't know. I don't know the

9 answer to that. I know that there was going to be a hearing

10 set. There was not going to be a warrant issued based on

11 that violation. Do you know whether that was signed by the

12 judge?

13 MS. HAWKINS: Your Honor, it appears that the

14 violation on the 19th was requesting a show cause hearing

15 and it should be set. I noticed the new violation report

16 was prepared by the officer this morning; however, the Judge

17 has not yet signed that violation. In that one, they are

18 requesting a warrant.

19 THE COURT: All right. And can somebody explain

20 to me why the sentencing has taken a year down there? Other

21 than it's the Southern District.

22 MR. RAVENEL: Based on -- my understanding is he's

23 cooperating. There's a trial set for mid-September and they

24 were going to send us an accurate (inaudible) as a witness

25 on that trial for a remaining co-defendant.



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1 MS. HAWKINS: That's correct, Your Honor. The

2 defendant has been extensively cooperating with the U.S.

3 Attorney's Office as well as the Investigative Agencies and

4 ATF down in South Florida. In fact, I have a copy of his

5 plea agreement that he received down there, and given his

6 extensive cooperation and some problems that they've had

7 with the case itself, they allowed him to plead to a

8 five-year count, 371 conspiracy violation.

9 According to my calculations, his guidelines level

10 on that would be a 21, which is fairly low and plus, he was

11 looking at a (inaudible) motion. So, his exposure down

12 there is quite limited, at least up until the point that

13 these -- there's a code that probably put that on, later on.

14 THE COURT: All right. The other preliminary

15 question I had is what the status of his conviction is. I

16 understand he's entered a plea, but he's not been sentenced.

17 MS. HAWKINS: That's correct.

18 THE COURT: Is that a conviction?

19 MR. RAVENEL: Been found guilty, the only case I

20 find that -- he's been found guilty once. He's admitted in

21 a number of times in recorded conversations that he is a

22 convicted felon.

23 THE COURT: Well, you saying it doesn't make it

24 true.

25 MR. RAVENEL: Right. The only other thing that I



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1 can tell you is that there is Eight Circuit Case. I have a

2 copy of that case if the court wants to look at it. And it

3 found that -- it's the only case I could find reported the

4 decision that found that somebody's been found guilty but

5 not sentenced as a convicted felon. He's also under

6 indictment under those two counts.

7 THE COURT: Well, I understand there's two counts

8 but the -- looking at the first one.

9 MS. HAWKINS: My understanding, Your Honor, is

10 until the court adjudicates him guilty, and that usually

11 occurs in accepting the plea agreement and those other

12 proceedings at the time of sentencing, that's when you will

13 be convicted.

14 MR. RAVENEL: I did have conversations with the

15 ASA, they're at -- part of that hearing. They did believe

16 he was adjudicated guilty and I asked him that several

17 times.

18 So, they were part of the plea hearing and said he was

19 a convicted felon. He was adjudicated. That was what they

20 understood from that hearing. And the minutes of the

21 hearing, I have a copy of the Court's docket indicate that

22 the court found him guilty that day.

23 So, I also believe that case supports the idea that he

24 is a convicted felon based on the change of plea hearing.

25 THE COURT: That -- we'll -- I'll hear arguments



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1 when we get to that point from both sides. All right.

2 Ready to proceed?

3 MR. RAVENEL: Yes, sir.

4 THE COURT: Go ahead, Mr. Ravenel.

5 MR. RAVENEL: Calling Special Agent McCann.

6 THE DEPUTY CLERK: Please raise your right hand.

7 Do you solemnly swear that the testimony you're about to

8 give before this court will be the truth, the whole truth,

9 and nothing but the truth, so help you God?

10 MR. MCCANN: I do.

11 DIRECT EXAMINATION

12 BY MR. RAVENEL:

13 Q Please tell the court what your name is.

14 A Kevin McCann.

15 Q Where do you work?

16 A At the Bureau of Alcohol, Tobacco, Firearms and

17 Explosives in Orlando.

18 Q Tell us what your title is and what your duties are.

19 A Special Agent. And my duties are to enforce the

20 federal firearms, alcohol, arson, tobacco, and explosive

21 Laws.

22 Q Briefly describe your background.

23 A I've been an agent with ATF for 18 years

24 (inaudible)Baltimore, Chicago and now, Orlando.

25 Q What did you do in Chicago?



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1 A I was a group supervisor of the Intelligence Unit and

2 then I was the group supervisor of the Firearms Trafficking

3 Unit.

4 Q You also have a law degree?

5 A Yes, I do.

6 Q Through your investigation, do you know Efraim

7 Diveroli?

8 A Yes.

9 Q Do you see him in court today?

10 A Yes.

11 Q Please point him out and describe what he's wearing.

12 A He's at the defense table in the middle wearing a blue

13 shirt.

14 MR. RAVENEL: The record should reflect the

15 witness identified the defendant.

16 THE COURT: It does.

17 BY MR. RAVENEL:

18 Q Is that the same person who's listed in the criminal

19 complaint in case number 6:10MJ1269?

20 A Yes.

21 Q Have you reviewed all the facts and statements in the

22 criminal complaint as well as the affidavit in support of

23 that complaint?

24 A Yes.

25 Q Do you adopt and incorporate those statements for the



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1 purpose of your testimony today?

