Malfunction = Machinegun = Arrest & Conviction

Discussion in 'Gun-Control Issues' started by MTPD, Jan 13, 2008.


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  1. Sam Spade

    Lifetime Member

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    Actually, I'm pretty neutral on that--hearing from you.

    We all have our biases--for me, when I don't have first-hand information, I tend to trust what goes into all the different levels of review leading to a conviction by jury. Just sayin', in the interest of open communication.

    So, if I understand things rightly, your appeal will center on questions of law, and not on facts already presented. If that's the case, would you answer a few questions?

    I'm dying to know how your Oly ended up with a selector that rotates 180*, to the third position.
     

    Wanna kill these ads? We can help!
  2. 1811guy

    1811guy Formerly1811guy2

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    From the article:

    At the same time Mr. Olofson was being charged with "Unlawful Transfer" because the rifle malfunctioned and had a M-16 trigger, disconnector, and hammer; calling it an AR-15 with M-16 trigger parts (not the parts that make a machinegun). The ATF removed "a machinegun" from the NFRTR or NFA registry, claiming it was an AR-15 with M-16 parts, therefore NOT "a machinegun". I have the documents, I can prove this.

    I only point the following out to demonstrate that I don't think we are getting the full story here.

    If the AR15 did in fact have certain M16 internals, the gun could very well be considered a machine gun. If the AR15 had been fitted with an M16 disconnector, trigger and hammer (especially if it had an M16 sear on the trigger) it could function like an AR15 if the other select fire components were absent. Anyone who has built an AR15 knows that many M16 internals would turn their build into a machine gun, even though it is only capable of semi-auto fire (exception would be on parts ATF has said can be used such as M16 bolts and bolt carriers). Getting the gun to fire full-auto again was just another piece of probable cause that ATF was adding to prove their case.

    The standard of beyond a reasonable doubt still holds true here, and if the gun were an unmodified rifle from a manufacturer, I doubt that there would have been a conviction. I am inclined to think that M16 parts were knowingly put in the gun, probably not to commit a crime but rather to save $35 on a new CMT parts kit. Kind of crummy, but we all know that messing with the NFA is a quit way to get in trouble, and this situation is proof of that.

    Then again, the guy could be completely innocent, and the jury was confused by the technical aspects of the case.
     


  3. We are not to the appeal process yet. There are a few things that happened that has caused us to have a hearing scheduled with the judge. At the hearing it will be decided if the jury verdict gets set aside and I go back for a proper trial, or if it is a full acquittal. If he wants nothing to do with it then he has to come up with a sentence. Then we can move several questions of law to the appeals court. I personally do not see this moving forward without getting reversed. Too many things happened that shouldn’t. There is a lot of information that is not out here yet, and I am under a gag order not to talk about it. I will say if you think what you have currently heard about the governments conduct in this case is bad, you haven't heard squat yet.

    But back to the basic thing many are asking, is there stuff that has not been publicly disclosed yet? YES. But I can't be the one to bring it up right now. Best person for first hand information is Len Savage; he can say some of the things I can't, but not all.

    And as for m16 parts in AR-15's, it was a common practice years ago to use them, selectors included. And this particular gun is one of the same make and models recalled for the use of them in the mid 80's (when it was made). The manufacture has documentation of this, but the government precluded us from showing it to the judge and jury. Len Savage did testify to that though after consulting with Olympic Arms on the issue though. You will see that when the full transcripts come out.
     
  4. G36's Rule

    G36's Rule Senior Member

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    Bladerunner71,

    Both links go to nothing.

    Good luck to you in this case. Keep us informed when you can.
     
  5. Fed Five Oh

    Fed Five Oh NRA Member

    2,145
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    Since you're a convicted felon now, how long did they give you to get rid of your firearms?
     
  6. Found guilty by a jury, but I have not completed the conviction process. We are waiting on some other judicial proceedings. If the case passes local judicial review, and there is a sentence handed down and executed, then I will be convicted. At that point we would have to wait on review by the US court of appeals.
     
