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

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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.
 
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.
 
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”
 
Historic Arms LLC
Member



Join Date: 10-03-06
Posts: 32 Think about this....

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The US attorney stated:

"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 fires automatic. 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"

In short if ATF can methodically tamper with the evidence and get more that one shot you must find him guilty....

Doesn't even sound like America my friends, does it? Or should that be "comrades"?

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In the Michael Kwan or Quan case, another phony machinegun fiasco, where BATFE personnel ADMITTED tampering with physical evidence, the rifle in question, as I understand, the accused was acquitted. Possibly there is a lot yet to be heard on Olafson, where the governmnent, much to be hoped, will once again end up with egg on it's face.
 
I saw part 2 tonight. Lou Dobbs indicated he would have the NRA on his show and some Wisconsin representatives. This might get interesting. Also, Len Savage was on. Len is a great American hero of the Nth degree. He has been through the ringer with the ATF, and survived.
Len has a forum/threads at:

http://brenlmg.com/eve/forums/a/frm/f/7586076314
 
Again, I'm seeing jury instructions and prosecutorial assertions inconsistent with Staples. Has anyone commented on this? Why hasn't defense counsel gone ape**** over this?
 
I believe everyone is waiting for a hearing with the judge to find out what his take is on a number of motions filed by the defense in this case. Could go down a number of ways.

1. Boots the whole thing out for any number of reasons.

2. Says they are going to do it all over again properly given the shenanigans the government was involved in on the first trial.

3. Washes his hands of it, hands down a sentence, and waits to see what the appeals court says about what all went down.


At least that’s my take. Anyone see any other options?

Either way I’m pretty sure at the least this will end up at the trial level again whether the sitting judge says so or the appeals court. Too many things in this case don’t look right to let it stand.
 
I predict overturned on appeal, ATF quietly forgets to prosecute him a second time, he spends the next 30 years fighting to get his firearms back out of evidence and dig his way out of the legal costs.
 
Mainstream media breakthrough!

"Lou Dobbs Tonight" Show did a wonderful job.

The staff at his show really investigated. They have been researching documents, doing a diligent job at getting to core issues and ATF testing inconsistencies.

They took an afternoon to come to my shop and had me explain precisely why and show them on the real firearms. We also demonstrated them all on the range. Mr. Lou Dobbs and his staff took the time to find out what "hammer follow" was, What it does with proper ammunition, and why it's so blooming dangerous when it happens. They also took the time to learn about the real machine gun version of the AR, the M-16. His staff know what an auto sear is and what it does, and why "it" or the hole to put one in determines machine gun vs. semi.

I am very impressed with the collective effort to learn the entire story, even the boring technical stuff.

Len Savage
Historic Arms LLC

PS to Bubbles: Thank You, "B" Roll seems to be my thing:cool:
 
In reading a court opinion on Ken Ballew's lawsuit against ATF (the 1971 raid in Silver Springs MD), the prosecution argued that to prove illegal possession of destructive devices the components do not have to be assembled: the government has successful convicted people of possessing molotov cocktails by showing they had empty bottles, flammable fluid and cloth on their premises at the same time, even though they were not assembled into an actual molotov cocktail. Given that the New Zealand Charlton machinegun was based on converted Lee-Enfield bolt action rifles, a zealous prosecutor could charge someone owning a bolt action rifle with constructive possession of a machine gun. How hard would it be for ATF to convert a Lee-Enfield into a Charlton? You think they wouldn't go that far to get a conviction (or do you hope they wouldn't)?

The problem with gun control is that it attachs criminal penalties to mere possession of things, and not to any criminal acts or criminal intent. The owner of the AR15 believed he had a legal semi-auto rifle, had done no harm to any other person nor had any intent to do harm. The basic premise of gun control is wrong.
 
Please do not quote 1970s opinions regarding the elements of NFA violations. Start with Staples and work your way forward.

http://www.law.cornell.edu/supct/html/92-1441.ZO.html

We concur in the Fifth Circuit's conclusion on this point: "It is unthinkable to us that Congress intended to subject such law abiding, well intentioned citizens to a possible ten year term of imprisonment if . . . what they genuinely and reasonably believed was a conventional semiautomatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon."

This is the supreme court saying that you have to KNOW that the gun is a machine gun before you can be prosecuted for possessing it or transferring it.

I keep mentioning this and its relevance to this case and no one has given me a satisfactory answer yet.
 
At one time if you asked ATF what to do about a semi-auto that had broke and fired full auto, how did you register it etc., they would answer get it fixed and stop bothering us; or if you bought a Model 12 at police auction and it turned out to be 17 7/8ths instead of 18 inches and you asked, how do I register it as a SBS, they would answer have a gunsmith weld a Cutts Compensator to the end, and stop bothering us.

The case here sounds like a whimsical, arbitrary enforcement. And it seems to go against the Staples ruling (I read that years ago and must have a PDF on it on one of my archives.) Violation of NFA is criminal law and requires a showing of mens rea, if I recall correctly. Semi-auto ARs were often built using mil-surp M16 parts without intent to make a machinegun and with intent to make a legal semi-auto rifle.
 
Carl N. Brown wrote the fiollowing, mentioning the conversion of a bolt action rifle to a machinegun, which I once read something about:

Given that the New Zealand Charlton machinegun was based on converted Lee-Enfield bolt action rifles, a zealous prosecutor could charge someone owning a bolt action rifle with constructive possession of a machine gun. How hard would it be for ATF to convert a Lee-Enfield into a Charlton? You think they wouldn't go that far to get a conviction (or do you hope they wouldn't)?