2 A Yes.

3 Q Tell the Court how this investigation against Mr.

4 Diveroli in the Middle District of Florida began.

5 A The investigation began in July after Mr. Diveroli

6 contacted a federal firearms licensee in the Orlando area

7 requesting that the federal firearms licensee engage in some

8 sort of business relationship with him. And he mentioned to

9 the federal firearms licensee that he was interested in

10 transferring machine guns, importing 100 round magazines for

11 AR-15s, selling ammunition, and some other type of

12 activities.

13 Q Did he say how many machine guns he was interested in

14 dealing with?

15 A He also asked if the federal firearms licensee could

16 manufacture approximately 1,000 M4 type rifles a month. But

17 he did indicate that he was interested in semi-automatic M4

18 type rifles. The machine guns were something separate. He

19 was interested in locating anyone -- someone with a

20 collection of machine guns and putting up the money and

21 locating buyers. And then he'd use a Class III firearms

22 licensee who's authorized to deal in machine guns to do the

23 paperwork.

24 Q In what month and year did these events take place?

25 A In July of 2010.



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1 Q At that time, was Mr. Diveroli -- he already pled

2 guilty in the Southern District to a felony offense?

3 A Yes.

4 Q Did he also have an additional 83 felony counts pending

5 against him in the Southern District of Florida?

6 Q Yes.

7 A Was he allowed to possess firearms or ammunition at

8 that time?

9 A No.

10 Q What was the status of his federal firearms License at

11 that time?

12 A It had expired on October 1st of 2009.

13 Q Have you reviewed his bond conditions from the Southern

14 District of Florida?

15 A Yes.

16 Q Is he allowed to travel outside the Southern District

17 of Florida?

18 A No.

19 Q Is he allowed to use drugs?

20 A No.

21 Q Is he allowed to posses firearms?

22 A No.

23 Q Was he ever arrested while he was on supervision with

24 the Southern District?

25 A Yes.



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1 Q For what?

2 A Driving under the influence.

3 Q And has Mr. Diveroli ever admitted in recorded

4 conversations that he was a convicted felon?

5 A Yes.

6 Q Has he ever traveled outside of the Southern District

7 of Florida?

8 A I'm aware of two instances.

9 Q In this -- the first instance was on August 12th of

10 2010?

11 A Yes.

12 Q And is that detailed in your affidavit, the ammunition

13 transaction?

14 A Yes.

15 Q The second instance was on August 20th 2010?

16 A Yes.

17 Q And that's what led to his arrest on Friday?

18 A Yes.

19 Q During the course of your investigation, did Mr.

20 Diveroli ever make any statements about ammunition or

21 firearms?

22 A Yes.

23 Q Describe some of those statements to the Court.

24 A On numerous occasions, Mr. Diveroli mentioned that he

25 owns a company called AmmoWorks, and through AmmoWorks, he



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1 sells large quantities of ammunition.

2 He stated that he has millions of rounds located in

3 the United States in storage for resale purposes. And he

4 offered to an ATF undercover agent on several occasions the

5 sale of ammunition.

6 Mr. Diveroli also mentioned that he was at a shooting

7 range on August 11th of 2010, shooting firearms, but it was

8 hot that day.

9 Q Was he allowed to shoot firearms that day?

10 A No.

11 Q Was he allowed to possess them?

12 A No.

13 Q Did he ever say -- make any statements about being a

14 gunrunner?

15 A Yes, he has. He -- on one of the recorded

16 conversations, he referred to himself as a gunrunner,

17 stating, "Once a gunrunner; always a gunrunner."

18 Q Did he also mention hunting in the Everglades?

19 A Yes, he did.

20 Q What did he say he hunted?

21 A Alligator, white-tailed deer and hogs.

22 Q Did he say how he hunted the animals?

23 A He did say he used a .50 calib Black Powder Rifle.

24 Q Okay, that's not actually a firearm, right?

25 A That's not defined as a firearm.



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1 Q Yes. I want talk to you about your arrest on August

2 20th, 2010, last Friday. After he was arrested, was he

3 advised of his constitutional rights?

4 A Yes.

5 Q Did he indicate he understood his rights?

6 A Yes.

7 Q And did you have a conversation with him after that?

8 A Yes.

9 Q Who initiated that conversation?

10 A Mr. Diveroli.

11 Q Did he make any statements with respect to the Glock

12 handgun that's mentioned in the affidavit?

13 A Yes, he said -- he did state that he did possess that,

14 that day.

15 Q Did he make any statements with respect to the

16 ammunition?

17 A Yes.

18 Q And what did he say about the ammunition?

19 A He said that he accompanied the employees of advanced

20 munitions to the Wal-Mart store to purchase ammunition and

21 that he provided the financing to purchase that ammunition,

22 he was present during the transaction.

23 Q How much money did he pay for the ammunition at the

24 Wal-Mart?

25 A $1,066.58.



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1 Q Describe for the Court -- well, let me ask you this,

2 what was the purpose of the ammunition purchase? I'm not

3 talking about what he said, but based on your review of the

4 undercover operation?

5 A That he intended to purchase the ammunition, so he can

6 shoot the firearms that were in the possession of the ATF

7 undercover agent.

8 Q Describe for the Court the circumstances of his arrest,

9 where he was physically arrested, and what he was doing when

10 he was arrested.

11 A After the purchase of ammunition at the Wal-Mart store,

12 Mr. Diveroli traveled back to the meet location, and he was

13 the passenger in an Audi vehicle driven by Dejan Djuric and

14 they did not meet up again with the ATF undercover agent.

15 At that point, they drove to a quiet area of the parking lot

16 adjacent to a building.

