GUEDES et al v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES et al

Filing 1

COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-5846088) filed by FIREARMS POLICY FOUNDATION, FIREARMS POLICY COALITION, INC., DAMIEN GUEDES, MADISON SOCIETY FOUNDATION, INC.. (Attachments: #1 Notice of Exhibits, #2 Exhibit A Part I, #3 Exhibit A Part II, #4 Corporate Disclosure Statement, #5 Civil Cover Sheet, #6 Summons, #7 Executed Final Rule)(Kraut, Adam)

Exhibit A

(Part 1, Pgs. 1 - 674)

Bureau of Alcohol, Tobacco, Firearms, and Explosives
___________________________________
Bump-Stock-Type Devices

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Docket No. ATF 2017R-22
RIN 1140-AA52

Firearms Policy Coalition and Firearms Policy Foundation’s
Comments in Opposition to Proposed Rule ATF 2017R-22

Joshua Prince, Esq.
Chief Counsel
Adam Kraut, Esq.
Attorney
Firearms Industry Consulting Group
a Division of Civil Rights Defense Firm, P.C.
646 Lenape Road
Bechtelsville, PA 19505
888-202-9297
www.FirearmsIndustryConsultingGroup.com

June 19, 2018

Exhibit A, Pg. 1

TABLE OF CONTENTS

I.

PROCEDURAL IRREGULARITIES HAVE DENIED INTERESTED
PERSONS A MEANINGFUL OPPORTUNITY TO COMMENT ON THE
PROPOSED RULEMAKING ...............................................................................................3
A. ATF Failed to Make Available the Underlying Determinations, Evidence and
Other Information Upon Which It Purportedly Relied in Formulating its
Proposed Rule ....................................................................................................................3
B. ATF Failed to Describe a Single Situation Illustrating the Problem it Purports to
Address; The Entire Rulemaking Seems to Rest on Multiple False Premises....................7
C. ATF Failed to Permit a Ninety-Day Comment Period and Procedural
Irregularities Have Denied Interested Persons a Meaningful Opportunity to
Comment on the Proposed Rulemaking ...........................................................................12
D. ATF’s Prior Lack of Candor Demonstrates a Heightened Need for Procedural
Regularity .........................................................................................................................17
1. ATF’s “Institutional Perjury” Before the Courts .......................................................18
2. ATF’s Deception in Congressional Oversight ...........................................................20
3. ATF’s Misleading of the Public .................................................................................20

II. ATF’S PROPOSED RULE RAISES IMPORTANT CONSTITUTIONAL
ISSUES ..................................................................................................................................21
A. The Second Amendment....................................................................................................22
B. The Fifth Amendment .......................................................................................................25
1. The Proposed Rulemaking Violates Due Process ......................................................25
i. ATF has Failed to Provide Notice and Opportunity to Response to All
Interested Parties ..................................................................................................25
ii. The Rulemaking Proposal Constitutes Entrapment Given ATF’s Prior
Approvals and Public’s Reliance Thereon ...........................................................26
2. The Proposal Constitutes a Taking Without Just Compensation ...............................27
i. The Fifth Amendment Precludes a Regulatory Taking ........................................27
ii. Cost-Impact Statement Fails to Address Just Compensation for the
Taking ...................................................................................................................30
C. The Ex Post Facto Clause ................................................................................................33
1. ATF’s Proposal Acknowledges that Bump-stocks are not Covered by the
Definition of a Machinegun and Retroactively Criminalizes Lawful Conduct ..........33
III. ATF’S PROPOSAL EXCEEDS ITS STATUTORY AUTHORITY ................................34
A. Congress Prohibited “Undue or Unnecessary” Restrictions ..........................................35
ii
Exhibit A, Pg. 2

B. Independent of FOPA, ATF Lacks Statutory Authority As the Congress Defined
What Constitutes a Machinegun.......................................................................................36
C. ATF is Statutorily Prohibited From Retroactively Applying the NPR .............................40
IV. ATF’S PROPOSAL IS ARBITRARY AND CAPRICIOUS .............................................41
A. ATF’s Interpretative Jiggery-Pokery is Pure Applesauce ...............................................42
B. Belt Loops, Rubber Bands and Fingers, OH MY! ............................................................42
C. The Jerry Miculek Example – He’s One Bad Mother… Shut Your Mouth (And:
Oh No! They Banned Jerry!) ............................................................................................44
D. Whoops, We Did it Again! ATF Misleads the Public Regarding the Use of
Bumpstock Devices in the Las Vegas Shooting ................................................................45
E. We Lied To You Once (Shame On Us). We Lied To You More Times Than We
Can Count (Shame On You For Having Your Eyes Wide Shut). The Continuing
Lies Espoused By ATF Regarding The Functionality Of Bump-Stock-Devices ...............47
F. The Akins Accelerator Difference ....................................................................................54
V. ATF’S PROPOSAL IS OVERLY VAGUE AND CONTRADICTORY..........................55
VI. ATF FAILED TO CONSIDER VIABLE AND PRECEDENTIAL
ALTERNATIVES.................................................................................................................57
A. FPC Supports “Alternative 1” .........................................................................................57
B. The Amnesty Alternative ...................................................................................................57
C. ATF’s Reclassification of the Streetsweeper and USAS 12 and Seven Year
Registration/Amnesty that Followed ................................................................................59
D. ATF’s Reclassification of Open Bolt Macs ......................................................................60
E. Revision of Proposed Changes to 27 C.F.R. §§ 447.11, 478.11, and 479.11 ..................61
VII. POLICY CONSIDERATIONS DO NOT SUPPORT ATF’S PROPOSED RULE ........63
A. ATF’s Assumptions Lack Statistical Validity ...................................................................63
B. ATF Relies On Multiple False Premises ..........................................................................65
CONCLUSION ..............................................................................................................................66

iii
Exhibit A, Pg. 3

Bureau of Alcohol, Tobacco, Firearms, and Explosives
___________________________________
Bump-Stock-Type Devices

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Docket No. ATF 2017R-22
RIN 1140-AA52

Firearms Policy Coalition and Firearms Policy Foundation’s
Comments in Opposition to Proposed Rule ATF 2017R-22
On March 29, 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”
or the “Agency”) published a Notice of Proposed Rulemaking (“NPR”) in the Federal Register at
Volume 83, pages 13442 through 13457, to institute this rulemaking proceeding with respect to
firearms regulated under the National Firearms Act (“NFA”), 26 U.S.C. §§ 5801-5872. ATF’s
current regulations under the NFA are codified at 27 C.F.R. Part 479.
Firearms Policy Coalition (FPC) is a grassroots, non-partisan, 501(c)(4) public benefit
organization. It is interested in this rulemaking because FPC’s mission is to protect and defend
the Constitution of the United States and the People’s rights, privileges and immunities deeply
rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and
individual right to keep and bear arms; to protect, defend, and advance the means and methods
by which the People of the United States may exercise those rights, including, but not limited to,
the acquisition, collection, transportation, exhibition, carry, care, use, and disposition of arms for
all lawful purposes, including, but not limited to, self-defense, hunting, and service in the
appropriate militia for the common defense of the Republic and the individual liberty of its
citizens; to foster and promote the shooting sports and all lawful uses of arms; and to foster and
promote awareness of, and public engagement in, all of the above and defend the Constitution of
1
Exhibit A, Pg. 4

the United States, especially the fundamental, individual Second Amendment right to keep and
bear arms. In response to the NPR, FPC offers this public comment for consideration with
respect to the proposed rule.
Firearms Policy Foundation (FPF) is a grassroots, non-partisan, 501(c)(3) public benefit
organization. It is interested in this rulemaking because FPF’s mission is to protect and defend
the Constitution of the United States and the People’s rights, privileges and immunities deeply
rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and
individual right to keep and bear arms; to protect, defend, and advance the means and methods
by which the People of the United States may exercise those rights, including, but not limited to,
the acquisition, collection, transportation, exhibition, carry, care, use, and disposition of arms for
all lawful purposes, including, but not limited to, self-defense, hunting, and service in the
appropriate militia for the common defense of the Republic and the individual liberty of its
citizens; to foster and promote the shooting sports and all lawful uses of arms; and to foster and
promote awareness of, and public engagement in, all of the above and defend the Constitution of
the United States, especially the fundamental, individual Second Amendment right to keep and
bear arms. In response to the NPR, FPF offers this public comment for consideration with
respect to the proposed rule.
FPC and FPF oppose the proposed rulemaking for the reasons set forth below and in the
Exhibits to this Comment incorporated herein by reference. For ease of reference and given that
FPC’s and FPF’s interests are aligned, the use of “FPC” throughout this Comment incorporates
or otherwise constitutes both FPC and FPF.

2
Exhibit A, Pg. 5

I.

PROCEDURAL IRREGULARITIES HAVE DENIED INTERESTED
PERSONS A MEANINGFUL OPPORTUNITY TO COMMENT ON THE
PROPOSED RULEMAKING
ATF has repeatedly violated the basic obligations designed to permit meaningful public

participation in this rulemaking proceeding. Despite efforts by FPC and other interested persons
to encourage compliance with the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 501-559,
other statutory provisions governing rulemaking, and fundamental due process, ATF has
persisted on a course that ensures a waste of time and resources by all involved. It should be
clear that ATF cannot proceed to promulgate a final rule without publishing a proper NPR and
providing the necessary opportunity for meaningful public comment.

A.

ATF Failed to Make Available the Underlying Determinations, Evidence
and Other Information Upon Which It Purportedly Relied in Formulating
its Proposed Rule

On March 30, 2018, the day after ATF published NPR in this matter, Firearms Industry
Consulting Group (“FICG”), on behalf of FPC, submitted an expedited FOIA Request “for all
ATF determinations relative to devices referred to as ‘bump stocks’ and ‘bump-fire stocks’ by
ATF in its proposed rulemaking (ATF 2017R-22, RIN 1140-AA52, Fed. Register No. 201806292 - https://www.regulations.gov/document?D=ATF-2018-0002-0001), as well as, all ATF
Form 9310.3A ‘Correspondence Approval and Clearance’ forms relative to each determination,
and any versions or drafts of the determinations, which were different than the final

3
Exhibit A, Pg. 6

determination” since ATF failed to include these, or any other “supporting documents,” in the
docket folder. 1 See Exhibit 1.