  7. Seems like they would have to prove that it was malfunctioning at the time of transfer or slamfired on the first shot, otherwise, by their logic they'd be prosecuting the wrong man. I think many could be in the same boat and the trends coming out of the BATFE are disturbing. I had a gun that used to slamfire.

    If it wasn't a "machine gun" at transfer then you must acquit.

    They are friggin' silly with these definitions.Laughed at H.R. 1022" "`(43) Threaded Barrel- The term `threaded barrel' means a feature or characteristic that is designed in such a manner to allow for the attachment of a firearm as defined in section 5845(a) of the National Firearms Act (26 U.S.C. 5845(a)).'."

    Threaded barrels are designed to attach a firearm to your firearm? A silencer may be defined as a "firearm", after the careful definitions of actual firearms in the US code, for regulation purposes but these jackasses are dumbing down the language, the law, and our society.
     
  8. Happened across some more transcripts. I'm posting a few more excerpts from the transcripts for your reading pleasure. I believe they are self explanatory when it comes to the governments new position on what is a MG.

    MR. HAANSTAD: (Assistant US Attorney)
    Now, Mr. Savage may be of the opinion that Exhibit 1
    is not a machine gun. But it's also clear that Mr. Savage
    doesn't consider himself bound by the legal definition of
    machine gun.
    You heard him testify yesterday that it wouldn't
    matter to him if he picked that gun up and pulled the trigger
    once and 50 rounds came out or 100 rounds came out, he still
    would not consider it a machine gun.
    Well, how can that be under the definition that you
    have of a machine gun? Again, that's the definition that
    controls here, not any notion that Mr. Savage may have as to
    what constitutes a machine gun.
    A machine gun is specifically designed by statute and,
    again, about six pages back -- six pages from the back of the
    packet of the jury instructions you're going to receive, that
    definition is provided. And clearly, under the legal definition
    of "machine gun" that you're going to be asked to apply, Mr. Olofson's gun qualifies because, as Mr. Kingery testified,
    as Mr. Kiernicki testified, and as you yourselves all saw in the
    video, when you pull the trigger once on that firearm more than
    one round is fired.


    GOVERNMENT REBUTTAL ARGUMENT
    MR. HAANSTAD: Ladies and gentlemen, the defense has
    invited you to go down a number of paths that stray from the
    straightforward central issues in this case, the first again of
    which is, was Mr. Olofson's gun a machine gun?
    Now, I've emphasized already that you should focus on
    the definition that's provided. And if you do so, you see that
    the statute covered not only as Mr. Fahl indicated a weapon that
    shoots automatically more than one shot -- and he's right,
    that's written in the present tense -- but there's no support in
    that statutory definition for the notion that right as you, as
    jurors, deliberate, we have to demonstrate to you that this
    particular gun shoots automatically. Because the definitionprovides that a machine gun is any weapon which not only shoots
    but which is designed to shoot or can be readily restored to
    shoot automatically more than one shot with a single function of
    the trigger.