17 Q And what were they doing when ATF approached them?

18 A At that time, the ATF initiated the arrest of Mr.

19 Diveroli, and when they approached the vehicle, Mr. Diveroli

20 was in the passenger seat of the vehicle. And it appeared

21 that he had either attempted to smoke something out of a

22 bowl or a -- where there was one in his possession.

23 Q What do you mean by a bowl?

24 A It was a -- it looked like a smoking pipe, where -- for

25 narcotics.



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1 Q Have you been able to determine what sort of substance

2 was in that smoking pipe?

3 A No, it's an unknown substance.

4 Q You were in court on Friday, August 20th, and was with

5 Mr. Diveroli; is that true?

6 A Yes.

7 Q And did -- was he sworn to tell the truth at that

8 hearing?

9 A Yes.

10 Q Did he testify before Judge Kelly?

11 A He provided information responding to Judge Kelly's

12 questioning.

13 Q And he did that against the advice of counsel?

14 A Yes.

15 Q He had assisted help -- a federal public defender with

16 him at that time?

17 A Yes.

18 Q What did he tell Judge Kelly about his use of

19 narcotics?

20 A He stated that he hasn’t used narcotics in several

21 months.

22 Q I want to talk to you about a person named Jake who was

23 with Mr. Diveroli on August 20th. Was Jake interviewed?

24 A Yes.

25 Q Did he provide any statements about what Mr. Diveroli



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1 did that day with respect to the handgun and with respect to

2 the firearms?

3 A Yes.

4 Q What did Jake tell interviewing officers?

5 A Jake advised that he personally observed Mr. Diveroli

6 reach into the UC vehicle and handle a .308 rifle, and work

7 the bolt on that rifle several times.

8 Q What did he advise the interviewing officers about Mr.

9 Diveroli with respect to whether or not he had shot firearms

10 in his presence?

11 A He stated that on August 11, 2010, he, Mr. Diveroli,

12 and another individual, Aaron, went to the firearms range

13 called Markham Park shooting range and fired an AR-15 rifle

14 that day, testing out the 100 round magazine drums that Mr.

15 Diveroli intended to import.

16 Q Did Mr. Diveroli actually shoot the firearms according

17 to Jake?

18 A Yes.

19 Q What did Jake say about Mr. Diveroli's -- the new

20 companies that were performing these different transactions?

21 A Jake stated that Mr. Diveroli ran the business of the

22 ammo sales and the magazine dealings, and that they were in

23 the process of starting up other businesses including

24 advanced Munitions in an attempt to conceal Mr. Diveroli's

25 involvement with those companies and with that activity.



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1 And in those companies, Mr. Diveroli's name was not to be on

2 any documents.

3 Q Did all these events that you've testified to occur in

4 the Middle District of Florida, except for the gun range

5 events?

6 A Yes.

7 Q Is it fair to say that you've only testified for the

8 purpose of establishing probable cause and you have you

9 haven’t testified to your entire knowledge of this case?

10 A Yes.

11 MR. RAVENEL: Your Honor, I tender the witness.

12 THE COURT: Cross-exam.

13 CROSS-EXAMINATION

14 BY MS. HAWKINS:

15 Q Good morning, Agent.

16 A Good morning.

17 Q As part of your investigation, have you looked to see

18 whether or not AMD is an actual company?

19 A Yes.

20 Q It is, isn’t it?

21 A Yes, just recently, they were established.

22 Q It's -- AMD is a recently established corporation?

23 A Yes.

24 Q And are you aware of whether or not Dejan Djuric is an

25 officer in that company?



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1 A Yes.

2 Q And did you know that AmmoWorks, which was the

3 defendant's company, was in the process of selling their

4 inventory to AMD?

5 A Those were statements that Mr. Diveroli had made.

6 Q And do you know whether or not Mr. Diveroli, the

7 defendant, consulted with attorneys to make sure that that

8 would be legal for him to do that?

9 A According to Mr. Diveroli, he had.

10 Q Okay. And did you know that Mr. Cerenko, who's here

11 present, one of the corporate attorneys, is one of the

12 attorneys that was consulted in that matter?

13 A Yes.

14 Q And you said that when the defendant was arrested, he

15 had some kind of a bowl, a smoking bowl?

16 A Yes.

17 Q But to your knowledge, there was no narcotics in that,

18 was there?

19 A Not in the bowl. There were -- there was an unknown

20 substance recovered, but we don’t know what it is.

21 Q Right. So, to your knowledge, there was no narcotics

22 taken that day?

23 A There was something taken that day that was not tested

24 yet, but I can't say it was narcotics.

25 Q Right. So, you can't -- you can't sit here and testify



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1 that there were any narcotics seized from the defendant on

2 the day of his arrest, can you?

3 A That’s correct.

4 Q In fact, did you know that part of his bond conditions

5 in the Southern District are that, for the last year, he be

6 tested twice a week for drugs?

7 A That is my understanding.

8 Q And that he has tested clean every single time except

9 for the violation that’s in his paperwork that was last

10 October, 10 months ago?

11 A I did not know that.

12 Q You did not, and as part of your investigation, look

13 into the fact that he has had a clean urinalysis twice a

14 week since last October?

15 A No.

16 Q Including this past week? You don’t know that?

17 A If he had a clean urinalysis this week?

18 Q Right.

19 A No, I don’t know that.

20 Q Okay. So, then when you testified that the defendant

21 told Judge Kelly that he hadn’t used narcotics since several

22 months, apparently, that was true, wasn’t it?

