Malfunction = Machinegun = Arrest & Conviction

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

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  1. 1For the purposes of simplicity and clarity, Olofson will refer to the
    correspondence as the “SGW letter” from this point forward.

    v. Case No. 06-CR-320

    DAVID R. OLOFSON, by counsel, submits the instant motion to compel
    the disclosure of evidence. Olofson seeks to compel the government to disclose a
    copy of any and all correspondence1 from the Bureau of Alcohol Tobacco and
    Firearms (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. The
    Court had previously denied Olofoson’s motion for disclosure based upon the ATF’s
    representations that the SGW letter contained privileged tax return information.

    Olofson now seeks disclosure of the SGW letter because the BATF’s contention that
    the SGW letter contains privileged return information is both incorrect in law and
    contrary to internal BATF policy. Moreover, the SGW letter is exculpatory because
    upon information and belief, it contains evidence that directly contradicts evidence
    elicited by the government during trail that was central to its theory of guilt. See
    Brady v. Maryland, 373 U.S. 83 (1963). In support of this motion, Olofson submits an
    accompanying memorandum of law.

    WHEREFORE, David R. Olofson, by counsel, respectfully requests that
    the Court order the defendant to disclose 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 as soon as practicable.

    Dated at Milwaukee, Wisconsin, May 1, 2008.
    Respectfully submitted,
    s/ Brian T. Fahl
    Brian T. Fahl, Wis. Bar #1043244
    Counsel for Defendant
    517 E. Wisconsin Avenue, Room 182
    Milwaukee, WI 53202

    Wanna kill these ads? We can help!
    v. Case No. 06-CR-320


    DAVID R. OLOFSON, by counsel, submits the instant motion for a new
    trial pursuant to FED. R. CRIM P. 33. The instant motion is dependent upon Olofson’s
    motion to compel the disclosure of evidence, Docket No. 81. If the motion to compel
    is granted, the new evidence will require that a new trial be granted in the interest
    of justice. In support of his motion for a new trial, Olofson alleges the following:

    1. The disclosure of the correspondence from the Bureau of Alcohol
    Tobacco and Firearms (BATF) to SGW/Olympic Arms constitutes newly discovered
    evidence. Because the instant motion is based upon newly discovered evidence and
    has been filed within three years of the verdict, it is considered timely. FED. R. CRIM
    P. 33(b)(1); United States v. Cavendar, 228 F.3d 792, 802 (7th Cir. 2000).

    2. The SGW letter directly contradicts the government’s position at trial
    that Olofson’s AR-15 rifle was a machine gun because it had four internal M-16
    parts. Contrary to a motion brought under Rule 29, the Court, in a motion under
    Rule 33, is allowed to evaluate the weight of the new evidence and make credibility
    determinations regarding it. United States v. Eberhart, 388 F.3d 1043, 1050 (7th Cir.
    2004). After evaluation, it is clear that the SGW letter undermines the jury’s verdict
    in this case and creates a miscarriage of justice. United States v. Reed, 875 F.2d 107,
    113 (7th Cir. 1989).

    WHEREFORE, David R. Olofson, by counsel, respectfully requests that
    the Court grant his motion for a new trial pursuant to FED. R. CRIM. P. 33.

    Dated at Milwaukee, Wisconsin, May 1, 2008.
    Respectfully submitted,
    s/ Brian T. Fahl
    Brian T. Fahl, Wis. Bar #1043244
    Counsel for Defendant
    Federal Defender Services of
    Wisconsin, Inc.
    517 E. Wisconsin Avenue, Room 182
    Milwaukee, WI 53202

  3. From
  4. I belive these are not known here yet either.





    v. Case No. 06-CR-320




    David R. Olofson, by counsel, asks this Court to issue a judgment of

    Acquittal pursuant to FED. R. CRIM P. 29(a). Olofson argues that the government's case in chief failed to present evidence sufficient to sustain a conviction.

    The government is required to prove that Olofson knowingly transferred a machine gun. A "machine gun" is a weapon that, once its trigger is depressed will automatically continue to fire until its trigger is released, or the ammunition is exhausted." United States v. Fleischli, 3 05 F. 3d 643, 6 55 (7th Cir. 2002).