As of the filing of this Comment, not only has ATF declined to make public any of the requested
and necessary supporting documents – especially its own determinations that bump stocks and
bump-fire stocks do not constitute firearms, let alone machineguns 2 – but has additionally failed
to respond to FICG’s expedited FOIA or even assign a number to it. 3 Moreover, while
acknowledging that it has received “correspondence[s] from members of the United States
1

As reflected in the FOIA Request, “[t]he use of the word ‘determinations’ shall be understood
to mean any correspondence, whether in electronic or paper form, by ATF to any person, which
shall include any individual, Member of Congress, corporation, limited liability company, and
partnership, regarding the lawfulness or unlawfulness of any bump stock or bump-fire stock
device, whether a sample device was submitted or not to ATF.”
2
ATF admits that there are at least “ten letter rulings between 2008 and 2017” (83 Fed. Reg. at
13445); none of which have been made available by ATF. 83 Fed. Reg. at 13445.
3
FICG submitted its request on March 30, 2018. As is common practice for ATF, it has failed to
comply with 5 U.S.C. § 552(a)(6)(A)(i).
4
Exhibit A, Pg. 7

Senate and the United States House of Representatives, as well as nongovernmental
organizations, requesting that ATF examine its past classifications and determine whether bumpstock-type devices currently on the market constitute machineguns under the statutory
definition” (83 Fed. Reg. at 13446), ATF has failed to also provide these in the docket.
As a result, ATF still has not provided any of the documents underlying the NPR either
in the docket or in response to the FOIA request.
It has long been understood that “[t]he process of notice and comment rule-making is not
to be an empty charade. It is to be a process of reasoned decision-making. One particularly
important component of the reasoning process is the opportunity for interested parties to
participate in a meaningful way in the discussion and final formulation of rules.” Connecticut
Light & Power Co. v. NRC, 673 F.2d 525, 528 (D.C. Cir. 1982). “If the [NPR] fails to provide an
accurate picture of the reasoning that has led the agency to the proposed rule, interested parties
will not be able to comment meaningfully upon the agency’s proposals.” Id. at 530. Providing
access to materials like FPC requested – in addition to those that ATF has acknowledged in the
NPR as the basis for the rulemaking – has long been recognized as essential to a meaningful
opportunity to participate in the rulemaking process.
The APA “‘requires the agency to make available to the public, in a form that allows for
meaningful comment, the data the agency used to develop the proposed rule.’” American
Medical Ass’n, v. Reno, 57 F.3d 1129, 1132-33 (D.C. Cir. 1995) (quoting Engine Mfrs. Ass’n v.
EPA, 20 F.3d 1177, 1181 (D.C. Cir. 1994)). In order to ensure that rules are not promulgated on
the basis of data that to a “critical degree, is known only to the agency,” the agency must make
available the “methodology” of tests and surveys relied upon in the NPR. Portland Cement Ass’n
v. Ruckelshaus, 486 F.3d 375, 392-93 (D.C. Cir. 1973).

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Exhibit A, Pg. 8

An agency commits serious procedural error when it fails to reveal the basis for a proposed rule
in time to allow for meaningful commentary. Connecticut Power & Light, 673 F.2d at 530-31.
The notice and comment requirements
are designed (1) to ensure that agency regulations are tested via
exposure to diverse public comment, (2) to ensure fairness to
affected parties, and (3) to give affected parties an opportunity to
develop evidence in the record to support their objections to the
rule and thereby enhance the quality of judicial review.
International Union, United Mine Workers of America v. Mine Safety & Health Admin., 407 F.3d
1250, 1259 (D.C. Cir. 2005).
In this rulemaking proceeding, ATF not only refused to make available its own prior
determinations that “bump stocks”, “bump-fire stocks”, and “bump-stock-devices” were not
firearms, let alone, machineguns, and communications received from Congress and other
organizations, but more importantly, as discussed in Sections I., B., and IV., D., infra, ATF has
failed to provide any evidence that a “bump stock”, “bump-fire stock”, or a “bump-stock-device”
was ever utilized in a single crime. As the putative use of a bump stock in the Las Vegas
shooting is the purported underlying basis for this rulemaking (83 Fed. Reg. at 13443, 13444,
13446, 13447, 13452, 13454) the lack of evidentiary support is mind-boggling – especially in
light of legitimate national concerns involving the media and governmental agencies misleading
the public on a variety of issues – and constitutes a serious procedural error, as the absence of
such evidence supports that there are no verified instances of a bump stock being utilized
criminally and neither ATF nor FBI have confirmed the use of a bump-stock-device in any
crime. 4
4

An expedited Freedom of Information Act request was submitted to both ATF and FBI
requesting “Any and all records documenting the use of a bump-fire type stock being used by
anyone on or about October 1, 2017 at the Mandalay Bay shooting incident in Las Vegas,
(footnote continued)

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Exhibit A, Pg. 9

The lack of access to these materials has seriously hindered the ability of interested
persons to address everything that underlies the apparent unsupported assertions in the NPR.
Bringing forth any such material in support of a final rule will do nothing to remedy the fact that
those materials were not available to inform the interested persons preparing public comments. If
ATF intends to take any further action relative to this rulemaking, it needs first to lay the
foundation for a proposal and then expose that foundation to meaningful critique.

B.

ATF Failed to Describe a Single Situation Illustrating the Problem it
Purports to Address; The Entire Rulemaking Seems to Rest on Multiple
False Premises

In the docket, ATF failed to provide evidence of a single instance where a “bump stock”
or “bump-fire stock” was confirmed to be utilized in the commission of a crime. 5 Even more
disconcerting, in order to argue a putative benefit of this rulemaking, ATF relies on public
comments from an ANPR, stating:
“As reported by public comments, this proposed rule would affect the criminal
use of bump-stock-type devices in mass shootings, such as the Las Vegas
shooting incident… Banning bump-stock-type devices could reduce casualties in
an incident involving a weapon fitted with a bump-stock-type device, as well as
assist first responders when responding to incidents, because it prevents shooters
from using a device that allows them to shoot a semiautomatic firearm
automatically.”

(footnote continued)

Nevada; and Any and all records documenting the use of a bump-fire type stock used during the
commission of any crime to date.” To date, neither ATF nor FBI has confirmed the use of a
bumpfire stock in the commission of any crime. See “Analysis and Commentary Regarding:
Docket Number: ATF 2017R-22 & Bump-Stock-Type-Devices”, ID: ATF-2018-0002-31210,
Tracking Number: 1k2-93f3-s09b at 4 and 62 – 63, available electronically at –
https://www.regulations.gov/document?D=ATF-2018-0002-31210, in “Email 013 (Historic
Arms) rec 5-29-18 – Part4” as pdf pages 1 – 2.
5
Id.
7
Exhibit A, Pg. 10

83 Fed. Reg. 13454 (emphasis added). These purported benefits are equally illusory and
misleading. First, ATF presents no evidence that bump-stock-type devices have actually
ever been used in any mass shooting incidents. 6 As further discussed infra in Section IV.,
D., even in relation to the Las Vegas incident upon which the NPR relies (83 Fed. Reg. at
13443, 13444, 13446, 13447, 13452, 13454), the Las Vegas Metropolitan Police
Department Preliminary Investigative Report only indicates that some weapons were
outfitted with bump-stock-type devices but provides no indication that any bump-stockdevice was utilized. See, Exhibit 2. 7 Second, ATF contends that casualties could be
reduced in such an incident without demonstrating that there have been any casualties
attributable to the devices. 8 ATF has also failed to address the fact, as discussed in
Sections IV., B. and C., that not only is a bump-stock unnecessary to bump-fire a firearm
but that practiced shooters can match, if not exceed, the speed of a bump fire device, with
far superior accuracy, unassisted by such a device. See, Exhibits 3 and 4. 9 Moreover, as
stated by former ATF Acting Chief of FTB Rick Vasquez, “[a] factory semi-automatic
6

Interestingly, ATF relies solely on prior “public comments” to suggest that a bump stock device
was utilized in Las Vegas (83 Fed. Reg. 13454), while thereafter declaring that bump stock
devices “could be used for criminal purposes.” (83 Fed. Reg. 13455)(emphasis added). The use
of the word “could” reflects that such use is a possible future, not past, occurrence. Thus, ATF is
acknowledging that but for public conjecture, it has no evidence that a bump stock device has
been utilized in a crime and only hypothesizes that a bump stock device “could be used for
criminal purposes.” See also Fn. 4, supra.
7
A copy of the report is also available online at – https://www.lvmpd.com/enus/Documents/1_October_FIT_Report_01-18-2018_Footnoted.pdf.
8
Relying on nothing more than a “conclusory statement would violate principles of reasoned
decisionmaking.” Foundation on Economic Trends v. Heckler, 756 F.2d 143, 154 (D.C. Cir.
1985); see also Pearson v. Shalala, 164 F.3d 650, 659 (D.C. Cir. 1999).
9
Copies of the videos are also available online – Iraqveteran8888, Worlds Fastest Shooter vs
Bump Fire! – Guns Reviews, YouTube (Oct. 13, 2014),
https://www.youtube.com/watch?v=JTb6hsSkV1w and Miculek.com, AR-15 5 shots in 1 second
with fastest shooter ever, Jerry Miculek (Shoot Fast!), YouTube (June 20, 2013)
https://www.youtube.com/watch?v=v3gf_5MR4tE&t.
8
Exhibit A, Pg. 11

and fully-automatic (i.e. machinegun) firearm, manufactured by the same manufacturer,
will have identical cyclic rates, 10 unless the machinegun version has some form of rate
reducing mechanism; whereby, the machinegun version may have a slower cyclic rate
than the semi-automatic version.” See Exhibit 32. 11 Thus, not only can an individual
exceed the rate of fire of a bump-stock-device with greater accuracy, but an individual
can equal, and sometime exceed, the rate of fire of an actual machinegun.
Third, as also addressed by the Savage Comment 12 and the Expert Declaration of
Vasquez (see Exhibit 32), the technique of bump firing merely utilizes the recoil impulse
that all semi-automatic firearms generate, every time the firearm discharges. More
importantly, as discussed by the Expert Declaration of Vasquez and the Savage
Comment, and reflected infra in Sections IV., A. and E., including as depicted in video
exhibits related thereto, contrary to ATF’s interpretive jiggery-pokery in the NPR that
10

