Recent Federal Case (Merged with " Rifle malfunction= prosecution?")

[Historic Arms LLC]

Duck Hunters and Sportsmen, Your Next!

Mike Sullivan has taken the ATF to new low during a Federal trial this week, [US v. Olofson, Milwaukee Wisconsin]. US District Judge, the Honorable Charles N. Clevert chastised Assistant US attorney Gregory J Hannstad, for attempting to "Dupe the Defense" during the trial for attempting to use slight of hand to prevent me from testifying for Mr. Olofson.

Mike Sullivan and the ATF Duped the Federal District Court, and Judge Clevert. [But this is nothing new: C:\Users\Owner\AppData\Local\Temp\US judge in Boston urges stricter discipline for prosecutorial misconduct- The Boston Globe.mht ].

You see Mr. Olofson, a Drill Instructor in the National Guard, was asked by Robert Kiernicki to teach him how to shoot a firearm. Olofson did, and from time to time let Mr. Kiernicki borrow his oldest AR-15 and go to a public range and target practice. He always returned the firearm, and on his third time at the range after 120 rounds down range the rifle sputtered three times and jammed. The Law enforcement on the range swept in...

The rifle in question seized now by the ATF was sent to Firearm Technology Branch [FTB], the testing Arm of the ATF. They examined and test fired the rifle, and declared it "just a rifle". You would think it would all be resolved at this point, this was merely the beginning. The Special Agent in Charge Jody Keeku asked FTB to re-test the firearm, and this time use soft primered commercial ammunition.

FTB has no standardized testing procedures, in fact has no written procedures at all for testing firearms. They had no standard to stick to, and gleefully tried again. The results this time "a Machinegun". ATF with a self admitted 50% error rate pursued an indictment and Mr. Olofson was charged with "Unlawful transfer of a machinegun". Not possession, not even Robert Kiernicki was charged with possession [who actually possessed the rifle], though the ATF paid Mr. Kiernicki "an undisclosed amount of money" to testify against Mr. Olofson at trial.

At the same time Mr. Olofson was being charged with "Unlawful Transfer", because the rifle malfunctioned, and had 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, therefor NOT "a machinegun". I have the documents, I can prove this.

The court was never shown this information. When Mr. Olofson's Attorneys requested the court compel the ATF to provide this and other documents that proved his innocents to the court, the ATF Chief Counsel's Office told the court the documents contained tax information [federal excise tax stamp for $200], and the court was prohibited from seeing them. All documents even the letter to the manufacturer of Mr. Olofson's rifle from ATF that mandated a "safety recall" in 1986 due to the rifle going "full auto" if it malfunctioned were kept secret from the Honorable Judge Clevert, and the rest of the court. ATF Chief Counsel told AUSA Haanstad, who told the court "The Court will have take our word, that the documents in question contain tax information, and contain no exculpatory evidence".

It gets even worse...

AUSA Haanstad claimed the law does not exempt a malfunction. He claims that it states "any weapon that shoots more than once without manual reloading, per function of the trigger is a machinegun". To clarify, when I was on the stand, I asked him "Are you saying if I take my Great Granddaddy's double barrel out and I pull one trigger, and both barrels go off, its a machinegun?". He went back to the law [United States Code, Section 5845 (b)], and claims "any weapon that shoots..."

If your semiautomatic rifle breaks or malfunctions your are now subject to prosecution. That is now a sad FACT. I guess we now know what Senator Kennedy meant when he said he looked forward to working with Mike Sullivan on "Gun control issues" after his committee approved him for full Senate vote.

To those in the sporting culture who have derided "black guns" and so called "assault weapons", your double barreled shotgun is now next up to be seized, and you possibly prosecuted if the ATF can get it to "fire more than once".

Hey, but don't worry. The people testing it have no procedures in writing, the testing will be in secret, and if you know of information that proves YOUR innocents, maybe the ATF won't claim it's tax information at YOUR trial, and prevent YOUR judge from viewing it.

Are YOU next up on the menu?

Len Savage,
Historic Arms LLC

 

[Master Blaster]

So what was the outcome acquital or conviction?

Was the judges admonishment read into the trial record?

 

[Bubbles]

http://www.ar15.com/forums/topic.html?b=1&f=6&t=507483

Much more info on the case since Len left out a lot of details. Make sure you have several hours free before you start reading.

ETA: Len, next time you have me proofread something for you, use it ok? The misspellings and grammatical mistakes make for a tough read.