If what I had read some years back was correct, John M. Browning, in the 1880's or 1890's took a lever action rifle, and modified it to fire full automatic. It's cyclic rate of fire was supposedly about 600 rounds/minute, and it worked..
 
Harold E. Staples v. UNITED STATES, No. 92-1441
Supreme Court of the United States,
Argued 30 Nov 1993 and Decided 23 May 1994.
(Cite as: 1994 WL 197017 (U.S.))

Staples owned an AR15 that a previous owner had tried to convert to
full-auto. The previous owner was caught with illegal weapons and ratted
Staples out. The ATF took the AR15 into their lab, successful repaired
the botched full-auto conversion, and charged Staples with NFA violation.

In amicus curiae, the NRA argued that the National Firearms Act of 1934,
aka "Gangster Weapon Act", was criminal law with criminal penalties and
therefore required mens rea knowledge and intent. Handgun Control
argued that the Gangster Weapon Act was just a regulatory measure and
people could be sent to Club Fed (Leavenworth) for ten years on an
otherwise innocent "regulatory" violation.

Unlike Miller 1939, heard by one justice with lawyers representing the
government and no one representing Miller, Staples 1994 was heard by
all Nine of SCOTUS with both sides represented in court.

Justice Thomas delivered the opinion of the Court, joined by Justices
Rehnquist, Scalia, Kennedy, and Souter. Justice Ginsburg filed an
opinion concurring in the judgment, joined by Justice O'Connor.

Justice Stevens filed a dissenting opinion, joined by Justice Blackmun.

dissent by Stevens and Blackmun
... given the text and nature of the statute, it would be utterly
implausible to suggest that Congress intended the owner of a sawed-off
shotgun to be criminally liable if he knew its barrel was 17.5 inches
long but not if he mistakenly believed the same gun had an 18-inch
barrel. Yet the Court's holding today assumes that Congress intended
that bizarre result. ...
So, in a case I have heard about, when ATF suggested to the innocent
purchaser of a prison-system surplus shotgun with a 17 7/8ths inch
barrel that they weld a Cutts Compensator to lengthen the barrel (or
just destroy the short barrel and buy a legal-length barrel), the ATF
was acting bizarrely and should have punished the purchaser
to the full extent of the law? Thank goodness Stevens and Blackmun were
the dissenting minority, but what kind of judges would a Hillary appoint
to the SCOTUS?
 

Attachments

  • STAPLES.PDF
    83.3 KB · Views: 5
Alan: John M. Browning, in the 1880's or 1890's took a lever action rifle, and modified it to fire full automatic.
That was the origin of Browning's gas operated semi and full automatic operating principle. Hiram Maxim worked out a spring-loaded buttplate and lever arrangement to convert lever action rifles to recoil-operated semi autos. Maxim's first recoil operated guns. Those were actually used in battle by the Turks against the Russians.

Of course, a deliberate modification like that is obvious; prosecution over a malfunction just sounds like malicious prosecution. Or mindless.
 
I don't think the ATF is the source of all this grief, hear me out, who told the ATF about this, the gun range, so does this mean that if my rifle doubles my shooting institution will rat me out for having a "scary machine gun". Something needs to be said about this aspect of the case.
 
I'd have to disagree. While it is true that as a whole gun owners tend to play favorites and politics with their rights, something that keeps us from presenting a united front, the ATF could have stopped this at any point. If they had something as simple as scientific testing procedures in writing, or better qualified SA's, this would have ended as fast as it started. The call about the shooting at the range to the local PD was merely the green light for the LEO's to check things out.

But this has become a great example of something that gun owners as a whole should help fix by presenting a united front. If we don't then any of us can be the next victim for any, or no reason whatsoever.
 
Carl N. Brown

Of course, a deliberate modification like that is obvious; prosecution over a malfunction just sounds like malicious prosecution. Or mindless.
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Carl:

Re your closing observation, "prosecution over a malfunction just sounds like malicious prosecition, Or mindless."

How about BOTH.
 
Gunnerpalace writes:

I don't think the ATF is the source of all this grief, hear me out, who told the ATF about this, the gun range, so does this mean that if my rifle doubles my shooting institution will rat me out for having a "scary machine gun". Something needs to be said about this aspect of the case.

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From what I've read of this case, the following is really interesting. BATFE had the rifle tested once with what sounded like military ball ammunition, whose primers tend to be on the hard side, this to prevent premature discharge (firing unlocked), which can be dangerous to the shooter. The rifle in question did not fire full auto.

BATFE arranged a second test, this time with soft primer ammunition, likely commercial loads. This time the rifle fired more than a single shot with one actuation of it's trigger. Obviously there was a functional problem with the rifle this known as a MALFUNCTION. BATFE, no matter that they might have heard from third parties, could have used some COMMON SENSE, and told Olofson to have the rifle fixed. BATFE doesn't operate on the basis of COMMON SENSE, their operating methods revolve about POWER and it's MISUSE, as might well be the case with the U.S. Attorney's office in that area.

For the law abiding gun owner, some 80,000,000 give or take a few, this presents a serious problem, one that will only grow worse, without significant and serious attention to poorly written law. Think our elected things might deserve a word of thanks re the "quality" of their work product, that being the federal statutes?

You see, third party comments, mentioned in the original post, while a factor in investigations, should never be the deciding factor. Common Sense should prevail, and it didn't, for the U.S. Attorney in that area and the BATFE were bound and determined to show Olofson and everyone else by the way, who is boss. Therein, by the way, lies the problem, and it's a serious problem, one that will only grow worse, left unattended.
 
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