    And again, when Mr. Kingery did the test fires,
    including the one that's on video that you've seen -- we didn't
    take you to a test range yesterday but we attempted to bring the
    test firing range to you by video taping this, and in that video
    tape you can see that when Mr. Kingery pulls the trigger once,
    more than one round is expelled, clearly satisfying the first
    part of that definition of "machine gun" that I've asked you now
    several times to focus on. But remember, you don't necessarily have to stop there
    according to this definition because it also, the definition
    also includes firearms that were designed to shoot or can
    readily be restored to shoot automatically.
    So again, under that definition there's no support for
    the notion that every time you go out and fire this weapon ithas to fire automatically. Simply not consistent with the plain
    language of this statute which the court is going to instruct
    you to follow.
    Nor is there any support for the notion that you have
    to use a particular type of ammunition when you fire the
    firearm, and that only if you use a specific type of ammunition
    and it fires automatically does it qualify as a machine gun.
    Again, that particular requirement, that any
    particular type of ammunition be used, simply is not included
    within this definition. And not only is not included, but it's
    not consistent with this definition because, again, it covers
    not only shoot but also which are designed or can readily be
    restored to shoot automatically. Now, as I mentioned earlier, it's somewhat tempting to
    sort of point by point discuss all of the evidence that came
    out, but the fear is that it's, again, gonna lead you down a
    path that's really not -- right on this, right in connection
    with the straightforward central issues that are presented in
    this case.
    But, to the extent that there's some concern, for
    example, that some kind of special ammunition was used in order
    to induce this automatic fire, keeping aside, setting aside for
    one minute whether that matters even under this definition,
    remember the testimony was that the unique type of ammunition
    that was used was the military grade ammunition that OfficerKingery used in that first test fire that he did. That was the
    nonstandard ammunition, the military stuff.
    When Mr. Kingery, on a subsequent test, used regular
    standard commercially available civilian ammunition, the type of
    ammunition that you would go out and buy at the sporting goods
    store, and he popped that ammunition into Exhibit Number 1,
    Exhibit 1 fired automatically. It did so on the second test and
    it did so again on this test that you've seen and which you can
    see again when you're back deliberating.


    And that's what your focus should be on. It shouldn't
    be on this testimony about what might have happened in some
    hypothetical case. It shouldn't be about what's happened in
    other cases. You're asked to decide whether or not this
    particular gun fires automatically. And not only have you seen
    it with your own eyes fire automatically, but you've heard this
    explanation as to why it fires automatically.
    Now, there's also a bit of a danger, I'm afraid, that
    you're gonna focus too much on the possible modifications
    or performance of this gun. There's no requirement that you
    find that Mr. Olofson himself performed the modifications that
    converted this AR-15 into an M-16. In fact, there's no requirement that you believe that
    the gun's been modified to fire as an M-16. The sole issue that
    you have to decide is whether or not the gun in fact firesautomatic. That is, even if a gun came from the manufacturer
    assembled as a machine gun, if Mr. Olofson's in possession of
    that type of gun, that is, a non-modified but nonetheless
    machine gun, and he then transfers it to Mr. Kiernicki, he's
    guilty, he falls within this definition.

    Based on all this, ladies and gentlemen, keeping in
    mind the statutory definition of "machine gun," that is, again,
    any weapon which shoots, or is designed to shoot, or can be
    readily restored to shoot, automatically more than one shot,
    with a manual reloading by a single function of the trigger --that is, again, any weapon that will shoot more than one round
    with one pull of the trigger, or that is designed to shoot that
    way, or can be readily restored though shoot that way, is a
    machine gun.
     
  9. Some interesting quotes from testimony of Max Kingery


    Q. Okay, and how long have you been with ATF?
    A. About two and a half years.

    Q. An FEO? Have you been an FEO that whole time?
    A. Yes, sir, I have.

    Q. And what are your duties and responsibilities as an FEO?
    A. As an FEO primarily we examine and classify items submitted to us as evidence. We also examine items submitted to technology branch by the firearms industry for classification.
    Items that are being imported into the United States are evaluated for their importability. And we answer general firearms related questions to the public and to members of the Industry.

    Q. How are you employed prior to working for ATF?
    A. Prior to ATF I was a sergeant with the West Virginia State Police.

    Q. And what types of firearms training did you receive before you came to ATF?
    A. With the state police I was trained with the service side arm, and with the shotgun and carbines. I was also a sniper, so I'm a member of the sniper team.

    Q. Okay. And have you received firearms training since joining ATF?
    A. Yes, sir, I have.
    Q. And what kind of training is that?
    A. I received training on the classification of firearms according to the Federal Firearms Guide. And I've attended several armors courses on a number of different types of firearms. Ammunition factory tours, ammunition training at those tours. Training on firearms nexus.

    A. And I've written, I believe it's 15, possibly 16 what we call white papers -- Q. What are those?
    A. -- on a number of different firearms. It's basically like a homework assignment of paper. The initial part of my position with ATF I was being trained on the job. And part of that training I had to write these papers on a number of different types of firearms. One of those was the AR-15 series of Firearms.