 

[Historic Arms LLC]

Here's the details requested

1). Guilty...Can't fault the court [jury included] as they were unaware of the documents contents. The jury was given a modified version of USC 26 5845(b) {definition of a machinegun} to base their verdict. The Judge was told he was forbidden by Federal law from viewing the documents, (Sec. 6103), his hands were tied.

2). Yes is on the record, the transcript is already ordered.

 

[Master Blaster]

Edited due to reading the whole story and having my doubts about the verrracity of the ATF's claims.

I will say though that I will never consider loaning and ar-15 out to anyone unless I am present at the range and they are shooting a couple rounds out of it under my supervision.

It seems possible that the person it was loaned to may have monkeyed with the gun, or it simply malfunctioned.

 

[Historic Arms LLC]

I saw and looked inside the "Machinegun" in question.

No extra pins. [or holes] for an auto sear

No three round burst parts.

Internal fire control consistent with SGW standard factory build in 1985 [approx time of the rifles manufacture].

No M-16 bolt carrier.

I was there when witnesses testified, No mention of "three round burst" mode. Only told after about 120 rounds gun fired three rounds and jammed.

ATF also claimed it was NOT a machinegun, at one time.

ATF computer forensic specialist only found ONE e-mail where Mr. Olofson was offered M-16 parts. This was like from 2002-2003. No internet Sales what so ever.

PS: Sorry Bubbles I don't have word, I have lotus, shot from the hip.

 

[Bartholomew Roberts]

Definitely makes me think twice about M16 parts in an AR15. Seems like Mr. Olofson would have had an easier case without that complication, though as Mr. Savage noted, it was real common for all manufacturers to use M16 parts in the 1980s.

 

[nicki]

This case presents opportunity for us.

The conduct of the BATFE on this case is something that we could get broad consensus across the political spectrum on.

This is a case that we could use to get so called sportsmen out of "their comfort zones".

Perhaps this case could become a 2nd amendment case, especially if Heller goes our way.

When Heller goes our way, many politicians may want to avoid the NFA being overturned and perhaps clean up legislation could actually have a chance of passing Congress.

There is a shift by some on the left to our side. While the left is generally anti gun, they are concerned about the rest of the bill of rights, more so since the passage of the patriot act and other things being down because of the "War on Terror".

The issue in this case is more than gun rights, it is all rights.

This man was denied not only his 2nd amendment rights but from what I can see his 4th, 5th, 6th, 7th and 8th amendment rights as well.

Just my 2 cents.

Nicki

 

[Regolith]

So...will there be an appeal?

 

[DKSuddeth]

The Judge was told he was forbidden by Federal law from viewing the documents, (Sec. 6103), his hands were tied.

***???????

 

[DMF]

The Judge was told he was forbidden by Federal law from viewing the documents, (Sec. 6103), his hands were tied.

If you're claiming that a Federal Judge said that 26USC6103 ( LINK ) prevents the Federal Judge from veiwing documents related to registration of NFA weapons in a Federal criminal case then your claims are suspect, because that is false. If you read the disclosure exceptions, one of them is, "pursuant to and upon the grant of an ex parte order by a Federal district court judge or magistrate judge." If the tax documents are relevant to a Federal criminal case, that Judge is the one who decides if those documents can be disclosed.

 

[556nato]

Rifle malfunction= prosecution?

I heard a bit of news that said that when a National Guardsman's weapon malfunctioned, and fired multiple rounds, he was charged with illegal possession of an automatic weapon. I'd like to think there was something more than meets the eye to this case.

Is it really accurate that if your internal parts wear, you can be charged with a felony? If so, CHECK YOUR PARTS REGULARLY!!!:banghead:

 

[hksw]

Link to story?

 

[w_houle]

I spent six years in th KS Army National Guard and all of our M-16s had a piece of metal between the grip and the lower receiver preventing our rifles from going into burst mode, but other than that they were still capable of burst. I have been to the range when someone who had this device broke off and fired a three round burst at their zeroing target and get tossed off the ranfe but that was about it.
We need more information. Was this at a range? Was it an ND?

 

[thexrayboy]

CHOICE OF WEAPONS
Drill instructor convicted after rifle jams
Guardsman guilt of illegally transferring 'machine gun' after firearm malfunctions
Posted: January 13, 2008
1:00 a.m. Eastern


© 2008 WorldNetDaily.com

A drill instructor in the National Guard has been convicted in a Wisconsin federal court of illegally transferring a machine gun after a rifle he loaned to a student malfunctioned, setting off three shots before jamming.

The verdict of guilty on one count in the case against David Olofson was confirmed yesterday by the clerk's office in the U.S. District Court for the Eastern District of Wisconsin.