As expert Vasquez explains, “[t]he cyclic rate of a firearm is neither increased nor decreased
by the use of a bump-stock-device, as the cyclic rate of a particular firearm is the mechanical rate
of fire, which can be explained in laymen’s terms as how fast the firearm cycles (i.e. loads, locks,
fires, unlocks, ejects), which is an objective, not subjective, mechanical standard.” See Exhibit
32.
11
This was also addressed by Firearm Engineer Len Savage on page 2 of his Comment,
where he declares that all semi-automatic firearms:
“can fire as fast as a machinegun version. Their cyclic rates are identical to the
machinegun version. Their essential operating mechanisms are identical, same ammo,
same mag[azines], same reciprocating mass. The only small physical difference is the
machineguns described have a mechanical level that ‘automatically’ starts the new cycle
as soon as the previously cycle ends. Some semiautomatic firearms can even fire faster
than the full auto version because the machinegun versions having some form of rate
reducing mechanism.”
See Analysis and Commentary Regarding: Docket Number: ATF 2017R-22 & Bump-StockType-Devices, ID: ATF-2018-0002-31210, Tracking Number: 1k2-93f3-s09b, available
electronically at – https://www.regulations.gov/document?D=ATF-2018-0002-31210, in “Email
013 (Historic Arms) rec 5-29-18”.
12
Id.
9
Exhibit A, Pg. 12

bump-stock devices “convert an otherwise semiautomatic firearm into a machinegun by
functioning as a self-acting or self-regulating mechanism” (83 Fed. Reg. 13443), in
reality, a bump-stock-device is neither self-acting nor self-regulating and requires the
trigger to be fully released, reset and fully pulled, before a subsequent round can be fired.
13

To the extent ATF contends otherwise, then all semi-automatic firearms are “self-

acting” or “self-regulating,” since, as discussed infra in Section IV., B., the technique of
bump firing can be easily achieved solely with one’s finger while operating a factory
semi-automatic firearm.
Thus, to the extent ATF contends that bump-stock-devices are self-acting, selfregulating or otherwise harness the recoil energy of the firearm, then all semi-automatic
firearms are self-acting, self-regulating or otherwise harness the recoil energy of the
firearm. Under the logic and contentions employed in the NPR, ATF would seemingly be
entitled and empowered to regulate all semi-automatic firearms in the same manner as
they seek to do for bump-stock devices, whereby all semi-automatic firearms could be reclassified by fiat, transmuted into unlawfully-possessed and proscribed contraband items,
and, accordingly, force forfeiture (and provide for seizure) and destruction of these items,
13

As also addressed in the Expert Declaration of Vasquez:
The bump-stock-device does not permit automatic fire by harnessing the recoil energy of
the firearm. Harnessing the energy would require the addition of a device such as a spring
or hydraulics that could automatically absorb the recoil and use this energy to activate
itself. If it did harness the recoil energy, the bump-stock equipped firearm in the video
would have continued to fire, while the shooter’s finger remained on the trigger, after
pulling it rearwards without requiring the shooter to release and reset the trigger and then
pull the trigger completely reward for a subsequent round to be fired.
…
A firearm in a bumpstock/slidefire stock cannot be a machinegun because it requires an
individual to activate the forward motion of the stock when the firearm is fired.
Additionally, it requires a thought process of the individual to continually pull the trigger
when the stock is pulled forward bringing the trigger into contact with the finger.
10
Exhibit A, Pg. 13

without any just compensation being paid—never-mind the statutes, let alone the
Constitution. 14
In fact, Eric Larson clairvoyantly published an article in March of 1998 in the
Gun Journal, entitled How Firearm Registration Abuse & the “Essential Operational
Mechanism” of Guns May Adversely Affect Gun Collectors, in which he raised concern
over ATF banning all semi-automatic firearms through these types of “interpretations” of
law. See Exhibit 24.
Fourth, ATF suggests that this rule will assist first responders by preventing
shooters from using the devices; however, ATF does not elaborate on how exactly a
firearm outfitted with a bump-stock-type device impedes first responders in any way that
a differently configured firearm does not.
Finally, ATF laughably suggests that it is addressing a negative externality of the
commercial sale of bump-stock-type devices. This negative externality is “that they could
be used for criminal purposes.” 83 Fed. Reg. at 13449. This suggestion is not supported
by any evidence aside from the unproven allegation of their use in the Las Vegas
14

If “the eight-year assault on . . . Second Amendment freedoms [came] to a crashing end” with
President Trump’s election and inauguration, then a new assault on individual liberties and
lawfully acquired and possessed private property apparently came to a crushing beginning in this
NPR. See, Trump at NRA convention: 'Eight-year assault' on gun rights is over, Fox News, April
28, 2018, online at http://www.foxnews.com/politics/2017/04/28/trump-at-nra-convention-eightyear-assault-on-gun-rights-is-over.html. But the “President then directed the Department of
Justice . . . to dedicate all available resources to complete the review of the comments received
[in response to the ANPRM], and, as expeditiously as possible, to propose for notice and
comment a rule banning all” bump-stock devices. Federal Register / Vol. 83, No. 61 at 13446
(NPR Section III). Indeed, it is difficult to reconcile President Trump’s statement that “[he] will
never, ever infringe on the rights of the people to keep and bear arms,” Trump at NRA
convention, supra, with the NPR. As the NPR admits, it a direct result of his personal directive
to lawlessly seek an unlawful total, confiscatory ban on bump-stock devices (and criminalize the
law-abiding people who possess them) in spite of the Executive Branch’s lack of legal and
constitutional authority to do so.
11
Exhibit A, Pg. 14

incident. Further, any suggestion that a device responsible for substantial, and lawful,
market activity should be banned because it has a potential to be used for criminal
purposes is a mind-blowing and preposterous proposition that supports the banning of
virtually all consumer products, such as vehicles (given the number of individuals who
utilize them while unlawfully under the influence of drugs or alcohol and cause
significant numbers of injuries and deaths 15, and those who use them to carry out
terrorist attacks). 16
If the sole example ATF has to offer is the conjectured use of a bump-stock-equipped
firearm during the Law Vegas shooting, there is simply no evidence of any problem that existing
criminal law does not address, let alone a statistically-significant one. Murder is already
unlawful, right? And if serious criminal laws have no meaningful deterrent effect, what then is
the objective of this NPR, if not to subject law-abiding people who did not commit any crime to
pain of criminal penalty and loss of their property?

C.

ATF Failed to Permit a Ninety-Day Comment Period and Procedural
Irregularities Have Denied Interested Persons a Meaningful Opportunity to
Comment on the Proposed Rulemaking

18 U.S.C. § 926(b) requires that ATF provide “not less than ninety days public notice,

15

“Every day, 29 people in the United States die in motor vehicle crashes that involve an
alcohol-impaired driver. This is one death every 50 minutes. The annual cost of alcohol-related
crashes totals more than $44 billion.” See, e.g., “Impaired Driving: Get the Facts” (citing
sources, internal footnotes omitted), Centers for Disease Control and Prevention, online at
https://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html.
16
See, https://www.usatoday.com/story/news/2016/07/14/dozens-dead-nice-france-after-truckplows-into-crowd-mayor-says/87101850. See also, http://abcnews.go.com/International/truckhits-pedestrians-busy-barcelona-street/story?id=49272618.
12
Exhibit A, Pg. 15

and shall afford interested parties opportunity for hearing, before prescribing such rules and
regulations.”
First and foremost, FPC demands, pursuant to Section 926(b) and ATF’s offer in the
NPR (83 Fed. Reg. 13456), 17 that they be provided an opportunity to be heard at a hearing
before ATF prescribes any rule or regulation in relation to this NPR. 18
In this rulemaking proceeding, numerous procedural irregularities and issues have arisen
that have precluded the public a meaningful opportunity to respond and have caused some to
believe that the comment period was closed, since the very start of the comment period; thus,
depriving the public of the ninety day comment period that is required by law.
Immediately, upon the publication of the NPR on March 29, 2018, numerous individuals
were advised on FederalRegister.gov 19 “COMMENT PERIOD CLOSED – The comment period
on this document is closed and comments are no longer being accepted on Regulations.gov. We
apologize for any inconvenience.”

17

Contrary to ATF’s assertion in the NPR that the Director of ATF has discretion in whether to
grant a public hearing, Section 926(b) requires ATF to hold a public hearing when such is
requested, as the statutory language provides that the Attorney General “shall afford interested
parties opportunity for hearing, before prescribing such rules and regulations.” (Emphasis
added). If it were discretionary, the Congress would have utilized a permissive word like “may”
instead of the command “shall”.
18
Although requesting a hearing in a comment is sufficient, based on the request in the NPR, a
separate letter was sent to Acting Director Brandon on behalf of FPC requesting an opportunity
to be heard at a hearing. See Exhibit 34.
19
The specific link is https://www.federalregister.gov/documents/2018/03/29/2018-06292/bumpstock-type-devices
13
Exhibit A, Pg. 16

As is reflected in the above image, taken from the subject Web site, the notice that the comment
period was closed was in relation to this proposed rulemaking regarding Bump-Stock-Type
devices of “03/29/2018” and also reflects that the comment period was not supposed to end until
“06/27/2018”; however, individuals were denied the opportunity to comment.
Even when individuals reached out online to the Federal Register regarding their inability
to submit comments, the Federal Register responded by saying that it isn’t its problem 20:

20

It would seem that, at a minimum, the Federal Register’s Web site and social media accounts
are managed by the same parties responsible for the www.healthcare.gov debacle that precluded
individuals from being able to register for Obamacare, which led the Inspector General of the
Department of Health and Human Services to issue a scathing report over the incompetence of
those responsible. See http://www.mcall.com/news/local/watchdog/mc-obamacare-websitefailure-watchdog-20160224-column.html.
14
Exhibit A, Pg. 17