    Q. Is your experience with the M-16 purely on a firing level or have you repaired or examined the gun through your training and experience in these other past endeavors?
    A. In the past it was mainly usage. With the ATF it's been, it included repair, detailed examination, complete disassembly and Assembly.

    Q. In your training and experience as an expert on AR-15 weapons, you're aware, of course, that many AR-15 weapons, especially those manufactured in the '80s, were manufactured with some M-16 internal parts?
    A. I'm aware that some were, yes.

    Q. Did you ever contact SGW/Olympic Arms about this particular rifle?
    A. No, sir, I did not.
    Q. Are you aware that SGW has recalled this particular rifle?
    A. No, sir.

    based on your training, your
    experience and your examination of Exhibit 1, is it possible that hammer follow was responsible for causing the firearm to fire automatically on those occasions?
    A. As a malfunction or in --
    Q. (Interrupting) Yeah, I'm sorry, there was malfunctioning in that way, and that's what was causing the firearm to fire fully automatic?
    A. No, there was no malfunction of this firearm at all.

    RECROSS-EXAMINATION
    BY MR. FAHL:
    Q. I guess to be clear, is hammer follow a malfunction or not?
    A. It can be. It was intended in this instance.
    Q. Now, going to Mr. Haanstad's questions about firing three rounds and jamming. Why would somebody design a gun to fire three rounds and then jam, have to eject the bolt, start all over, fire three rounds, jam, and do that?
    A. They would not do so, sir.


    I can’t help but comment on a few things.

    1. Almost all of his “training” is limited to the user level of weapons. The rest seems to be merely on the job or maintenance courses so he can try to understand what kind of weapons he is working with. Len Savage on the other hand creates weapons from scratch, and can redesign and remake them at will to be what he wants them to be. As such he also creates the procedures people like Mr. Kingery use to learn about the weapons in their armorors courses.
    2. He is aware of the use of M16 components in Olympic arms/SGW AR’s from the 80’s, but never bothered to contact them for any details. (Plausible deniability through lack of investigation?) Len Savage on the other hand did contact them to verify everything according to his testimony.
    3. With all that superior federal training he can’t seem to make up his mine weather the gun is a malfunctioning semi auto or a FA. He has multiple conclusions that contradict themselves on paper, and in his testimony he first claims the gun is malfunctioning, then states there is no malfunction, then ends this excerpt with no one would make a weapon to do this. A lot of Orwellian double speak in there. I find that a stark contrast to Len Savages testimony that never wavered from the point that the weapon was only malfunctioning, was not modified, and that no matter how much it malfunctioned it would not suddenly become a MG. Maybe if he didn’t have all that superior federal training or those wonderful classification procedures (sic) clogging his head, he could come to an easily repeatable scientific conclusion like Mr. Savage did.
     
  10. Just herd that CNN is airing this case on the Lou Dobbs show in 2 parts. Once tonight at 7-8 EST, and the second part on the next show. Not sure what slot they are giving it, but I was told to look for it in the first half hour. Arm all those recorders, this should be good.
     
  11. From the station personnel…

    “Hello…we will possibly split this story into a two part event…either way we’ll be running something tonight in the show…airs 7P-8p EST on CNN…unsure of the hit time for this piece, but expect it in the first half-hour.


    Part 1 will air tonight around 7:30 PM on the CNN Lou Dobbs Tonight program

    Part 2 will air Friday night / time tbd”
     
  12. 1811guy

    1811guy Formerly1811guy2

    3,531
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    I disagree with the prosecutor here. The intent still needs to be proven. You cannot convict on the mere definition of it (the actus reus), you still have to show intent (mens reus), i.e. - that the defendant knew the gun was full auto (whether intentional or not), and that the defendant intended to keep it that way, or make it that way, or was indifferent to that fact that it was. If I were the defense, that would be my focus in trying to get the conviction thrown out on appeal.
     