That means now that anyone whose weapon malfunctions is subject to charges of having or handling a banned gun, according to an expert witness who reports that the particular problem is a well-known malfunction and was even the subject of a recall from the manufacturer.



"If your semiautomatic rifle breaks or malfunctions you are now subject to prosecution. That is now a sad FACT. I guess we know now what Sen. Kennedy meant when he said he looked forward to working with [Acting Bureau of Alcohol, Tobacco, Firearms and Explosives Director] Mike Sullivan on Gun control issues, after his committee approved him for full Senate vote," Len Savage, a weaponry expert who runs Historic Arms LLC, said in a blog.

"To those in the sporting culture who have derided 'black guns' and so-called 'assault weapons'; Your double barreled shotgun is now next up to be seized and you could possibly be prosecuted if the ATF can get it to 'fire more than once,'" he wrote in a blog run by Red's Trading Post.


Red Trading Post manager Ryan Horsley

"Hey, but don't worry," Savage said. "The people testing it have no procedures in writing and the testing will be in secret. Also if you know of information that proves YOUR innocence, maybe the ATF won't claim that it's tax information at your trial and prevent YOUR judge from viewing it."

He told an interview with Jews for the Preservation of Firearms Ownership that Olofson had been instructing a man in the use of guns, and the student asked to borrow a rifle for some shooting practice.

"Mr. Olofson was nice enough to accommodate him," Savage said. So the student, Robert Kiernicki, went to a range and fired about 120 rounds. "He went to put in another magazine and the rifle shot three times, then jammed," Savage said.

A couple of police officers who also were at the ranged immediately approached him and started asking questions about the "automatic" fire, and he told them it was a borrowed weapon.

"Mr. Olofson, being a responsible person, went down to the police station and said, 'I'm in the National Guard. I know what a machine gun looks like. That's not it,'" Savage said.

But instead of having the issues resolve, Savage said, it got worse.

He reported that because of the malfunction, the rifle was seized and sent to the Firearm Technology Branch, the testing arm of the federal agency.

"The examined and test fired the rifle; then declared it to be 'just a rifle,'" Savage said. "You would think it would all be resolved at this point, this was merely the beginning."

He said the Special Agent in Charge, Jody Keeku, asked for a re-test and specified that the tests use "soft primered commercial ammunition."

"FTB has no standardized testing procedures, in fact it has no written procedures at all for testing firearms," Savage said. "They had no standard to stick to, and gleefully tried again. The results this time...'a machinegun.' ATF with a self-admitted 50 percent error rate pursued an indictment and Mr. Olofson was charged with 'Unlawful transfer of a machinegun.'. Not possession, not even Robert Kiernicki was charged with possession (who actually possessed the rifle), though the ATF paid Mr. Kiernicki 'an undisclosed amount of money' to testify against Mr. Olofson at trial," Savage said.

And then during the trial, the prosecution told the judge it would not provide some information defense lawyers felt would clear their client, Savage continued. That included the fact that the rifle's manufacturer, Olympic Arms, had been issued a recall notice for that very model in 1986 over an issue of guns inadvertently slipping into full automatic mode, if certain parts were worn or if certain ammunition was used.

Ryan Horsley, who posts the Red's Trading Post blog, said the results were "very concerning."

"Basically if your Ruger 10/22, Browning Citori Over and Under or Remington 11-87 malfunction and fire more than one round at a time; the ATF will now consider it a machine gun," he wrote.

He told WND he's had personal experience with guns that malfunction and fire more than one bullet. Even double-barreled shotguns, if both shells would be released at once, now could be considered machine guns and illegal, he said.

"This precedent is very dangerous," he said.

Defense attorneys in the Olofson case couldn't be reached immediately to determine whether an appeal would be pursued, but Savage noted the arguments by assistant U.S. Attorney Greg Hannstad, who handled the prosecution.

"Haanstad claimed the law does not exempt a malfunction. He claims that it states 'any weapon that shoots more than once without manual reloading, per function of the trigger is a machinegun.' To clarify when I was on the stand, I asked him, 'Are you saying if I take my Great Granddaddy's double barrel out and I pull one trigger and both barrels go off, it's a machinegun?' He went back to … 'any weapon that shoots…'" Savage said.

On the Red's blog, commenters were incensed.

"'Innocent until proven guilty' has been transformed by the AFT into 'guilty until framed,' said LibertyPlease.