23 A He's -- yeah. That is true that he testified to that.

24 Q Is -- but it’s apparently true that he was telling the

25 truth to Judge Kelly because his urinalysis have all been



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1 clean, right?

2 A I had -- I had no knowledge of his drug use. So, if

3 you say it's clean then I guess that -- I don’t know, I

4 don’t know.

5 Q And you didn’t -- and you didn’t ask the people down in

6 South Florida, right?

7 A No.

8 Q All right. Now, how long had Jake, this person that

9 you interviewed, do you know how long he'd been working at

10 AMD?

11 A AMD was just established at the end of July of 2010, so

12 it could only have been a couple of weeks since that time.

13 Q So, the basis of his knowledge was for about a couple

14 of weeks, you say?

15 A Prior to that, he worked for AmmoWorks for Mr.

16 Diveroli, but I do not know for how long he had worked for

17 Mr. Diveroli.

18 Q So, you really can't say how long his -- the basis of

19 his knowledge over the -- that he had in order to give his

20 opinion was? You don’t know that basis?

21 A I don’t know how long he's -- he worked for Mr.

22 Diveroli, no.

23 Q Now, do you know whether or not Mr. Diveroli was told

24 that he could or could not shoot at a range, that that would

25 violate his bond? Do you know if somebody told him that?



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1 A I was -- I know Mr. Diveroli was told several times by

2 his attorneys that he cannot possess firearms or ammunition.

3 Q Okay. And my -- answer my question. My question is,

4 do you know whether or not he was told that going to the

5 range and shooting would constitute possession?

6 A I have no knowledge of that.

7 Q Now, you said that Jake also said that he saw my client

8 on the -- I believe it was the 20th, you said, work the bolt

9 on the rifle?

10 A Yes.

11 Q Wouldn’t that be what any person who would do to ensure

12 that it was cleared and that there was no ammo in it?

13 A That is one of the reasons to work a bolt, yes.

14 Q But other than that, that was all he did with that

15 weapon that day?

16 A He lifted it up, handled it, and worked the bolt

17 several times; inspecting it, examining it.

18 Q He looked at it -- he looked at the weapon, he cleared

19 it, and then he put it back down?

20 A Yes.

21 Q Okay. So when the defendant says, according to you,

22 after his -- waiver of his rights that he did possess the

23 weapon that day, was he referring to the fact that he picked

24 it up and cleared it? Wouldn't that be a reasonable

25 interpretation according to your investigative experience?



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1 A He didn’t clear it because there was no ammunition in

2 it. He picked up the weapon and worked...

3 Q Excuse me, but how do you know that, what his intention

4 was?

5 A You asked me if you -- if he stated that he cleared it.

6 Is it my impression that he cleared the weapon? And it

7 wasn’t my impression that he cleared the weapon --

8 Q Well, he --

9 A --because the weapons were not -- already cleared.

10 Q But he ensured that by check -- pushing back the bolt?

11 Isn't that one way you can ensure that a weapon is clear?

12 A That’s one way to ensure the weapon is clear.

13 Q Now, a magazine. Can you tell us the difference

14 between a magazine and ammunition?

15 A A magazine is a storage device for ammunition.

16 Ammunition is loaded into a magazine. And then the magazine

17 is loaded into a firearm and that feeds -- the magazine

18 feeds the ammunition into the firearm.

19 Q So a magazine is not a firearm?


21 Q Then a magazine is not ammunition?


23 Q So if the defendant has a magazine, would that be a

24 violation?

25 A No.



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1 Q And if the defendant was attempting to re-brand

2 magazines and sell those, would that be a violation?

3 A Very possibly.

4 Q But selling the magazines, would that be a violation?

5 A It could be. Magazines are on the U.S. Munitions

6 Lists, so they are subjected to ITAR regulations.

7 Q Okay, within the United States then. Let me rephrase.

8 A Okay.

9 Q Okay. Within the United States, if the defendant was

10 re-branding or selling magazines, that wouldn't necessarily

11 be a violation, would it?

12 A No.

13 Q Did you know that the defendant has been attending his

14 AA meetings as ordered by the Court?

15 A I did not know if he was attending them.

16 Q Where in Brevard County was the defendant on the 20th?

17 A In Titusville.

18 Q And what is the county just south of Brevard?

19 A Indian River County.

20 Q And what -- is that in the Southern District of

21 Florida?

22 A It's my understanding that the Indian River County is

23 in the Southern District of Florida, yes.

24 MS. HAWKINS: I have no further questions, Your

25 Honor.



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1 THE COURT: Any redirect?

2 REDIRECT EXAMINATION

3 BY MR. RAVENEL:

4 Q Have you heard any statements from either Jake or

5 anybody else in this case, Jake or the defendant himself

6 about whether Mr. Cerenko has told Mr. Diveroli not to

7 possess firearms or ammunition?

8 A That conversation has come up several times, yes.

9 Q And what do you understand from that?

10 A That Mr. Diveroli received legal advice from an

11 attorney that he is not permitted, based on his felony

12 conviction, to possess ammunition or firearms.

13 Q And that’s actually the attorney that’s at the table

14 with him today?

15 A Yes.

16 MR. RAVENEL: I don’t have any further questions.

17 Thank you, Your Honor.

18 THE COURT: Step down, agent.

19 MR. RAVENEL: Your Honor, the only other thing I

20 would ask is that The Court hear from a Ms. Arwady. I

21 understand that there's several reported instances of drug

22 use by Mr. Diveroli that aren’t included in the Pretrial

23 Services packet. I just ask you to hear that information

24 from the Pretrial Services Officer, so you have a complete

25 understanding of this situational bond. (Inaudible).