  13. Now I know most folks are under a bit of stress over the Heller case, and many including myself are not happy with my case. No one around here has more stress than I do right now. But whoever posted that crap up on Google group’s needs to STOP. You are not helping our cause by doing what you did. And you are only going to get me and my family hurt or worse. Don’t let me see it again.
     
  14. Just a note to update everyone. I was just given official notice of a post trial motion and sentencing date of 8 May. Motions will be heard right before any sentencing, with the hope that at least one of the motions to dismiss wins out. If not, then at least we have an answer on this from the court and the full story can come out. Anyone wishing to attend the hearing is welcome. It will be heard at the Federal court house in Milwaukee Wisconsin in front of Judge Cleverts at 1430. I’d be there a bit early if you want seating. The motions are expected to take 30-60 minutes; any sentencing would take an additional 15-30 minutes if it goes that far. If you want attend please plan on good behavior in the court room, and by extension the Federal court house. Neither is the place for any dissent. Opinions can be freely rendered after the hearing outside the courthouse to whoever chose’s to listen.
    I will also add that additional reading on this can be done in at least the next two issues of Soldier of Fortune. In addition to that Lou Dobbs has more coverage ready to roll from some very prominent people weighing in on this subject. Most likely additional coverage will also be given to me after the fact. I will post any dates of the airing when it is decided the timing is right by the network.

    I promised you more and now it’s coming. True to my word all I can say is brace yourselves, its worse than you think, and unlike the BATFE in this case we can prove it.
     
  15. K.new information for everyone. More to come befor the 8th.

    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF WISCONSIN
    UNITED STATES OF AMERICA,
    Plaintiff,
    v. Case No. 06-CR-320
    DAVID R. OLOFSON,
    Defendant.

    DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO COMPEL
    DISCLOSURE OF EVIDENCE
    DAVID R. OLOFSON, by counsel, submits this memorandum in support
    of his motion for the disclosure of evidence.

    I. Background.
    Olofson had previously requested disclosure of the SGW letter
    from the government on September 25 and December 10, 2007. The government
    refused to turn over the SGW letter. Accordingly, Olofson filed a motion to compel
    its disclosure, along with other documents not relevant here, on December 28, 2007.
    At the final pretrial conference on January 3, 2008, the Court refrained from making
    any decision regarding the SGW letter until it heard back from the government as
    to whether a SGW letter actually existed.

    On January 7, 2008, the morning of Olofson’s trial, the Court inquired
    of the government as to the existence of a SGW letter. The government asserted that
    a SGW letter exists, but that it did not believe that the SGW letter was discoverable
    because, according to the Bureau of Alcohol, Tobacco and Firearms (BATF), it
    contained privileged tax return information and was therefore protected under 26
    U.S.C. § 6103. Moreover, the government contended that in any event the SGW
    letter was not exculpatory. Based upon the BATF’s representations, which were
    made through the government that the SGW letter contained return information, the
    Court denied Olofson’s motion to compel its disclosure. Olofson proceeded to trial
    and was found guilty of transferring a machine gun by a jury on January 8, 2008.

    II. Argument.
    Any correspondence from the BATF to SGW/Olympic Arms regarding
    the use of M-16 parts in its AR-15 rifles is not privileged return information as that
    term is defined in 26 U.S.C. § 6103 and is therefore discoverable. Moreover, the
    SGW letter is discoverable because it directly contradicts the government’s theory
    during the pendency of this case that because Olofson’s AR-15 contained the
    following M-16 parts, it qualified as a machine gun: a M-16 trigger, hammer,
    1Olofson has never seen a copy of the SGW letter. The information
    regarding its contents comes from the recollection of Bob Schuetzen, owner of
    SGW/Olympic Arms. Schuetzen’s original letter from the BATF was destroyed
    in a fire a number of years ago.

    disconnector and selector. Accordingly, the SGW letter is material to the issue of
    guilt or innocence and is discoverable under Brady v. Maryland, 373 U.S. 83 (1963).