But the procedural irregularities and issues didn’t end there. On April 2, 2018, Carl
Bussjaeger published an article, which was later updated, [Update] Bumbling Machinations on
Bump Stocks? See, Exhibit 5. 21 In his article, he details the trials and tribulations of trying to
find the appropriate docket, based on the NPR in this matter, and the differing number of
comments putatively submitted and available for review between three separate dockets. When
he submitted an inquiry to ATF regarding these issues, without explaining why there are three
separate related dockets, ATF Senior Industry Operations Investigator Katrina Moore responded
that he should use https://www.regulations.gov/document?D=ATF-2018-0002-0001; yet, ATF

21

A copy of the article is also available online at – http://zelmanpartisans.com/?p=5071. See
also, http://zelmanpartisans.com/?p=5055.
15
Exhibit A, Pg. 18

failed to relay that information to the public at large or place notices on the other two related
dockets informing interested individuals of the location where they can submit their comments.
When other federal administrative agencies have failed to provide a statutorily mandated
comment period or issues arose during the comment period, whereby the comment period was
thwarted by technological or other delays, those agencies have extended the applicable comment
periods. See, e.g., Department of the Interior -- Fish & Wildlife Service, Endangered and
Threatened Wildlife and Plants; Extending the Public Comment Periods and Rescheduling
Public Hearings Pertaining to the Gray Wolf (Canis lupus) and the Mexican Wolf (Canis lupus
baileyi), 78 Fed. Reg. 64192 (Oct. 28, 2013); Environmental Protection Agency, Extension of
Review Periods Under the Toxic Substances Control Act; Certain Chemicals and
Microorganisms; Premanufacture, Significant New Use, and Exemption Notices, Delay in
Processing Due to Lack of Authorized Funding, 78 Fed. Reg. 64210 (Oct. 28, 2013); Department
of the Interior -- Fish & Wildlife Service, New Deadlines for Public Comment on Draft
Environmental Documents, 78 Fed. Reg. 64970 (Oct. 30, 2013); Department of Labor -Occupational Safety and Health Administration, Occupational Exposure to Crystalline Silica;
Extension of Comment Period; Extension of Period to Submit Notices of Intention to Appear at
Public Hearings; Scheduling of Public Hearings, 78 Fed. Reg. 35242 (Oct. 31, 2013);
Department of Agriculture -- Food and Nutrition Service, Supplemental Nutrition Assistance
Program: Trafficking Controls and Fraud Investigations; Extension of Comment Period, 78 Fed.
Reg. 65515 (Nov. 1, 2013); Federal Communications Commission, Revised Filing Deadlines
Following Resumption of Normal Commission Operations, 78 Fed. Reg. 65601 (Nov. 1, 2013);
Federal Trade Commission, Ganley Ford West, Inc.; Timonium Chrysler, Inc.; TRENDnet, Inc.;
Pinnacle Entertainment, Inc.; Honeywell International, Inc.; Nielsen Holdings, Inc., et al.;

16
Exhibit A, Pg. 19

Polypore International, Inc.; Mylan, Inc., et al.; Actavis, Inc., et al.; Agency Information
Collection Activities (Consumer Product Warranty Rule, Regulation O, Affiliate Marketing
Rule), 78 Fed. Reg. 65649 (Nov. 1, 2013); Federal Communications Commission, Revised Filing
Deadlines Following Resumption of Normal Commission Operations,78 Fed. Reg. 66002 (Nov.
4, 2013). In this rulemaking proceeding, by refusing to extend the comment period and failing to
notify interested parties of the correct docket for filing comments, ATF failed to mitigate the
harm caused by these procedural irregularities and issues that were resultant from ATF’s own
conduct and actions. Thus, ATF has failed to provide the statutorily-mandated public comment
period and caused public confusion as to whether or not the comment period was open or closed
and the appropriate docket for the filing of comments. More disconcerting is that this is not the
first time that ATF has acted in this manner during the rulemaking process. 22

D.

ATF’s Prior Lack of Candor Demonstrates a Heightened Need for
Procedural Regularity

The litany of procedural irregularities in this proceeding would undermine the efforts of
an agency with a sterling reputation for fairness and candor. ATF has a well-documented record
of “spinning” facts and engaging in outright deception of the courts, Congress, and the public.
Many of the examples of such conduct arise precisely in the area of regulation of NFA firearms

22

See, Firearms Industry Consulting Group’s comment in response to ATF-41P, RIN: 1140AA43, available at https://www.regulations.gov/document?D=ATF-2013-0001-8364, wherein it
documents in Section I the numerous procedural irregularities and issues that denied interested
persons a meaningful opportunity to comment on the proposed rulemaking. For brevity, FPC
incorporates into this Comment all exhibits attached to the Comment of Firearms Industry
Consulting Group in the response to ATF-41P. All of Firearms Industry Consulting Group’s
exhibits in response to ATF-41P are available at
https://www.regulations.gov/document?D=ATF-2013-0001-8364.
17
Exhibit A, Pg. 20

as detailed in the Motion in Limine filed in United States v. Friesen, CR-08-041-L (W.D. Okla.
Mar. 19, 2009). See Exhibit 6. In light of that record, there is an even greater need for ATF to
provide the underlying documents that would permit scrutiny of whether it has fairly
characterized issues in the NPR, engaged in a fair consideration of alternatives, only
inadvertently provided misleading information about its proposed rule in relation to the Las
Vegas incident and operation of bump-stock-devices, omitted pertinent documents – especially
its own determinations that bumpstocks were not even firearms, let alone, machineguns – from
the docket only through an oversight, and only accidentally failed to provide a 90-day comment
period.
1.

ATF’s “Institutional Perjury” Before the Courts

ATF’s NFA Branch Chief, Thomas Busey, advised ATF employees in the course of a
training program that the National Firearms Registration and Transfer Record (“NFRTR”)
database had an error rate “between 49 and 50 percent” in 1994. Exhibit 6, p. 14. Yet, despite
acknowledging such a high error rate, he observed that “when we testify in court, we testify that
the database is 100 percent accurate. That's what we testify to, and we will always testify to
that.” Id. Judges have overturned their own imposition of criminal convictions upon learning of
this information, see, e.g., id., pp. 16-17, information that should have routinely been provided to
defense counsel in advance of trial as Brady material. 23 See also id., p. 6. It is difficult to
imagine a more powerful admission that an agency had knowingly, repeatedly misled courts.
This blatant “institutional perjury” took place not only in the context of criminal
prosecutions but also in support of numerous probable cause showings for search warrants.
23

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court required that government
investigators and prosecutors provide criminal defendants with potentially exculpatory
information.
18
Exhibit A, Pg. 21

Indeed, NFA Branch Chief Busey expressly addressed that situation. Despite acknowledging an
NFRTR error rate of 49 to 50 percent, he told his ATF audience “we know you're basing your
warrants on it, you’re basing your entries on it, and you certainly don’t want a Form 4 waved in
your face when you go in there to show that the guy does have a legally-registered [NFA
firearm]. I’ve heard that happen.” Id., p. 15.
Using data obtained from ATF in response to FOIA requests, Eric M. Larson
demonstrated that ATF apparently had added registrations to the NFRTR years after the fact,
reflecting the correction of errors apparently never counted as errors. Id., pp. 21-28. While
reassuring courts as to the accuracy of the NFRTR, at the same time ATF seemed to be adding
missing information to the database when confronted with approved forms that had not been
recorded in the database. Id., pp. 26-28. As a result of the questions raised by Mr. Larson, both
ATF and the Treasury Department Inspector General conducted investigations. Id., pp. 29-31.
In the course of the resulting investigations, ATF’s Gary Schaible recanted sworn
testimony he had given years earlier in a criminal prosecution. Id., pp. 30-33. The Inspector
General’s October 1998 report rejected Mr. Schaible's effort to explain away his prior sworn
testimony, concluding: “National Firearms Act (NFA) documents had been destroyed about 10
years ago by contract employees. We could not obtain an accurate estimate as to the types and
number of records destroyed.” Id., pp. 32-33. It is difficult to understand how ATF could
routinely provide Certificates of Nonexistence of a Record (“CNRs”) to courts without
disclosing that an unknown number of records were destroyed rather than processed for the
NFRTR. 24

24

In Friesen itself, the prosecution introduced duplicate ATF records of the approved transfer of
a NFA firearm (bearing the identical serial number), but differing in the date of approval.
(footnote continued)

19
Exhibit A, Pg. 22

2.

ATF’s Deception in Congressional Oversight

In response to a Congressional inquiry, a DOJ Inspector General advised that a request
for documents that reflected errors in the NFRTR had been “fully processed” when, in fact, the
documents had merely been sent to another component – ATF itself – so as to delay disclosure.
See Exhibit 6, pp. 12-14. Moreover, ATF changed the meaning of terms like “significant” errors
thereby frustrating any attempt to ascertain the true error rate. See id., p. 19. So too, when a
congressionally-mandated audit found a “critical error” rate in the NFRTR of 18.4%, the
Treasury Department Inspector General seemingly manipulated audit procedures at the
instigation of the NFA Branch so as to produce a more acceptable figure. Id., pp. 35-39.
Congress remained sufficiently concerned about inaccuracies in the NFRTR to
appropriate $1 million (in Fiscal Years 2002 and 2003) for ATF to address remaining issues. Id.,
p. 39. In 2007, however, Dr. Fritz Scheuren advised Congress that “serious material errors”
continued to plague the NFRTR that ATF “has yet to acknowledge”. Id., p. 41.
As recently as June 2012, failure to answer questions about ATF's botched “Fast and
Furious” gun-walking operation prompted the House of Representatives to find Attorney General
Holder in both civil and criminal contempt. See Exhibit 7.

3.