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1 MS. ARWADY: Yes, Your Honor. I didn't have a

2 chance to talk to the officer out of the Southern District

3 of Florida who has been handling this case. Our

4 conversations have been brief, but she did indicate that

5 there were some violations, including positive drug test

6 results. I don’t have the specific dates for when that

7 occurred.

8 And however, I would be able to obtain that if the

9 Court needed that information.

10 MS. HAWKINS: Your Honor, can I ask a question?

11 THE COURT: Sure.

12 MS. HAWKINS: Do you know whether or not those

13 were before October?

14 MS. ARWADY: I don’t have that information.

15 MS. HAWKINS: Okay. Thank you.

16 THE COURT: Ms. Hawkins?

17 MS. HAWKINS: Yes, Your Honor. I'd actually like

18 to proceed by way of (inaudible) at this point, if I may?

19 THE COURT: Go ahead.

20 MS. HAWKINS: Thank you, Your Honor. Ordinarily,

21 I know the Court would look at a situation like this and not

22 grant a bond to the defendant, but there are certain reasons

23 why the Court can fashion a bond in this case.

24 The primary reason is because Mr. Diveroli's father

25 has traveled here today and he's present, Mr. Michael



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1 Diveroli. If I could ask to hear from him, then I have

2 other comments.

3 THE COURT: Go ahead.

4 MS. HAWKINS: Sir, would you step forward?

5 THE COURT: Do you want him to testify?

6 MS. HAWKINS: I just want him to address the Court

7 about a third-party custodianship. I don’t need him under

8 oath.

9 THE COURT: All right.

10 MS. HAWKINS: Would you state your name, please?

11 MR. DIVEROLI: Michael Diveroli.

12 MS. HAWKINS: Can you speak here?

13 MR. DIVEROLI: Michael Diveroli.

14 MS. HAWKINS: And is this your son, Efraim?

15 MR. DIVEROLI: Yes.

16 MS. HAWKINS: And where do you reside, sir?

17 MR. DIVEROLI: In Miami, Florida.

18 MS. HAWKINS: And you have -- how long have you

19 resided in Miami?

20 MR. DIVEROLI: Almost all my life.

21 MS. HAWKINS: Do you have a stable residence there?

22 MR. DIVEROLI: Yes, I do.

23 MS. HAWKINS: And you know your son's situation in

24 South Florida?




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1 MS. HAWKINS: And you know he's on bond?


3 MS. HAWKINS: And you know he has had a few curfew

4 violations?


6 MS. HAWKINS: And would you be willing, even

7 knowing that, to take him into your home, be his third party

8 custodian? And if he were to violate any condition that the

9 Court may set, either here or in the Southern District, to

10 call the probation officer and report it?


12 MS. HAWKINS: Report it to the Court?


14 MS. HAWKINS: And do you know that your son,

15 whether or not he's been cooperating with agents in the

16 Southern District?

17 MR. DIVEROLI: To the best of my knowledge, yes.

18 MS. HAWKINS: And is there any -- do you have any

19 hesitation in taking care of your son and in making sure he

20 lives with you, that he's there every night on his curfew

21 and that if he is not, you report? He has an ankle bracelet

22 on, right?


24 MS. HAWKINS: But you would also report?

25 MR. DIVEROLI: Immediately, yes.



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1 MS. HAWKINS: Thank you, sir.

2 Does the Court have any questions?

3 THE COURT: Mr. Ravenel, you may inquire.

4 MS. HAWKINS: I'll just (inaudible).

5 MR. RAVENEL: Yes, Sir. I'm the prosecutor. May I

6 ask you some questions?

7 MR. DIVEROLI: Yes, sir.

8 MR. RAVENEL: Sir, if you don't understand

9 something, let me know, okay?

10 MR. DIVEROLI: Please.

11 MR. RAVENEL: You're aware that your son has a

12 number of curfew violations?


14 MR. RAVENEL: Did you report any of those?

15 MR. DIVEROLI: I -- he doesn’t live with me, sir.

16 MR. RAVENEL: Okay. Were you aware before that the

17 curfew (inaudible)?

18 MR. DIVEROLI: Not before the fact, no, sir. Maybe

19 afterwards I heard about it, but I was not aware beforehand,

20 obviously.

21 MR. RAVENEL: And do you understand that after he

22 was charged with 84 felonies in the Federal Court of Miami,

23 he was also arrested for DUI?

24 MR. DIVEROLI: I understand that, yes, sir.

25 MR. RAVENEL: He has also had problems using drugs



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1 while on pretrial release.

2 MR. DIVEROLI: What do you mean pretrial release?

3 I don’t understand.

4 MR. RAVENEL: While he's awaiting his sentence

5 hearing, he's also had problems with drug use. Do you

6 understand that?

7 MR. DIVEROLI: Sir, he does not live with me. And

8 she's the -- the counsel said that it was October there was

9 a violation, but I have no personal knowledge.

10 MR. RAVENEL: Since August of last year, are you

11 aware that Mr. Diveroli has used drugs?

12 MR. DIVEROLI: I have no personal knowledge, sir.

13 MR. RAVENEL: How often do you spend time with him?

14 MR. DIVEROLI: Usually a couple of times a week, I

15 see him.

16 MR. RAVENEL: Is it fair to say that his behavior

17 is quite erratic; is that true?