    Here, the only evidence that the weapon at issue fired as a machine gun

    was when the ATF test-fired the weapon for the second time using soft-covered ammunition. The weapon did not function as a machine gun when it was fired by

    Robert Kiernicki because it only fired three rounds, although there were additional rounds in the gun and Kiemicki did not remove his finger from the trigger. The gun therefore did not automatically continue to fire until its trigger was released or the ammunition was exhausted." The government therefore failed to meet its burden to produce evidence beyond a reasonable doubt that the firearm at issue was a machine gun" for purposes of 18 US.C. § 922(0). Accordingly, the Court should issue a judgment of acquittal pursuant to Rule 29.

    Dated at Milwaukee, Wisconsin, January 7, 2008.

    Respectfully submitted,

    Brian P. Mullins

    Brian T. Fahl

    Counsel for David R. Olofson

    517E. Wisconsin Avenue, Room 182

    Milwaukee, WI 53202
  5. This is the original that was denied under the 6103 claim by the government.






    Case No. 06-CR-320




    DAVID OLOFSON by counsel, asks the Court to compel the government

    to disclose the following evidence

    1. All documents pertaining to the 10/20/06 and 11/20/06 reports of

    technical examination, including but not limited to: work notes, work

    sheets, personal notes, photographs, video, audio, management

    directives, e-mail, etc.

    2. Copy of the published testing procedures used in FTB testing and

    examination of defendant's firearm, as well as whether those

    procedures are publically available.

    3. All training certificates, diplomas, levels of expertise, etc., on the AR-15

    and M-16 firearms for SA Jody M. Keeku.

    4. All ATF correspondence to and from SGW and Olympic Arms

    regarding the use of M-16 triggers, hammers, disconnectors and safety

    selectors in AR-15 type firearms, specifically between 1980 and 1990.

    5. All documents concerning the removal, correction or update of any

    AR-15 type rifles with M-16 components from the NFRTR (NFA

    registry) from 1986 to present, specifically but not limited to entries

    made by: Rick Vazquez and Sterling Nixon of the FTB and Ken

    Houtchens and Gary Shiables of NFA.

    6. All documents relating to the refusal to accept any AR-15 type firearm

    with M-16 components for registration on the NFRTR.

    7. All FTB letters of classification, determination, etc. of a “shoe lace"

    being determined a machine gun or “string trick”, specifically including 1996 to present.

    8. All documents relating to the removal of Mr. Sterling Nixon from his

    position of Firearms Technology Branch Chief. This information can

    be obtained from the ATF director's office from Lou Raden or Audry


    Counsel for Olofson has previously requested these items from the

    government by letters dated September 25, 2007 (1) and December 10, 2007 (copies of

    the letters are attached hereto). The items requested are essential to Olofson's

    defense and are also needed to present to Olofosn's expert witness before Olofson

    can provide the government with a summary of expert testimony as required by

    FED. R. CRIM. P. 16(b) (1) (C:

    The requested items will help to demonstrate that ATF has determined that

    the particular Olympic Arms rifle at issue here is not a machine gun. As such, these items constitute exculpatory evidence under Brady v. Maryland, 373 U.5. 83 (1963),

    and the Fifth Amendment's Due Process Clause imposes a burden on the prosecutor

    to "learn of any favorable evidence known to others acting on the government's

    behalf." United States v. Hamilton, 107 F.3d 499,509 (7th Cir.1997).

    (1) In this letter, Olofson also requested the following items:

    (1) Copy of ATF Ruling 81-4;

    (2) A TF "Open Letter," Federal Firearms Licensee News Publication, issued in the fall of 1986;

    (3) United States v. Corcoran, Case No. 88-11 (W .D. Pa. April 5, 1988), transcript pages 39-40,

    which should be available to you from ATF Chief Counsel's Office;

    (4) ATF March 11, 1986 memorandum concerning the use ofM-16 components in AR-15 type rifles; (5) United States v. Staples, N.D. Oklahoma (Judgment entered February 21, 1991), testimony of BATF agent McLaughlin, which should be available to you from ATF Chief Counsel's Office. The government responded in a phone call that it will not provide these items to Olofson as they can be obtained elsewhere. Additionally, the government indicated that if these items are obtained from other sources, it would not challenge the authenticity of the documents.

    Dated at Milwaukee, Wisconsin, December 28, 2007.