ATF’s Misleading of the Public

When, after a prolonged period of evasion, ATF finally produced a transcript of NFA
Branch Chief Busey’s remarks in the training session in response to FOIA requests, the transcript
had been “corrected” by ATF’s Gary Schaible to minimize damage to ATF. See Exhibit 6, p. 17.
(footnote continued)

Exhibit 6, pp. 48-49. ATF could not explain the situation. Id., p. 49. Nor could ATF find the
original documents underlying the computerized entries. Id., p. 52.
20
Exhibit A, Pg. 23

Among those corrections, Mr. Schaible asserted that he was unaware that any ATF employee had
ever testified that the NFRTR was 100% accurate.
In order to frustrate public inquiries into the Waco Raid, ATF participated in a game of
“shifting the paperwork and related responsibilities” among DOJ components and other law
enforcement agencies. Id., pp. 13-14.
Former Acting Chief of the NFA Branch, Mr. Schaible, testified that ATF repeatedly – in
2000, 2001, 2002, 2003, 2005, 2008 – approved NFA transfer forms without following
procedures to update the information in the NFRTR. See Exhibit 8, pp. 398-414. The
consequence of those failures was that members of the public received contraband machineguns
accompanied by genuine ATF-approved forms indicating that the purchaser had acquired a
legally-registered firearm, only to have ATF subsequently seize the machineguns from innocent
purchasers.
*

*

*

ATF’s long record of shading the truth to mislead courts, Congress, and the public,
underscores the serious nature of the procedural irregularities in this rulemaking. In order to
permit meaningful public participation, ATF must provide access to the materials it has placed in
issue.

II.

ATF’S PROPOSED RULE RAISES IMPORTANT CONSTITUTIONAL
ISSUES
Because judicial review of any final rule promulgated by ATF may consider not only

compliance with the APA but also all alleged violations of the U.S. Constitution, see, e.g., Porter
v. Califano, 592 F.2d 770, 780 (5th Cir. 1979), it is incumbent upon ATF to take such
21
Exhibit A, Pg. 24

considerations into account in this rulemaking proceeding. 25 Where, as here, agency rulemaking
would inherently impact constitutional rights, that impact is among the matters the APA requires
the agency to consider in evaluating regulatory alternatives and to address in a reasoned
explanation for its decision. See R.J. Reynolds Tobacco Co. v. FDA, 696 F.2d 1205 (D.C. Cir.
2012); Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999).

A.

The Second Amendment

Nowhere in the NPR did ATF demonstrate the slightest awareness that it is proposing to
regulate in an area involving fundamental constitutional rights. Congress has not amended the
NFA since the U.S. Supreme Court confirmed that “the Second Amendment conferred an
individual right to keep and bear arms.” District of Columbia v. Heller, 554 U.S. 570, 595
(2008). Consequently, it would seem exceptionally important for ATF to consider the
background constitutional issues in formulating policy, particularly as ATF’s proposed rule
would outright ban bump-stock devices, thereby burdening the exercise of this constitutional
right held by law-abiding citizens. Where fundamental, individual constitutional rights are at
issue, an agency engaged in rulemaking cannot rely on a conclusory assertion in order to
“supplant its burden to demonstrate that the harms it recites are real and that its restriction will in
fact alleviate them to a material degree.” Ibanez v. Florida Dep't of Business & Professional
Regulation, 512 U.S. 136, 146 (1994). Yet, in direct defiance of this Supreme Court dictate, as
discussed supra and infra in Sections I., B. and IV., D., ATF has failed to provide any evidence

25

Agency determinations with respect to constitutional issues, however, are not entitled to any
deference on judicial review. See J.J. Cassone Bakery, Inc. v. NLRB, 554 F.3d 1041, 1044 (D.C.
Cir. 2009) (quoting Lead Indus. Ass'n Inc. v. EPA, 647 F.2d 1130, 1173-74 (D.C. Cir. 1980)).
22
Exhibit A, Pg. 25

that (1) bump-stock devices have actually ever been used in the facilitation of a crime, 26 (2) that
casualties could be reduced in an incident involving a bump stock, since there is no evidence
demonstrating that there have been any causalities attributable to bump-stock devices, (3) that
this rule will assist first responders, and (4) that “they could be used for criminal purposes” any
differently than any other item that is currently available throughout the United States. Rather,
ATF relies solely on the conclusory assertions of public comments to an Advanced Notice of
Proposed Rulemaking to determine the benefits of the very rulemaking it is considering. In
soliciting potential benefits from the public and suggesting them without evidence, ATF has run
afoul of the words of wisdom contained in another decision issued by the Supreme Court stating
that “[w]e are in danger of forgetting that a strong public desire to improve the public condition
is not enough to warrant achieving the desire by a shorter cut than the constitutional way of
paying for the change.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).
While ATF claims that this rule is necessary to carry out the will of Congress, as discussed infra
in Section III., ATF lacks the authority to alter the definition of a machinegun as it was enacted
by the Congress. Even Senator (and ranking member of the Senate Judiciary Committee) Diane
Feinstein, the lead sponsor of the now-expired federal ban on so-called “assault weapons” and
author or sponsor of voluminous other proposed gun control legislation, declared that “ATF
lacks authority under the law to ban bump-fire stocks. Period.” See, Exhibit 9.

26

See Fns. 4, 6, supra.
23
Exhibit A, Pg. 26

Even a broken clock is right twice a day, and, similarly, Senator Feinstein is correct in her
assessment of the ATF’s lack of authority for its bump-stock NPR.
Furthermore, as discussed supra in Section I., A., ATF only states that it received
correspondence from an undisclosed number of members and failed to place that/those
correspondence(s) into the docket. The will of Congress cannot simply be derived from the
writings of a small number of Senators or Representatives – especially writings outside of the
legislative record – nor has it been in the past. 27
While it is impossible to know for certain, given the NPR’s dearth of analysis and
discussion of the Second Amendment, it may well be that the ATF, without stating so, believes
that the NPR does not violate the fundamental, individual right to keep and bear arms by
considering bump-stock devices to be both “dangerous and unusual weapons” and “not
commonly possessed by law-abiding citizens for lawful purposes today.” Caetano v.
Massachusetts, 136 S. Ct. 1027, 1031-1032 (2016). But as the Court recently reminded in
27

See Exhibit 10, pp. 4 – 5, also available at
https://perlmutter.house.gov/uploadedfiles/atf_response_04.16.13.pdf

24
Exhibit A, Pg. 27

Caetano, the controlling rule set forth in Heller “is a conjunctive test: A weapon may not be
banned unless it is both dangerous and unusual.” Id., at 1031 (emphasis in original). However,
ATF does not discuss these factors, and instead walks right past the necessary analysis (and the
Court’s clear direction). The NPR fails to show that a bump-stock device is both “dangerous and
unusual,” or even that it would materially affect the dangerousness of any firearm so equipped,
which are already dangerous per se. The ATF’s proposed total ban self-evidently lacks necessary
tailoring – indeed, its lack of tailoring underscores its overwhelming breadth – and amounts to
the total destruction of the right of law-abiding people to keep and bear the affected items for
self-defense and other lawful purposes.

B.

The Fifth Amendment

ATF’s proposed rule violates the Due Process and Takings clauses of the Fifth
Amendment to the U.S. Constitution by failing to provide notice to affected parties of a
compelled forfeiture or destruction, entrapping otherwise law-abiding citizens, and failing to
provide just compensation for the property in question.
1.

The Proposed Rulemaking Violates Due Process
i.

ATF has Failed to Provide Notice and Opportunity to Response to All
Interested Parties

Although, as discussed supra in Section I., A., ATF has failed to place into the docket
any of its prior ten determinations between 2008 and 2017 that bump-stock-devices do not even

25
Exhibit A, Pg. 28

constitute firearms, let alone, machineguns (83 Fed. Reg. at 13445), 28 it is admitted by ATF that
it publicly approved of the bump-stock-type devices, which, per ATF (83 Fed. Reg. at 13451), is
believed to have resulted in over half a million bump-stock-devices being produced and sold.
Furthermore, to the extent the NPR applies to slamfire shotguns and firearms, Gatling guns, and
triggers, there are tens of millions of such firearms and devices in private ownership. Yet, ATF
has failed to provide individual notice to all those known to own or possess a bump-stock-device,
let alone those owning or possessing slamfire shotguns and firearms, as well as, Gatling guns,
and triggers; thereby, potentially depriving those individuals of an opportunity to respond, in
direct violation of due process. As there can be no dispute, as discussed infra Section II., B., 1.,
i., that those owning and possessing bump-stock-devices and other firearms and devices covered
by the NPR, have a vested property interest in their firearms and devices, ATF was required, at a
minimum, to take all possible steps to identify those known to own or possess these firearms and
devices and provide them, each, with notice of this rulemaking proceeding, since it directly
affects their property interests.

ii.

The Rulemaking Proposal Constitutes Entrapment Given ATF’s Prior
Approvals and Public’s Reliance Thereon

Although ATF publicly approved bump-stock-devices on at least ten occasions between
2008 and 2017 (83 Fed. Reg. at 13445; see also Exhibit 10) and issued ATF Ruling 2004-5 29
and Revenue Ruling 55-528, 1955-2 C.B. 482, in relation to Gatling guns, it now seeks to
severely criminalize the possession of those very same bump-stock-devices – and potentially
28

FPC believes that they have found three of the ten determinations that were issued between
2008 and 2017, which are attached as Exhibit 10. See also, https://www.cbsnews.com/news/canthe-atf-regulate-bump-stocks-the-device-used-by-the-las-vegas-shooter/;
https://perlmutter.house.gov/uploadedfiles/atf_response_04.16.13.pdf.
29
Available at https://www.atf.gov/file/83561/download
26
Exhibit A, Pg. 29

“slamfire” shotguns and firearms, Gatling guns, and triggers – at the expense of law-abiding
individuals who have relied on those determinations, followed appropriate procedures and
complied with the law. This sudden change in position after eight years of reliance by the public
on determinations to the contrary, clearly constitutes entrapment since the agency invited
reliance on its consistent decisions and now seeks to unfairly impose criminal penalties for the
public’s reliance, with potential punishment of 10 years imprisonment, pursuant to 18 U.S.C. §
924(a)(2). As declared by the U.S. Supreme Court, “[e]ntrapment occurs only when criminal
conduct was the ‘product of the creative activity of law-enforcement officials.’…. a line must be
drawn between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman
v. United States, 356 U.S. 369, 372 (1958) (internal citation omitted). The Court continued that it
is unconstitutional for the Government to beguile an individual “into committing crimes which
he otherwise would not have attempted.” Id. at 376. In this matter, by changing the definition of
a machinegun, ATF seeks to entrap citizens who have simply purchased a federally-approved
firearm accessory. Thus, ATF has set a trap with, by their own estimate, the potential to ensnare
520,000 law-abiding citizens; 30 whereby, those law-abiding citizens can be imprisoned for up to
10 years, without even receiving individual notice of ATF’s reversal of position. 83 Fed. Reg.
13451.
2.

