UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA

CASE NO: 8:05-Cr-475-T-27TGW

vs.

THOMAS SPELLISSY

and

STRATEGIC DEFENSE INTERNATIONAL, INC.

______________________________________________/

DEFENDANT’S BRIEF IN SUPPORT OF MOTION TO SUPPRESS

UPON REFLECTION, the issue of the 70 mm warhead is, in fact, a red herring. When the affiant was shown the letter supposedly written by the P.E.O., Colonel Spellissy, it turns out to have been written and signed by his superior, Dr. Dale Uhler. How “instrumental” was he? He signed a document which acknowledged seeing the list and having no objections. Thereafter, his involvement ends. The list itself doesn’t specify a NAMMO round, but simply describes the warhead by size and generally as a “bunker buster”. The office of the Secretary of Defense hasn’t approved this nor has Congress. No vendor is named. The specifications have yet to be agreed upon, testing hasn’t been done, and neither have the market surveys. It hasn’t been put out for bid. All of this will was to done after Colonel Spellissy’s departure date. To suggest that Colonel Spellissy’s acknowledgment of seeing Dr. Uhler’s document would give him a conflict under 18 U.S.C. 207 turns common sense on its head. First, NAMMO isn’t mentioned in the request because to do so at that point would be premature at best.

No business was given to NAMMO or anyone else. Indeed, no contract has been signed by any vendor as of this date.

When the phrase “from the Nordic Ammunition Company” phrase is excised, as in fact it should, and when the phrase “Colonel Spellissy was instrumental in having USSOCOM submit a request is excised,” as indeed it should be, there is absolutely no cause much less probable issue to secure a warrant. Where the Defendant shows that there are misrepresentations in a search warrant affidavit then the court must decide whether, not including the false information (and including any omitted favorable information), there was still probable cause to search the location. United States v. Cross, 928 F.2d 1030 (11th Cir. 1991); United States v. Weber, 808 F.2d 1422 (11th Cir.1987); United States v. Kirk, 781 F.2d 1498 (11th Cir. 1986). An affidavit with the misrepresentations deleted, and the favorable information included is attached. It is clear that probable cause does not exist absent the misrepresentation and cherry picking of the data which was supplied to the Magistrate. See Exhibit A.

However, true as that may be, the real thrust of this affidavit is that Colonel Spellissy is alleged to have secretly been working for NAMMO, a foreign entity, while on active duty. It was also true that Colonel Spellissy had permission to work for SDI and an ethics opinion that allowed him to work for NAMMO. These facts were known to the affiant. It is beyond doubt that his superior and successor, Captain Huss, knew that Colonel Spellissy was going to consult with NAMMO on the trip the government hired him to take. Why didn’t Captain Huss warn Colonel Spellissy about the supposed conflict? The answer is that there were no “red flags” raised, and because there was no two (2) year blanket ban as the affidavit states and no 70 mm NAMMO contract as the affidavit implies. Any question of conflict is complicated by the fact that there are, more than one 70 mm product. In fact, NAMMO itself has more than one 70 mm product. The affidavit suggests until paragraph 12, that there is only one 70 mm product but even the affidavit quotes an e-mail concerning “all 70 mm programs for NAMMO, Inc.” The affiant, when asked how many 70 mm products there were, stated that he didn’t know.

The affidavit fails to connect the 70 mm bunker buster that Dr. Uhler ranked in his letter with any real action by Colonel Spellissy and also fails to mention or explain that the vendor will be chosen only after Foreign Comparative Testing. That is what the FCT program was. This will happen long after Spellissy is gone.

In retrospect, it appears clear that notwithstanding a nod toward a 70 mm project as an alleged conflict, the real gist of their affidavits’ complaint is elsewhere. It complains that Colonel Spellissy, while PEO, was secretly in the employ of a foreign corporation. That is why the affidavit is so disingenuous. The affiant had in his hands documents which cleared Colonel Spellissy to work for NAMMO and listed two (2) projects on which he was restricted and neither one was a 70 mm project.

There is a point where an affidavit is more than disingenuous, it becomes deceptive. That point is reached and passed with an exclamation point when the affiant brings his affidavit to a climax with “This e-mail appears to indicate that Colonel Spellissy was employed by NAMMO prior to his retirement date of December 31, 2004.” At the time that he says that, he has in his hands, the documents which show Colonel Spellissy was acting properly. That is egregious.

Behavior such as that is the reason that the courts fashioned an exclusionary rule. The court’s integrity cannot long survive such tactics. Exclusion of the fruits of this search is all that is left to this judicial system.

WHEREFORE, the Defendant moves this Honorable Court to enter an order granting Defendant’s Motion to Suppress.

Dated: April 24, 2006 _/s/Patrick D. Doherty______

Patrick D. Doherty, Esquire

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of the foregoing has been furnished by Electronic Filing to Sheryl L. Loesch, Clerk of the Court, U.S. District Court, Middle District of Florida, located at U.S. Courthouse, 801 N. Florida Ave., #223, Tampa, FL 33602-3800, and that e-mail notification of this filing will be sent to all interested persons on this 24th day of April, 2006.

_/s/Patrick D. Doherty__________

PATRICK D. DOHERTY, ESQ.

Brown & Doherty, P.A.

450 Carillon Parkway, Suite 120

St. Petersburg, FL 33716

(727) 299-0099, Fax (727) 299-0044

FBN 155447

pat@brownanddoherty.com