18 MR. DIVEROLI: Yes, sir.

19 MR. RAVENEL: Okay. He's actually on a number of

20 medications?

21 MR. DIVEROLI: He is under medication. Yes, sir.

22 MR. RAVENEL: He is on anti-depressant medications?

23 MR. DIVEROLI: That’s my understanding.

24 MR. RAVENEL: He's got severe ADD as well?

25 MR. DIVEROLI: I don’t know exactly what the



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1 diagnosis is.

2 MR. RAVENEL: But you’ve been with him for a long

3 time. It's also fair to say that he's very erratic and he

4 has a problem concentrating; is that true?

5 MR. DIVEROLI: I would say erratic. I would say

6 impulsive. I don’t know the clinical diagnosis, sir.

7 MR. RAVENEL: Okay. I don’t have further

8 questions. Thank you.

9 MR. DIVEROLI: Thank you.

10 MS. HAWKINS: Your Honor, that’s actually the next

11 part I was going to bring up, is that this defendant and the

12 -- and the court system in the Southern District has worked

13 very carefully with the defendant to get him the medications

14 he needs. Actually, he's been incarcerated now for two days

15 without his medication. So you can see that he's a little

16 jumpy today, because he hasn't had -- he does take Adderall

17 and Klonopin, so.

18 MR. CERENKO: And Pristiq.

19 MS. HAWKINS: And Pristiq, thank you. And he

20 hasn't had those drugs that he is prescribed in a few days

21 and that I'm under -- I'm of the understanding that he's

22 supposed to able to get those today.

23 But needless to say, this is required that he be

24 supervised (inaudible) in the Southern District. He has

25 made all his counseling appointments, he goes three times.



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1 It was increased to about three times a week, he's complied

2 with that. He goes to AA meetings every week, at least

3 twice a week.

4 He has -- ever since his violation last October for

5 the drugs, he had to do rehabilitation and he's been very

6 compliant, he's that type. He also meets every week with

7 the agents or is in contact with them, with the prosecutors

8 to assist in his upcoming trial that's set to begin, I

9 believe, next month in the Miami area, in the Northern

10 District.

11 So, the situation is that he has -- they worked with

12 him. He's had some trouble because of his mental condition

13 but it's under control with these medications and he's been

14 extremely helpful to the point where they have given him a

15 five-year count. And I expect to give him a (inaudible)

16 motion beyond that.

17 So, it's -- his situation is a little complicated but

18 it is not exactly as it appeared at first blush. Your

19 Honor, all I can state is that the defendant has every

20 intention of fighting these charges because of their

21 manufactured quality. It looks that the defendant was in

22 Titusville, Brevard County and literally didn't know that he

23 was in the Indian River County.

24 As long as it was South of Orlando, he thought he was

25 in the Southern District, but was enticed up here, told the



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1 agents that he did not have any weapons with him, and they

2 said, "That's okay. We've got some." And they bring him

3 over to the car and show him -- and he actually just wanted

4 to clear it to make sure there wasn't a round in it. And

5 that's it, that's his possession and receiving weapons in

6 interstate commerce.

7 That's -- I'm just throwing this out here as it is

8 certain the case and to the credibility of the charge and

9 given in light of all his cooperation in the Southern

10 District. And he had consulted with attorneys in Washington

11 D.C. and also the corporate counsel here to transfer

12 anything he could, legally, to this other company to be run

13 by Dejan Djuric who was, in every way, you know, the

14 company's officer of the new company, AMD, was going to be

15 able to take that inventory and sell it any way what he did

16 with it.

17 And the defendant was trying to put him in touch with

18 people that he could work with but the defendant wasn’t

19 going to take them on part. The defendant was -- is not an

20 owner, is not an officer, or anything of this new company

21 and he thought he did everything he -- he went to the

22 lawyers, Judge. He wasn't trying to hide anything.

23 So he's in a situation, it's a difficult situation.

24 These charges may or may not go any further than this week.

25 We don’t have any way of knowing that but we -- it will be



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1 contested because the -- there are many things on the tape

2 recorder, there are many hours of tape recordings that

3 aren’t listed in this point that -- or the defendant saying,

4 "I can't do this. I'm not allowed to do this." They're

5 exculpatory in nature.

6 So given that unique situation we have here, Your

7 Honor, we would ask the court to let the defendant go home

8 with his father as third party custodian. He's a legitimate

9 member of the community. He's told the Court that he will

10 turn the defendant in if he does anything wrong.

11 I realize there's a violation petition about a curfew

12 in the Southern District. The defendant warns me that

13 there's some problem with the equipment occasionally but I

14 understand, of course, we can settle with that. But I do

15 believe he could have one more chance that he could go down

16 there and deal with the situation he has in the Southern

17 District as well.

18 THE COURT: Mr. Ravenel?

19 MR. RAVENEL: I do have the docket, Your Honor,

20 if you want to look at that a minute so (inaudible) if you

21 want to see it, I can show it to you and show the defense

22 counsel.

23 THE COURT: Show Ms. Hawkins first. I'll take a

24 look at it.

25 MR. RAVENEL: This is not all within this. This



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1 is the (inaudible).

2 MS. HAWKINS: (Inaudible).

3 MR. RAVENEL: Yeah, I see that, and that's why

4 (inaudible). Okay. I don’t mean to rush you if you

5 (inaudible).

6 MS. HAWKINS: Okay.

7 MR. RAVENEL: And for the record, I'm showing the

8 court document 323 from the Southern District case.