The Proposal Constitutes a Taking Without Just Compensation
i.

The Fifth Amendment Precludes a Regulatory Taking

ATF’s proposed rule will force law-abiding citizens to forfeit or destroy their lawfully
30

The actual number may be significantly larger – possibly triple or quadruple the stated number
– depending on all the firearms and devices to which the NPR applies, as discussed supra and
infra.
27
Exhibit A, Pg. 30

purchased, owned, and possessed property, in violation of the Fifth Amendment. The Takings
Clause of the Fifth Amendment to the U.S. Constitution provides that when private property, real
or personal, is taken or destroyed by the government, the government must pay just
compensation to the person(s) whom the property was taken from. Horne v. Dep’t of Agric., 135
S. Ct. 2419, 2425-28 (2015) (applying Takings Clause to personal property); Pumpelly v. Green
Bay & Mississippi Canal Co., 80 U.S. 166, 177 (1871) (applying Takings Clause to destroyed
property not used for public purpose). The general rule states that a regulatory action constitutes
a taking under the Fifth Amendment when the action goes too far in regulating private property.
Mahon, 260 U.S. at 415. Moreover, the Supreme Court has declared that “[a] ‘taking’ may be
more readily found when the interference with property can be characterized as a physical
invasion by government, than when interference arises from some public program adjusting the
benefits and burdens of economic life.” Penn Cent. Transp. Co. v. City of New York, 438 U.S.
104, 124 (1978). As this regulation is clearly not meant to adjust the benefits or burdens of
economic life, the compelled forfeiture or destruction of bump-stock-devices and other firearms
and devices covered by the NPR constitutes a physical invasion and taking by government; and
therefore, ATF must address and provide for the payment of just compensation to each
individual who would be deprived of their property under the NPR.
As reflected in the Verified Declaration of Damien Guedes, he purchased a Bump Fire
Systems’ bump-stock-device, only after ensuring the legality of the device and relying on ATF’s
determination to Bump Fire System that the device was lawful and did not constitute a
machinegun. See Exhibit 15. Matthew Thompson, likewise, issued a Verified Declaration stating
that he purchased a Slide Fire bump-stock-device, only after ensuring the legality of the device
and relying on ATF’s determination to Slide Fire that the device was lawful and neither

28
Exhibit A, Pg. 31

constituted a firearm nor a machinegun. See Exhibit 16. Thus, both Mr. Guedes and Mr.
Thompson, in reliance on ATF’s prior determinations, purchased bump-stock-devices, which
ATF now seeks to reclassify 31 as a machinegun – in violation of the ex post facto clause of the
U.S. Constitution, discussed infra – and seeks to force their surrender or destruction of the bumpstock-devices, in the absence of just compensation, 32 all in violation of the takings clause of the
U.S. Constitution.
Since ATF failed to address the takings aspects of this proposed rule, including, as
discussed supra and infra, its potential application to shotguns and firearms that are capable of
“slamfiring”, as well as, Gatling guns, and triggers, interested parties have been denied
meaningful review of ATF’s position in this regard; however, to the extent ATF contends that an
individual would lack a possessory interest in a bump-stock-device and other firearms and
devices covered by the NPR as a result of the proposed rule being enacted, the U.S. Supreme
Court has already held that while an individual may lose his/her possessory interest in a firearm
or other tangible or intangible object, the individual does not lose his/her property or ownership
interest in the object. Henderson v. United States, 135 S.Ct. 1780, 1785 (2015) (holding that
even where an individual is prohibited from purchasing and possessing firearms, he/she still
retains a property interest in firearms previously acquired.). Furthermore, as the proposed rule
constitutes a per se taking, the Government must provide just compensation. Nixon v. United
States, 978 F.2d 1269, 1284 (D.C. Cir. 1992). Thus, even if ATF enacted the proposed rule, it
would still be responsible for paying just compensation to each person deprived of his/her
property.
31

See 83 Fed. Reg. 13348, where ATF acknowledges that the proposal is a reclassification.
As reflected in the declarations, Mr. Guedes paid a total of $105.99 for his bump-stock-device
and Mr. Thompson paid a total of $134.00 for his bump-stock-device.
32

29
Exhibit A, Pg. 32

ii.

Cost-Impact Statement Fails to Address Just Compensation for the
Taking

Once again, ATF has denied interested individuals meaningful review and opportunity to
comment by failing to address the economic impact when factoring in the just compensation that
it is constitutionally-obligated to pay law-abiding citizens, who own bump-stock-devices and
other firearms and devices covered by the NPR, if it proceeds with the proposed rule. While ATF
provides detailed tables concerning the anticipated economic loss to producers, retailers, and
consumers, the proposed rule fails to provide information on how the Government will fulfill its
obligation to compensate affected individuals for the taking. As reflected in the proposal, ATF
assumes “an average sale price for bump-stock-devices from 2012-2017 [of[ $200.00,” while
acknowledging that the prices ranged from $179.95 to $425.95. 83 Fed. Reg. 13451. The
proposal then declares the primary estimated cost to be $96,242,750.00 based on ATF’s primary
estimate of 520,000 bump-stock-devices having been produced. Id. However, multiplying ATF’s
stated average price of $200.00 by the primary estimate yields a value of $104,000,000.00, not
$96,242,750.00 as stated in Table 3. Moreover, by averaging the acknowledged prices for bumpstock-devices, a proper average sale price should be $302.95, which would result in a primary
estimated cost of $157,534,000.00 in just compensation being due. Additionally, both estimated
costs may be grossly under-estimated given ATF’s proposed changes to 27 C.F.R. § 447.11 and
27 C.F.R. 478.11, since they would seemingly include any device – inclusive of rubber bands
and belt loops. More disconcerting, as mentioned on page 6 of the Savage Comment, 33 the
proposed rule would seemingly apply to hundreds of thousands, if not millions, of shotguns and
33

See “Analysis and Commentary Regarding: Docket Number: ATF 2017R-22 & Bump-StockType-Devices”, ID: ATF-2018-0002-31210, Tracking Number: 1k2-93f3-s09b at 4 and 62 – 63,
available electronically at – https://www.regulations.gov/document?D=ATF-2018-0002-31210,
in “Email 013 (Historic Arms) rec 5-29-18 ” as pdf pages 1 – 2.
30
Exhibit A, Pg. 33

other firearms, which are capable of “slamfiring” 34 which would constitute “firing without
additional physical manipulations of the trigger by the shooter.” It would also seemingly overrule
– without any notice and opportunity to comment – ATF Ruling 2004-5 35 and Revenue Ruling
55-528, 1955-2 C.B. 482, in relation to Gatling guns and result in reclassification of their status –
i.e. turning the millions of owners into felons overnight and without just compensation being
provided. Given that the price, per Gatling gun, can be as high as $124,000.00, if not more, the
reclassification of Gatling guns would result in a substantial upward calculation of the cost
estimate in this matter.

34

See Colton Bailey, Slam Fire Shotgun? This One Shoots Multiple Rounds Without Releasing
The Trigger, Wide Open Spaces, (Feb. 13, 2017), available at
http://www.wideopenspaces.com/slam-fire-shotgun-shoots-multiple-rounds-without-releasingthe-trigger.
35
Available at https://www.atf.gov/file/83561/download.
31
Exhibit A, Pg. 34

Even more disconcerting, as discussed infra in Section V., given ATF’s argle-bargle and
interpretive jiggery-pokery, the NPR can be construed as applying also to triggers and fingers, 36
which again, would result in a skyrocketing upward calculation of the cost estimate in this
matter.
Regardless of the estimate considered, ATF has failed to address any appropriations
available to it or, more generally, the Department of Justice to fund these takings and any such
fund, if limited solely to bump-stock-devices, must have a high estimate of $221,494,000.00
($425.95 x 520,000) available to ensure that all individuals are justly compensated. If, on the
other hand, the proposal will apply to shotguns and other firearms capable of “slamfiring”, as
well as Gatling guns, triggers and fingers, 37 there must be an allocation of no less than
$50,000,000,000,000.00.
Thus, before ATF can proceed in this matter, it must provide logistical information as a
part of its cost-impact statement detailing how it plans to pay compensation including, but not
limited to, the compensation rate, timeline for completing payment, source of the funding, and
sequestration of an appropriate amount in an account restricted to paying just compensation in
this matter. Thereafter, it must provide interested parties with a meaningful opportunity to
respond, which, per 18 U.S.C. § 926(b), cannot be shorter than ninety days.

36

The average value under state and federal workers compensation acts across the U.S. for the
loss of an index finger is $24,474.00, with the federal value being $86,788.00. Accordingly, as a
federal rate is set, at a minimum, ATF would be required to utilize this value. See Exhibit 31,
also available at - https://projects.propublica.org/graphics/workers-compensation-benefits-bylimb.
37
With there being between 270,000,000 and 310,000,000 gun owners in the U.S. (see
http://www.pewresearch.org/fact-tank/2013/06/04/a-minority-of-americans-own-guns-but-justhow-many-is-unclear), the takings alone in relation to fingers, utilizing the low 270 million gun
owner estimate, would be $23,432,760,000,000.00 or 270,000,000 x $86,788.00.
32
Exhibit A, Pg. 35

C.

The Ex Post Facto Clause

Pursuant to Article 1, Section 9, Clause 3 of the U.S Constitution, “No Bill of Attainder
or ex post facto Law shall be passed.” The U.S. Supreme Court in Calder v. Bull, 3 U.S. 386
(1798) held that an ex post facto law includes, inter alia, “[e]very law that makes an action done
before the passing of the law, and which was innocent when done, criminal; and punishes such
action.” The Court later recognized that the provision reached far enough to prohibit any law
which, “in relation to the offence or its consequences, alters the situation of a party to his
disadvantage.” Collins v. Youngblood, 497 U.S. 37, 47 (1990).