    Respectfully submitted,

    Brian T. Fahl, Bar # 1043244

    Counsel for Defendant David Olofson

    517 E. Wisconsin Avenue, Room 182

    Milwaukee, WI 53202
  6. Another news flash. The hearing, and possible sentencing, on the 8th has been changed. New date is the 13th at 1430. Reason giving is that the Judge believes the documents we have submitted deserve serious attention on his part, and he believes the current time table would not allow him to give them the attention they need.
    We will hopefully find out on Tuesday what he finds out in his investigation on the submitted documents. Also noteworthy is the fact that the ATF has removed a pertinent document from there web site. One that they claimed was “privileged 6103” information that they had up for public viewing.
  7. Another update. Just was told CNN decided now was a good time to run the next segment on this issue. It will be airing on Lou Dobbs tomorrow. I’ve been told you will find some interesting personalities weighing in on this one.
  8. Looks like I’ll be busy with CNN tomorrow morning again talking about some of the information the judge has found so interesting. Maybe I can help clarify a few things for the good folks out there still wondering what’s been going on. Time will tell.

    I’ll post a few more picks and drop a note when the next part airs after tonight.
  9. Ok. A lot of folks have been asking questions about what the ATF pulled down from their web sight to try to hide it from sight. This is a copy of it.

  10. Just finished another interview with Bill tucker from CNN. They are running another segment tonight with some of the new footage. Lot of work to do in very little time but they seem to do well under pressure. Be interesting to see what they come up with.

  11. I did find last evenings broadcast surprising to say the least. Here is a link to part 4. Please note that half of it is not there, that being the part with the LEAA ripping the ATF on their practices. But the first half is still intact. I would hope everyone who hasn’t already would drop Lou Dobbs a note and thank him for what can only be described as unwavering and steadfast support for gun owners the likes of which I have never seen on a major network. It looks like we now have one singular friend in the mainstream media not afraid to stand up on our rights and take a rock solid stand, not just give it passing lip service. Don’t let that support go unnoticed.
  12. Government finally responded, but only to the motion for a full acquittal. They do a good job making our arguments for us. A lot happening very quickly now with a few working into tonight to be ready for arguments tomorrow. As such this will be the last bit of information I can post until tomorrow night. Below are some excerpts from the reply and some internal correspondence. Government keeps trying to call an apple an orange. May have worked the first time around, but I don’t think this bird is going to fly anymore.

    And e-mails and other documents on Olofson’s computer showed that he had ordered M-16 parts.

    1. Email referred to clearly shows Olofson turning down M16 parts, not buying them.

    Firearms Technology Officer (FTO) Max Kingery testified that Olofson’s firearm fired automatically because, although it was a semiautomatic AR-15, it had M-16 fire control components installed in it. Kingery also testified that the particular M-16 components – the trigger; the selector; the hammer; and the disconnector – in Olofson’s firearm were not installed by the manufacturer. Someone had to have modified the firearm to include those four components.

    2. Max Kingery testified he did not think the weapon was made with M16 parts, but that he did not check with the manufacture. Len Savage said it was and did check with the manufacture. Therefore no modification was done by Olofson.

    Olofson also had a manual that described how to convert a semiautomatic AR-15 to an automatic M-16 by substituting the very M-16 parts that were in Olofson’s gun.

    3. The manual does not show how to convert a AR-15 to a M16 by replacing these 4 parts. It covers much more complex conversions requiring knowledge Olofson does not have.

    That the firearm failed to fire automatically on one occasion when it was loaded with special hard-primered military grade ammunition does not remove the gun from the compass of the statutory definition.

    4. Shooting is undefined in the statue. It could be said it requires a intended action on the part of the person firing the weapon, and a purposeful design of the weapon to do what is intended. In this instance there is no conversion, but a malfunction. As such the weapon was malfunctioning, not shooting.

    A. The evidence at trial clearly supports a rational finding that the firearm in
    question was a machinegun.
    Olofson argues that, because the statute is written in the present tense, a firearm
    qualifies as a machinegun only if it always fires automatically and only if it fires
    automatically regardless of the type of ammunition used.
    Olofson’s interpretation does not flow from a reading of the plain language of §
    922(o). Rather, his interpretation engrafts additional elements onto the statute, which by its terms does not require any explanation for automatic fire (such as that a particular type
    of ammunition be used or that a firearm be modified to cause automatic fire); nor does the
    statute require any particular number of tests or any particular “error rate.” Factors like
    those identified by Olofson are relevant only to the extent that they shed light on whether
    Olofson knew that his firearm fired automatically.

    5. Lack of scientific testing standards makes any testimony by the ATF vague. Under the US attorneys standard if they can do anything to make a gun go bang more than once you are guilty of a felony. Doesn't matter if they merely use ammunition it is not chambered in or modify the weapon themselves. This makes every semi automatic weapon contraband. How con an regular person figure out if a weapon is a mg if the ATF can't get it strait? No standers makes it unconstitutionally vague.