    A. Return Information.
    For the purposes of 26 U.S.C. § 6103, a return is any tax or information
    return that is required by, or provided for, or permitted under Title 26, which is filed
    with the Secretary by, on behalf of, or with respect to any person. 26 U.S.C. §
    6103(b)(1); Ryan v. Bureau of Alcohol Tobacco and Firearms,715 F.2d 644, 646 (D.C. Cir.
    1983). “A ‘tax return’ is a return filed by the person liable for the tax to which the
    return information relates.” Ryan, 715 F.2d at 647, FN4. Return information
    includes, among other things, a taxpayer’s identity, amount of his income, assets
    and liabilities if they are received by, recorded by, prepared by, furnished to or
    collected by the Secretary with respect to a return. 26 U.S.C. § 6103(b)(2)(A); Ryan,
    715 F.2d at 646. According to Ryan, the proper test to determine whether something
    is return information is to look to the formality of the document and the
    standardized requirement of its filing. Id. at 647.

    Under the standard created by then Judge Scalia of the D.C. Circuit, the
    SGW letter is clearly not return information. The document(s) in question1 were
    generated by the BATF and address BATF’s concern regarding SGW/Olympic

    Arm’s use of M-16 parts in its AR-15 rifles and malfunctions that may be occurring
    because of the use of M-16 internal parts; the documents were not filed by the
    taxpayer. Nor were the documents generated to protect or regulate revenue streams
    or assess liability regarding a particular taxpayer. Instead, the correspondence
    issued from the BATF in response to safety concerns about SGW/Olympic Arms
    AR-15 rifles. Because the SGW letter is not a return as defined in § 6103, the contents
    of the letter are not return information and are not protected from disclosure under
    the statute.

    B. BATF Memorandum.
    Not only does the BATF’s position mistake the controlling law with
    regard to the § 6103 privilege, but its own internal policy on the subject contradicts
    its position. Olofson has been made aware of an internal BATF memorandum that
    discusses the sort of information that the BATF collects that should be considered
    return information.

    The BATF memorandum at issue is BATF memorandum number 22889,
    which is dated August 18, 1980.2 The memorandum discusses whether the
    information listed on NFA transfer cards is protected under 26 U.S.C. § 6103 in
    response to a request for disclosure pursuant to the Freedom of Information Act
    (FOIA). The BATF memorandum opines that the only the name the transferee on
    the NFA transfer form is return information because the transferee may be subject
    to tax or liabilities based upon the transfer. All other information on the NFA
    transfer forms would be discoverable under the FOIA. Because the SGW letter does
    not discuss the transfer of firearm or registration of firearm under the NFA, under
    BATF policy, the SGW letter does not contain return information for the purposes
    of 26 U.S.C. § 6103 and it is discoverable under the statute.
    C. Brady v. Maryland, 373 U.S. 83 (1963).
    Through the entire pendency of this case, the government has
    maintained that it is the presence of internal M-16 parts in Olofson’s AR-15 that
    make it a machine gun. See, e.g., Government’s Response to Defendant’s Motion for
    Judgment of Acquittal at 3 FN1, Docket No. 80. Upon information and belief, the
    SGW letter directly contradicts the government’s assertion regarding the four
    internal M-16 parts. As such, that information is material to the issue of guilt and
    is discoverable under Brady.
    III. Conclusion.
    WHEREFORE, David R. Olofson, by counsel, respectfully requests that
    the Court grant his motion to compel the disclosure of copy of any and all
    correspondence from the BATF to SGW/Olympic Arms or concerning
    SGW/Olympic Arms’ use of M-16 parts in the production of its AR-15 type weapons
    between 1980 and 1990, particularly the use of M-16 triggers, hammers,
    disconnectors and selectors.

    Dated at Milwaukee, Wisconsin, May 1, 2008.
    Respectfully submitted,
    s/ Brian T. Fahl
    Brian T. Fahl, Wis. Bar #1043244
    Counsel for Defendant
     

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