1.

ATF’s Proposal Acknowledges that Bump-stocks are not Covered by the
Definition of a Machinegun and Retroactively Criminalizes Lawful
Conduct

On at least two occasions in the proposed rulemaking, ATF acknowledges that the current
definition of a machinegun does not cover bump-stock-type devices 38 that it now seeks to
regulate. 83 Fed. Reg. 13444, 13448. ATF then explicitly declares that if the final rule is
consistent with the proposal, there will be no mechanism for current holders of bump-stock-type
devices – or any other firearm or device covered by the NPR – to register them and will therefore
be compelled to dispose of them. 83 Fed. Reg. 13448. There is no dispute, and ATF readily
admits, that its proposed rule would change the definition of a machinegun; thereby, affecting
numerous sections of federal law and immediately turning, at a minimum, half a million lawabiding citizens into criminals overnight. ATF’s proposal neither includes a grandfather
provision nor a safe harbor, even for a limited period of time. More disconcerting – as if such

38

It likewise does not cover rubber bands, belt loops, slamfire shotguns and firearms, Gatling
guns, triggers, or fingers.
33
Exhibit A, Pg. 36

were fathomable in anything but an Orwellian nightmare – is the fact that those possessing
bump-stock-devices will have no knowledge of whether any final rule will be implemented, the
text of that rule, and the date, as the final rule would become effective immediately upon the
signature of Attorney General Sessions, without prior publication to the public. But that’s no big
deal, right? It’s only 10 years in jail and $250,000.00, per violation. Thank God that Article 1,
Section 9, Clause 3 precludes such. 39
Just as there can be no dispute that the current definition of machinegun does not cover
bump-stock-devices, rubber bands, belt loops, “slamfire” shotguns and firearms, Gatling guns,
triggers, and fingers, as evidenced by the proposed rule seeking to modify the regulatory
definition of machinegun, there can be no dispute that the proposed rule violates the ex post facto
Clause, even though it is a regulatory action because the “sanction or disability it imposes is ‘so
punitive in fact’ that the law ‘may not legitimately be viewed as civil in nature.” United States v.
O'Neal, 180 F.3d 115, 122 (4th Cir. 1999) (quoting U.S. v. Ursery, 518 U.S. 267, 288 (1996)).

III.

ATF’S PROPOSAL EXCEEDS ITS STATUTORY AUTHORITY
From the outset, it is clear that the NFA was designed to provide a basis for prosecution

of “gangsters” with untaxed, unregistered firearms and not as a regulation of law-abiding citizens
who complied with the law. ATF has turned the statutory scheme on its head, imposing ever
more draconian burdens on law-abiding citizens who seek to make and acquire NFA firearms

39

FPC make this statement pursuant to their First Amendment rights under the U.S. Constitution
to the extent that ATF has not seemingly sought to abrogate that inalienable right in the NPR,
although ATF has declared its intent, in violation of the First Amendment, not to consider
comments containing what it deems to be “inappropriate language” for which FPC will
vigorously challenge in court.
34
Exhibit A, Pg. 37

while diverting resources to do so from investigating and prosecuting criminals who use illegal
means to obtain NFA firearms.
ATF describes the NFA in terms that go beyond the statutory text. According to ATF's
Website, the NFA’s “underlying purpose was to curtail, if not prohibit, transactions in NFA
firearms.” http://www.atf.gov/content/firearms/firearms-industry/national-firearms-act (emphasis
added). It describes the $200 tax imposed by the NFA as having been designed “to discourage or
eliminate transactions in these firearms.” Id. (emphasis added). But Congress has never
“prohibited” NFA firearms or “eliminated” the ability to transfer them provided the tax is paid
and registration procedures are followed.

A.

Congress Prohibited “Undue or Unnecessary” Restrictions

Congress has, in fact, legislated to limit the authority of ATF to impose more burdens on
law-abiding citizens. Congress was aware of ATF's over-zealous interpretation of the NFA when
it enacted the Firearms Owners' Protection Act ("FOPA"), Pub. L. 99-308, 110 Stat. 449 (1986).
It would be an understatement to say that Congress thought ATF had reached the maximum
boundary of its rulemaking and enforcement authority. Well aware of ATF’s history, as
discussed supra in Section I., D., made clear in FOPA that ATF’s regulation and enforcement
activities of legal owners of firearms – like those who seek to register firearms under the NFA –
had already gone too far. Congress found that not only were statutory changes needed to protect
lawful owners of firearms, but that “enforcement policies” needed to be changed as well. FOPA
§ 1(b). In doing so, Congress reaffirmed that “it is not the purpose of this title to place any undue
or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the
acquisition, possession, or use of firearms,” id. (emphasis added), signaling in the strongest
35
Exhibit A, Pg. 38

possible language that ATF should not impose yet additional burdens on law-abiding citizens,
especially in light of the existing criminal laws prohibiting, inter alia, murder, manslaughter,
aggravated assault, etc. Yet, that is precisely what ATF’s proposed rule would do.

B.

Independent of FOPA, ATF Lacks Statutory Authority As the Congress Defined
What Constitutes a Machinegun

Even without consideration of FOPA, there are ample reasons to doubt that Congress
authorized ATF to formulate the proposed regulation, as Congress, itself, defined what
constitutes a machinegun when enacting the NFA in 1934 and the GCA in 1968 and numerous
members of Congress have stated that ATF lacks the authority to redefine what constitutes a
machinegun. As an administrative agency cannot override a congressional enactment, ATF lacks
authority and jurisdiction to amend or otherwise modify the definition of a machinegun as
enacted by the Congress.
In the original NFA as enacted in 1934, and reaffirmed in enacting the GCA in 1968, the
Congress expressly defined what constitutes a machinegun. 18 U.S.C. § 921(a)(23) states “[t]he
term ‘machinegun’ has the meaning given such term in section 5845(b) of the National Firearms
Act (26 U.S.C. 5845(b)).” 26 U.S.C. § 5845(b) declares:
The term “machinegun” means any weapon which shoots, is designed to shoot, or
can be readily restored to shoot, automatically more than one shot, without
manual reloading, by a single function of the trigger. The term shall also include
the frame or receiver of any such weapon, any part designed and intended solely
and exclusively, or combination of parts designed and intended, for use in
converting a weapon into a machinegun, and any combination of parts from
which a machinegun can be assembled if such parts are in the possession or under
the control of a person.
(Emphasis added).

36
Exhibit A, Pg. 39

ATF proposes to expand the definition of what a “machinegun” means by adding the
following two sentences to the end of the current definition found in 27 C.F.R. §§ 478.11 and
479.11. 40
For purposes of this definition, the term “automatically” as it modifies “shoots, is
designed to shoot, or can be readily restored to shoot,” means functioning as the
result of a self-acting or self-regulating mechanism that allows the firing of
multiple rounds through a single function of the trigger; and “single function of
the trigger” means a single pull of the trigger. The term “machine gun” includes
bump-stock-type devices, i.e., devices that allow a semiautomatic firearm to shoot
more than one shot with a single pull of the trigger by harnessing the recoil
energy of the semiautomatic firearm to which it is affixed so that the trigger resets
and continues firing without additional physical manipulation of the trigger by the
shooter.
83 Fed. Reg. 13457.
And, lest there be no dispute, even Senator Diane Feinstein declared that “ATF lacks
authority under the law to ban bump-fire stocks. Period.” See Exhibit 9. And ATF previously
admitted to Congress that it “does not have authority to restrict [bump-stock devices’] lawful
possession, use or transfer.” See Exhibit 10, p. 5. More importantly, as confirmed by J. Thomas
Manger, President of the Major Cities Chiefs Association and Chief of Police of Montgomery
County, in his testimony before the Senate Judiciary Committee, ATF Acting Director Thomas
Brandon admitted that “ATF does not now have the authority under Federal law to bar [bumpstock-devices] and new legislation is required to do so.” See Exhibit 30, p. 3 (emphasis added).
And the courts have agreed that such an alteration is beyond the power of ATF. “As a
rule, [a] definition which declares what a term ‘means’ ... excludes any meaning that is not
stated.” Colautti v. Franklin, 439 U.S. 379, 392–393, n. 10, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979).
Congress clearly defined the meaning of the term “machinegun” as evidenced by its use of the
40

The definition of “machinegun” contained in 27 C.F.R. §§ 478.11 and 479.11 mirrors the
definition Congress gave the term in 26 U.S.C. § 5845(b).
37
Exhibit A, Pg. 40

phrase “[t]he term ‘machinegun’ means.” 41 Even if ATF could define the terms “automatically”
and “single function of the trigger”, which is disputed, ATF lacks the authority to unilaterally
declare an item to be a machine gun when it falls outside the statutory parameters, particularly by
incorporating it into the definition itself. 42
“If the intent of Congress is clear, that is the end of the matter; for the court, as well as
the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984).
“Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms
when it wishes to enlarge, agency discretion.” City of Arlington, Tex. V. F.C.C., 569 U.S. 290,
296 (2013).
Here, there can be no question that the intent of Congress was clear. Congress sought to
regulate firearms that: 1) shoot, 2) were designed to shoot, or 3) can be readily restored to shoot,
4) automatically more than one shot, without manual reloading, 5) by a single function of the
trigger. This can be gleaned from an analysis of the debate surrounding the passage of the
legislation. “Mr. Frederick.[] The distinguishing feature of a machine gun is that by a single pull
of the trigger the gun continues to fire as long as there is any ammunition in the belt or in the
magazine. Other guns require a separate pull of the trigger for every shot fired, and such guns
are not properly designated as machineguns. A gun…which is capable of firing more than one
shot by single pull of the trigger, a single function of the trigger, is properly regarded, in my
41