10 MR. RAVENEL: Your Honor, I would say there's a

11 number of factors and they're in favor of holding this

12 defendant without bond. Before I'd say that, I ask the

13 Court to find there is probable cause based on the agent

14 adopting his affidavit and based on the testimony for today.

15 With respect to the nature and circumstances of the

16 offense, the bail reform statute specifically mentions where

17 there is firearms used, and there were in this case,

18 firearms and ammunition.

19 The fact of this case is it was the defendant's idea

20 to look at the firearms. It was the defendant's idea to

21 shoot the firearms. He was the one who suggested to buy

22 ammunition. They bought over $1,000 worth of ammunition.

23 And one person described -- this is laid out in the

24 affidavit as 150 pounds of ammunition to shoot that day.

25 So, now it's -- it was his idea.



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1 He was on some sort -- he was smoking some sort of

2 item that he was smoking -- a marijuana pipe when he was

3 caught. You also know from the Pretrial Services report

4 with respect to his personal characteristics, that he's a

5 habitual drug user, marijuana, cocaine since 16. I believe

6 the cocaine was at least on a weekly basis, maybe on a daily

7 basis. He also uses alcohol frequently.

8 While he was -- after he'd been charged in the

9 Southern District, he was arrested for DUI. That was just

10 18 days before he pled guilty to a felony there.

11 So you have drug use, you have -- you combine that

12 with firearms violations. You know that he was on bond and

13 they had looked past his conduct a number of times. You

14 know that they had modified his supervision a number of

15 times to try to assist him and none of it worked. And the

16 fact the he was cooperating with the U.S. Attorney's office

17 in Miami, I think that has completely changed.

18 What happened on Friday is a game changer for him in

19 the Southern District. This certainly violates his

20 conditions of bond and I imagine it'll take some sort of

21 action against him as a result. It probably also changes

22 whether or not he's useful as a witness at this point for

23 them.

24 The weight of the evidence, I suggest, is strong.

25 It's all verified through recordings. There are a great --



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1 a great deal of it.

2 You have -- it's a law enforcement investigation.

3 It's not going to rely on lay witnesses. Primarily, you've

4 got seasoned law enforcement officers that had recorded

5 conversations with him.

6 You’ve also got an admission by him with respect to at

7 least a Glock handgun and the ammunition transaction. You

8 have a companion of his that's testified or that's made

9 statements consistent with what the law enforcement officers

10 have said, that was Jake.

11 His personal characteristics so far as whether or not

12 he should be on bond are atrocious; habitual drug user.

13 He's got severe depression, which certainly we don’t

14 condemn; it's not something you can control, but it affects

15 his behavior. His own father has described him as erratic

16 and impulsive today. And he's seeking out to engage in

17 illegal conduct.

18 The way the investigation started is he reached out to

19 purchase 1,000 machine guns. He had no FFL at that time.

20 He's not allowed to sell firearms. Certainly, the Court

21 understands that somebody wouldn’t purchase 1,000 machine

22 guns for their personal use. So, there is a concern that he

23 intended to deal firearms without a license or at least

24 through another company -- a front company.

25 One of his companions just described the companies



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1 that have opened up as front companies, allowing him to

2 operate under other people's names.

3 His past conduct was equally bad. Engaged in a fraud

4 that concerned a $300 -- nearly $300 million contract with

5 the government, supplying the government with ammunition

6 that was, my understanding, substandard to be sent to

7 Afghanistan and Iraq.

8 Four curfew violations while he was on bond. They

9 worked with him every bit they could.

10 Firearms and ammunition, he wants to shoot them.

11 There's a friend who's provided information that he has shot

12 firearms while on supervised release to test out, I guess,

13 100 round drums of ammunition. And he shot that in the

14 Southern District within the last two weeks.

15 He knew all along that this was wrong. He's admitted

16 on tape several times, he's a convicted felon, he can't do

17 this. His friend said that he knew it as well, that came

18 from the attorney that's at the table today.

19 And I understand the family, they want him out. But,

20 you know, the best thing for this person right now, today is

21 to keep him in. And the reason is he can't control himself.

22 If you put him out, he's going to get himself in a bigger

23 jam than he is now. So if you want to do something to help

24 him, to help his family, I suggest that the thing to do is

25 to keep him in custody.



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1 And the reality is a warrant is going to be issued in

2 the Southern District of Florida. I don’t see any way that

3 the magistrate judge out there is -- down there is going to

4 let him out on bond with these violations, with this

5 affidavit, with the information that they now have. So for

6 those reasons, I'd ask the Court to find probable cause and

7 also to find that he should be detained; he's a danger to

8 himself, he's a danger to other people. And I ask you to

9 make those findings today.

10 MS. HAWKINS: If I many respond to that, Your

11 Honor. I would ask the Court to find if there's enough

12 probable cause for the purposes of the preliminary

13 examination. I would argue that the minutes of the court

14 proceedings is not sufficient to approve the conviction of

15 the defendant. Also, as to the -- it just says that -- it

16 says guilty but there's nothing certified, there's nothing

17 to show that that, in fact, is sufficient for purposes of

18 this charge.

19 Secondly, as to the bond situation in the Southern

20 District, there are a few violations of the curfew. Most of

21 them -- a couple might -- I looked at briefly were 15

22 minutes. Judge, this defendant, it's not like he's out

23 there trying to do -- there's a 10 o'clock curfew and he

24 gets stuck in traffic or something. I mean, that's not

25 right, but it also doesn’t show that he's out there



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1 flaunting the Court's restrictions.