    6. There was no evidence about the parts presented in court because the government lied to the judge to cover it up. There was testimony though.
  13. I'll be posting up information on yesterday from my notes latter on this morning. Take a while to condense it from the 10 pages or so I have. I think everyone will find it interesting. As promised I can now start posting information to fill in the blanks of the case that haven’t been talked about yet that we all know are there. Those should start going up this afternoon. Then you can see just how deep this rabbit hole goes.
  14. K. These are the facts listed from my notes in the courtroom during the motion hearing and sentencing. They are from what was said by 3 individuals, the Judge, the assistant US attorney, and the defense attorney. Nothing in here is to be taken as a quote since I’m condensing it from around 10 pages of shorthand, although some of it will be nearly identical to what was said. I have already been told by a half dozen attorneys to still keep my mouth shut and not express any pointed opinion other than I am very disappointed at the turn of events as they unfolded. Their reasoning is the high likelihood of this being overturned. This is not to say others can’t speak their opinions and other stories about this can’t be told other individuals involved. More from them later to clear up some of those glaring holes everyone knows is there in this case.

    Motions were done in this order:
    New trial

    As soon as I heard what order the judge wanted to do them in I knew this was going south.
    All were denied for the following reasons.
    It is not necessary to allege or prove the weapon was modified in any way. No one has alleged or proven that it was, nor has the jury found that it was modified. All that the government needs to prove is that the gun meets the strict statutory interpretation. That it may be a factory gun in a configuration approved by the ATF makes no difference as far as the statue is concerned. As such the government disclosed a single document to the court, one of many we were seeking to have disclosed. The judge looked at it, said it appeared to be a letter to SGW/Olympic arms, that it did seem to discuss the guns being made with M16 parts, but because the idea that it was made that way has no bearing on the statue, and because the jury was not asked to find any changes to the weapon the document was not exculpatory and need not be disclosed. The document was then added to the evidence list and sealed. With that sealed there is no new evidence for a new trial to happen. No one would comment on the covering up of any paperwork under the 6103 tax issue. But the judge admitted the government has not disclosed all possible paperwork to the defense. Video of the gun firing the commercial ammo is played. Judge says a malfunction in a semi can be a MG under the statue. Admits there is no M16 bolt carrier or auto sear in the gun and that the gun was apparently made with the 4 M16 parts it has. Points to his interpretation of it being a MG based on Agent Kingeries testimony and says he could not give any credibility to Mr. Savages testimony because it was all hearsay and second hand as he only spoke with SGW and only read Agent Kingery s report but never tested the gun himself. Moved on to ATF ruling 81-4 and the cocorian case from 88. Both say you have to have an auto sear to have a MG. Points to Agent Kingorys testimony that it does not need a sear to be a MG. We pointed out rulings that it must work properly as a MG as designed and not jam. Judge admits the record indicates the gun will not work all the time but repeatedly jams. Again under a strict reading of the statue is doesn’t matter.

    That is the basics on the motions. No new evidence, no new trial. Not void for vagueness because the statue it clear, any gun that goes bang more than once, no other requirements for standardized testing of any sort, or modification to the gun needed.
  15. Ok. On to the sentencing phase. Judge commented on the following things.
    My knowledge of the different jurisdictions we have sovereignty. Knowledge of weapons and military training that make me particularly dangerous. Claims I knew the weapon was a MG as per testimony, even though the testimony was recanted and the only statement from me to the local Pd was I know what a MG is and that is not it. Claimed I have ties to vigilantly militia groups. Points to a email between me and the minute men discussing stopping down and helping out someday as proof of the allegation. Points to pdf manual of conversions as proof I somehow meant this to happen. (Thought this was about a malfunctioning gun?) As addition proof I meant this to happen says I wanted Mr. Kerniki to shoot it as an auto, why else would I give him 100 rounds every 2 weeks. Adds that I admit knowledge of FA to the LEO’s. Leaves out the part where I added I don’t have the skill for machining. Talks about a CCW case that was tossed after I produced a video of the gun in the open and a 911 tape with the caller saying it was open carry. Said it didn’t matter if the charge was dropped and that it was openly carried (legal in WI), anyone who carries a gun in public is endangering public safety (LEO anyone?). Especially if children are around. Points to a mystery document supposedly a letter of reprimand from the army. No proof of service was included with this document. ATF says they did not get it from the Army, but found it in the data on one of the hard drives taken. Document claims I destroyed data on military computers, sold or transferred military data to outside militia or terrorist groups, and was AWOL. I have JAG looking into this BS now. Will know more later. Interesting to note this happened at the same time I received an Honorable discharge and AAM for maintaining Army computers and improving unit data processing. Not sure how I can supposedly be doing both things at the same time, but I will find out. Brings up the giving of ammunition is evidence of some kind of illicit profit making on my part somewhere and that I must have been ignoring the law somewhere to do that. Claims all of the above is proof of less than honorable service in the military and willful disregard of the law. Goes over cases showing people who had real MG’s on a first offence and were either given 12 months probation of let off with a deferred prosecution agreement. Says just because it’s done doesn’t mean it should be done in this case, and that an example must be set to deture others from committing the same crime.