Horsley also told WND the 2008 edition of Firearms Law Deskbook quotes from a 1999 case in which the court concluded the law on automatic weapons "is not intended to trap the unwary innocent, and well intentioned citizen who possess an otherwise semi-automatic weapon that, by repeated use of the weapon, by the inevitable wear and tear of sporting activities, or by means of mere inattention, happenstance, or illfortune, fires more than semi-automatically."
___________________________________________________________________________________________________

The verdict of guilty on one count in the case against David Olofson was confirmed yesterday by the clerk's office in the U.S. District Court for the Eastern District of Wisconsin.


A lot of people will poo poo that this story is only carried by WorldNetDaily and therefore must not be true. A lot of people said the same thing when WorldNetDaily broke the story of the 11year old in CO. being taken by SWAT at gunpoint for medical treatment. The Rocky Mountain News carried the same story this weekend confirming the WND story. I suspect that this story will also be found true. Nothing is too evil, nefarious and wicked for the brownshirts that work at BATFEces. They are an agency that needs to be defunded immediately.

 

[Autolycus]

Wonderful. Got to love heavy handed bureacrats. We need to get rid of the ATF. Hopefully Ron Paul will get into office and slash their funding with an executive order.

 

[PvtPyle]

Keep looking for more facts about the case. This guy knew what was going on with the gun. Check the JPFO site and look at the affidavit.

 

[Gunnerpalace]

50% error rate, M16 parts, a "happy switch".

Now people come on I hate the 86' ban with a vengeance but the stupid law is the stupid law.

Don't break it unless you like jail.

 

[damien]

This is just an idiot trial court judge. There is no "precedent" from a trial court, despite the fact that this is implied above. When appealed, there will be a precedent and it could very easily go our way, if the facts are as stated in the article.

 

[Gingerbreadman]

Was the rifle in question originally able to fire fully automatic, or is it a case of semi-auto AR-15 going bad?

 

[JohnBT]

"Now if I'm to take what I'm being told and what I know and put them together, someone modified my gun, and he claims he diden't do it. I'm not going to say he did as I haven't seen it since ftroop got ahold of it, and he had it for many months. Only thing I know is although I have had to replace many parts on this particular gun as it is loaned out and shot a lot, all parts were for AR-15's, not 16's and all were factory. Paperwork they have givin me say it has been modified with the pin for the sear and some fileing done on the bolt. Not sure what that would be but more will come out in time."

From a post at AR15.com

Note the part "he had it for many months."

 

[TexasRifleman]

This is a much deeper story than it appears, and it's hard to tell who really did what.

The gun had several M16 fire control parts in it, both sides have accused the other of lying, it's a real train wreck.

There is a 40 something page thread over at arfcom with many posts from the guy this happened to. Court documents etc.

http://www.ar15.com/lite/topic.html?b=1&f=6&t=507483

 

[FieroCDSP]

If he was charged with transfering a machine gun, just because he let someone else shoot it (mechanical issues aside), does that mean if I own a legal MG, have the tax stamp and papers with me, and let a friend shoot it at the range while I'm two stalls over with his gun, then I am guilty of transferring an MG and can be tossed in jail?

 

[Bendutro]

It had an M-16 hammer and trigger. It did NOT have the full-auto sear or the provisions that would support a FA part. The gun only malfunctioned with soft-primered cartridges and functioned as normal for a semi-auto rifle with everything else.

After the first test, the BATFE test center returned the rifle and said that it was normal and legal. The testimony of a couple cops at the range who heard the rifle slam-fire when hot prompted the prosecuting attorney to send it back with instructions to make it malfunction to insure a conviction. The BATFE complied and the prosecution is not allowing the defense to challenge the testing procedure.

 

[TexasRifleman]

If he was charged with transfering a machine gun, just because he let someone else shoot it (mechanical issues aside), does that mean if I own a legal MG, have the tax stamp and papers with me, and let a friend shoot it at the range while I'm two stalls over with his gun, then I am guilty of transferring an MG and can be tossed in jail?

You are comparing apples and oranges. It would be more like you loaned your legal machine gun to me for 6 months and I carried it around with me everywhere and you were in another town. He loaned this gun out for months at a time.

And it did have M16 fire control parts in it. No it didn't have the extra hole drilled or the auto sear but geez guys, this is playing with fire.

Tech Branch has sent letters out for years and years warning against using any M16 parts. And though it shouldn't make an MG, they "coaxed" it into going full auto enough to get it on video. The bolt carrier is the only part I've ever seen Tech Branch say was OK, and even in that letter to Colt they warn against using M16 parts.

Then, with M16 parts in the gun and no denying that, it was easy to convince an ignorant jury that it was "intentional".

That's why we have to walk the straight line, being very careful. This case should not have resulted in a guilty verdict but it did.

It appears from the posts on arfcom that there are plenty of grounds for appeal so it's not over yet I guess.