2 And he understands that that -- he has -- he needs to

3 be home at 9:30, like we've explained it to him and not even

4 be in a situation where he could be late, but it's -- those

5 aren't as egregious as it's being portrayed.

6 I also -- this talk -- I have to say something about

7 this talk of machine guns. This defendant actually had a

8 legitimate contract with the United States government,

9 dealing with South Korea. He had an actual contract for

10 those machine guns.

11 I mean, this is not something he was doing illegal.

12 This was before all this trouble in the Southern District.

13 But I will say, what he was trying to do here, in this case,

14 was trying to follow the law and talking with attorneys and

15 trying to do a legitimate business transaction, keep his

16 nose clean.

17 He really is trying to do it right. Obviously, the

18 government thinks he did it wrong and we'll have to work

19 that out down the road, but he is trying to comply, no

20 matter where he came, Your Honor. And I think with the

21 additional guarantees of his father that he can be released

22 on bond, and that he will go down there and deal with the

23 situation in Southern District as it stands, and defend

24 himself vigorously on these charges should they be wrong.

25 Thank you.



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1 MR. RAVENEL: Could I respond, put something in

2 the record, Your Honor?


4 MR. RAVENEL: The one thing I'm putting on the

5 record, as I've cited the Court to United States, for

6 example, 136 F3d 562, it's an Eighth Circuit case. I

7 believe it stands for the proposition that he is a convicted

8 felon based on the change of plea hearing. The evidence of

9 the conviction is contained in the affidavit, special agent

10 adopted that today.

11 He is a convicted felon. He also is under indictment

12 based on the testimony that's contained in the affidavit and

13 I would just like to put that on the record.

14 THE COURT: All right. On the matter of the

15 preliminary hearing, the government has offered evidence

16 mostly by way of the affidavit that was reaffirmed in

17 testimony which does establishes probable cause that a crime

18 was committed and the defendant committed it with respect to

19 the 922 -- charge on the 922(g)(1) charge.

20 The case from the Eighth Circuit certainly has -- seem

21 to have a direct holding consistent with the government's

22 argument that the acceptance of a guilty plea is sufficient

23 to make the defendant potentially liable under subsection

24 (g)(1).

25 I don’t know if there's other case law or not. I



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1 haven’t seen any myself. So for purposes of that charge as

2 well, I accept the Eighth Circuit guidance subject to

3 someone bringing some other law to my attention.

4 So the defendant will be held to answer for further

5 proceedings on the charges in the complaint.

6 On the question of pre-trial release and detention,

7 that's governed by the Bail Reform Act which directs the

8 Court to look at the nature and seriousness of the charges,

9 the weight of the evidence, and the personal and individual

10 characteristics of each defendant in determining whether

11 conditions can be set, will provide reasonable assurance for

12 the presence of the defendant, and the safety of the

13 community if the defendant is released.

14 This case is peculiar because of the defendant's

15 status in the Southern District where he's on conditions of

16 release pending sentencing on criminal charges down there,

17 and indications that -- well, there's a pending petition and

18 likely to be another petition that may be signed even as we

19 speak.

20 The -- it does seem to me, I don't know what the U.S.

21 Attorney's Office in the Southern District is doing with

22 respect to the prosecution of others, but I would surmise

23 that the defendant's usefulness as a witness is, if not

24 completely spoiled, severely curtailed. I have some doubts

25 about his usefulness as a witness under the circumstances



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1 anyway, given his mental health issues and his own history,

2 but that's not for me to say.

3 The affidavit indicates the defendant well knew the

4 limits of the Southern District, which I dare say most

5 people who live in Florida would not know, but he seemed to

6 be very well aware of it. And his activities as detailed,

7 obviously just in a partial basis in the affidavit do tend

8 to show an uncontrolled and perhaps uncontrollable

9 impulsivity not consistent with the obligations of someone

10 who's -- who is in his position of awaiting sentencing and

11 in under conditions of release, having plead guilty to a

12 serious felony.

13 So, given his indications of not being able to comply

14 with conditions of release, he certainly presents a serious

15 risk of continuing to engage in activity that is

16 inappropriate in other violations of release. Question is

17 whether -- really comes down to whether home confinement

18 could provide reasonable assurance.

19 I'm persuaded based on the difficulties that he had

20 complying with the Southern District requirements and the

21 nature of these charges and the way he went about whatever

22 he was doing, and the Government obviously had different

23 views of that, but he -- he's conducted his activities in a

24 way to call into question his stability.

25 Based on that, I find that he is a risk of flight and



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1 that even putting him on home confinement with further

2 restraints would not provide reasonable assurance of his

3 presence for further proceedings on the charges here in this

4 District.

5 I've -- and the only danger he presents is he really

6 can't control his activities very well. So I'm not going to

7 make any finding on that, even though the involvement of

8 firearms by somebody with his mental health history and

9 criminal histories is alarming. But I will make the finding

10 based on risk of flight and order that he be detained and

11 held in custody pending further proceedings in this court.

12 I would ask the marshal to make sure that he gets

13 appropriate medication.

14 We're on recess.

15

16 C E R T I F I C A T E

17 I certify that the foregoing is a correct transcript

18 from the record of proceedings in the above-entitled matter.

19

20 s\Sandra K. Tremel September 27, 2009

21

22

23

24


Documents

Efraim Diveroli: 9-27-1o Transcript of Detention Hearing - Gun Possession Case