    End result is a sentence as follows:
    30 months confinement (26 served with good behavior).
    2 years probation with 30 hours community service each year.
    Give DNA
    No guns or drugs
    $100.00 Special assessment
    Points out importance of submission to federal system
    Puts on the record that He has no reason to believe I am a flight risk or that I would misbehave in anyway. Says I have been polite and co operative throughout the entire process. As such I am not remanded to custody, but will self report when noticed at my expense.
    Notice of appeal was put on the record.
    Judge would not issue a stay of execution of sentence at his level; one is being put in for at the next level.
    Some other paperwork is being done, not clear on it all yet. When I know more I will post it.
  16. Now a while back I promised to show everyone how deep this rabbit hole is and let them see the whole story. As such I am releasing a number of witness accounts. Most have nothing to lose or gain from speaking up other than the fact they make themselves a target of the feds. These will be released one at a time over the next few days. Draw your own conclusions about who has been telling the truth through this, who has been full of BS, and who is out of control. Now with no further ado here is the beginning of the rest of the story from those who lived it.
  17. How You Can Become A
    “Gun Felon”

    “If you pull the trigger once and it fires more than one round, no matter what the cause it’s a machine gun.”

    At 2:15 PM on January 8 of this year, the Milwaukee jury in the trial of United States vs. David R. Olofson convened. Forty minutes later they emerged, returning a unanimous verdict against the veteran and National Guardsman: “Guilty.”

    Olofson, you see, had loaned one of his rifles, and it malfunctioned at a range, firing off short bursts before jamming. This was called to the attention of local authorities who seized the rifle, an Olympic Arms AR-15. They in turn called BATFE, who decided to make a federal case out of it, charging Olofson with illegally transferring a machinegun.

    Enter Len Savage (See “Failing the Test,” July 2005), President of Historic Arms, LLC, brought in by Olofson’s defense to testify the automatic fire was not by design or intent, but rather by mechanical failure, and that the firearm in question was simply a semiautomatic rifle that needed to be repaired.

    The opposition would have none of that. Savage was not permitted to personally examine the rifle — not even to touch it. He was required to observe as the ATF officer opened it for inspection. His professional credentials were challenged by the prosecution, who wanted his testimony excluded, even though Savage is a firearm designer by profession, and the government’s expert witness received all of his training in the 2-1/2 years he’d been with the bureau. Then the prosecution reneged on its pledge not to sequester witnesses, and had Savage removed from the courtroom so he could not hear the government’s testimony.

    So in the end, it didn’t matter this was merely a case of a “hammer follow.”

    It didn’t matter the rifle in question had not been intentionally modified for select fire, or that it did not have an M16 bolt carrier or sear, that it did not show any signs of machining or drilling, or that that model had even been recalled a few years back.

    It didn’t matter that, when asked if he’d test fired the gun, Savage testified “From my examination and from what I saw on the [ATF test] video I wouldn’t want to attempt it … the video shows the guy who was shooting it was so afraid to fire it from the shoulder he had to hold it out in front of him. So he knew it was dangerous.”

    It didn’t matter the government had repeatedly failed to replicate automatic fire until they replaced the ammunition with a softer primer type. It didn’t even matter that the prosecution admitted it was not important to prove the gun would do it again if the test were conducted today.

    What mattered was the government’s position that none of the above was relevant because “[T]here’s no indication it makes any difference under the statute. If you pull the trigger once and it fires more than one round, no matter what the cause it’s a machine gun.”

    No matter what the cause.

    Think about if your semiauto ever malfunctions. Because that’s how close you could be to becoming a convicted “gun felon.”

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