Even Dictionary.com defines the term “Machine Gun” to mean “a small arm operated by a
mechanism, able to deliver rapid and continuous fire as long as the trigger is pressed.” Available
at: http://www.dictionary.com/browse/machine-gun. ATF taking such a nuanced approach to
parsing specific terms to shoehorn a particular group of accessories into the definition flies in the
face of the statutory text’s plain meaning.
42
See 18 U.S.C. 926(a) “The Attorney General may prescribe only such rules and regulations as
are necessary to carry out provisions of this chapter…” (Emphasis added).
38
Exhibit A, Pg. 41

opinion, as a machine gun.” Exhibit 29, National Firearms Act: Hearings Before the Committee
on Ways and Means, H.R. Rep. No. 9066, 73rd Cong. 2nd Sess. at 40 (1934) (emphasis added).
For the purposes of this analysis, a machinegun can be distilled down to: a firearm which
shoots automatically more than one shot, without manual reloading, by a single function of the
trigger. Congress also sought to regulate the frames or receivers of such weapons, along with any
parts that could be used to make or convert a firearm into a machinegun. Such an interpretation is
in line with prior court and agency decisions. See Staples v. United States, 511 U.S. 600 (1994)
(“The National Firearms Act criminalizes possession of an unregistered ‘firearm,’ 26 U.S.C. §
5861(d), including a ‘machinegun,’ § 5845(a)(6), which is defined as a weapon that
automatically fires more than one shot with a single pull of the trigger, § 5845(b).”); see also Id.
at n1 (“As used here, the terms ‘automatic’ and ‘fully automatic’ refer to a weapon that fires
repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will
automatically continue to fire until its trigger is released or the ammunition is exhausted. Such
weapons are ‘machineguns’ within the meaning of the Act.”). 43
Moreover, the Government has previously argued to a Federal Court that a bump-stockdevice was not a machinegun. “While the shooter receives an assist from the natural recoil of the
weapon to accelerate subsequent discharge, the rapid fire sequence in bump firing is contingent

43

See also ATF Rul. 2004-5 quoting George C. Nonte, Jr., Firearms Encyclopedia 13 (Harper &
Rowe 1973) (the term “automatic” is defined to include “any firearm in which a single pull and
continuous pressure upon the trigger (or other firing device) will produce rapid discharge of
successive shots so long as ammunition remains in the magazine or feed device – in other words,
a machine gun”); Webster’s II New Riverside-University Dictionary (1988) (defining
automatically as "acting or operating in a manner essentially independent of external influence or
control"); John Quick, Ph.D., Dictionary of Weapons and Military Terms 40 (McGraw-Hill
1973) (defining automatic fire as "continuous fire from an automatic gun, lasting until pressure
on the trigger is released").
39
Exhibit A, Pg. 42

on shooter input in pushing the weapon forward, rather than mechanical input, and is thus not an
automatic function of the weapon.” See Exhibit 25, page 22.
The statutory language is explicitly clear as to what constitutes a machinegun and is
inclusive of parts that can be used to assemble a functioning firearm. ATF acknowledges that
bump-stock-devices are not currently able to be regulated as machineguns because it seeks to
amend the definition to specifically include them and other firearms and devices covered by the
NPR, discussed supra and infra. Notably absent from the statutory text is language, specifically
or implicitly, naming parts that can be used in conjunction with a firearm, which is not a
machinegun, to simulate automatic fire.

C.

ATF is Statutorily Prohibited From Retroactively Applying the NPR

ATF has acknowledged that it is precluded from taking any action with regard to the
reclassification of bump-stock-devices manufactured prior to at least March 29, 2018. As noted
in ATF Rul. 82-8, the reclassification of SM10 and SM11A1 pistols and SAC carbines as
machineguns, under the National Firearms Act, was not applicable to those firearms
manufactured before or assembled before June 21, 1982 pursuant to 26 U.S.C. § 7805(b). 26
U.S.C. § 7805(b) states:
Retroactivity of regulations.-(1) In general.--Except as otherwise provided in this subsection, no temporary,
proposed, or final regulation relating to the internal revenue laws shall apply to
any taxable period ending before the earliest of the following dates:
(A) The date on which such regulation is filed with the Federal Register.
(B) In the case of any final regulation, the date on which any proposed or
temporary regulation to which such final regulation relates was filed with the
Federal Register.
(C) The date on which any notice substantially describing the expected contents
of any temporary, proposed, or final regulation is issued to the public.
40
Exhibit A, Pg. 43

More recently, in enacting ATF-41F (81 Fed. Reg. 2658 through 2723), ATF seemingly
invoked Section 7805(b) in declining to retroactively apply the final rule and instead permitting a
six month delay in implementation of the final rule and acknowledging that all applications
submitted prior to the effective date would be adjudged by the law as it existed prior to the final
rule, regardless of whether the application was approved before the effective date of the final
rule.
Thus, any final regulation that is promulgated has no effect on bump-stock-devices and
other firearms and devices covered by the NPR, which were manufactured, at a minimum, prior
to the date of publication of this NPR in the Federal Register.

IV.

ATF’S PROPOSAL IS ARBITRARY AND CAPRICIOUS
Contrary to the contention in the proposed rulemaking, bump-firing is neither the result

of any particular firearm accessory, device or part nor the modification thereof. Rather, it is a
technique that can be utilized with the intrinsic capabilities of most factory semi-automatic
firearms, including the rifles, such as the AR-15, and pistols, such as the 1911. As reflected infra
and admitted by ATF (83 Fed. Reg. 13454), bump-firing can be done with a belt loop, a rubber
band, or just one’s finger. More importantly, no device – whether bump stock, belt loop, rubber
band or finger – changes the intrinsic capability of the firearm to be bump-fired. This is made
explicitly evident by Jerry Miculek, who can not only shoot faster than an individual employing
bump-fire but can shoot far more accurately. 44

44

See Exhibits 3 and 4.
41
Exhibit A, Pg. 44

Thus, the proposed rule in this matter is so completely arbitrary and capricious that it will
not withstand scrutiny. See, Motor Vehicle Manufacturers Association v. State Farm Auto
Mutual Insurance Co., 463 U.S. 29, 42-44 (1983).

A.

ATF’s Interpretative Jiggery-Pokery is Pure Applesauce

As reflected in the expert report of former ATF Acting Chief of the Firearms Technology
Branch Rick Vasquez, bump-stock-devices do not constitute a machinegun, as they are not
designed to shoot more than one shot by a single function of the trigger. See Exhibit 32.
Specifically, he declares that a “Slide Fire [stock] does not fire automatically with a single
pull/function of the trigger” and as a result, “ATF could not classify the slide fire as a
machinegun or a machinegun conversion device, as it did not fit the definition of a machinegun
as stated in the GCA and NFA.” Id. More importantly, although ATF has failed to disclose it in
the NPR or docket, the Slide Fire determination “was sent to Chief Counsel and higher authority
for review. After much study on how the device operates, the opinion, based on definitions in the
GCA and NFA, was that the Slide Fire was not a machinegun nor a firearm, and, therefore, did
not require any regulatory control.” Id.
Thus, regardless of the interpretative jiggery-pokery employed by ATF in the NPR, at the
end of the day, it is pure applesauce.

B.

Belt Loops, Rubber Bands and Fingers, OH MY!

Reflecting the absolutely arbitrary and capricious nature of this rulemaking, ATF admits
– albeit at the end of the proposal in the “Alternatives” section – that an individual does not
require a bump-stock-device in order to bump-fire a factory semi-automatic firearm. 83 Fed.
42
Exhibit A, Pg. 45

Reg. 13454. In fact, ATF readily acknowledges that bump-firing can be lawfully achieved
through the “use [of] rubber bands, belt loops, or [to] otherwise train their trigger finger to fire
more rapidly,” in a clear statement of its intent to unequally apply the law. Id.
Numerous videos and articles are available reflecting individuals bump-firing with
everything from their finger to belt loops and rubber bands. For example, P.M.M.G. TV posted a
video in 2006 of a rubber band being utilized to bump fire a factory semi-automatic firearm. See
Exhibit 11. 45 In 2011, StiThis1, posted a video of him utilizing his belt loop to bump-fire his
AK-47. See Exhibit 12. 46
More importantly, reflecting that no device is necessary to bump-fire a factory semiautomatic firearm, ThatGunGuy45 posted a video of him bump-firing an AK-47 style rifle with
his finger. See Exhibit 13. 47 Similarly, M45 posted a video of him bump-firing both an AK-47
and AR-15 solely with his finger. See Exhibit 14. 48 In no better example, former former ATF
Acting Chief of the Firearms Technology Branch Rick Vasquez, who previously reviewed
bump-stock-devices – specifically the Slide Fire bump-stock – while with ATF, after declaring
that a bump-stock-device is not statutorily or regulatorily a machinegun, 49 demonstrates the
45

A copy of the video is also available online – Shooting Videos, Rapid manual trigger
manipulation (Rubber Band Assisted), YouTube (Dec. 14, 2006),
https://www.youtube.com/watch?v=PVfwFP_RwTQ&t.
46
A copy of the video is also available online – StiThis1, AK-47 75 round drum Bumpfire!!!,
YouTube (Sept. 5, 2011), https://www.youtube.com/watch?v=-03y3R9o6hA.
47
A copy of the video is also available online – ThatGunGuy45, ‘Bump Fire’ without a bumpfire stock, courtesy of ThatGunGuy45, YouTube (Oct. 13, 2017),
https://www.youtube.com/watch?v=-9fD_BX-afo&t.
48
A copy of the video is also available online – M45, How to bumpfire without bumpfire stock,
YouTube (Oct. 8, 2017), https://www.youtube.com/watch?v=7RdAhTxyP64&t. See also,
wrbuford13, How To: Bump fire a semi-automatic rifle from the waist, YouTube (May 25,
2011), https://www.youtube.com/watch?v=wZCO-06qRgY.
49
During his interview, he declares “[i]f Congress wants to change the law and come up with a
new interpretation, then ATF will follow that new interpretation. But until they do that, they have
to go by the [law] they have today.”
43
Exhibit A, Pg. 46

ability of a factory semi-automatic AR-15 and AK-47 to bump-fire solely with his finger. See
Exhibit 17. 50 Expert Vasquez then goes on to declare, in response to a question of what if
Congress bans bump-fire devices, “[w]hat are they going to ban? If they come out today and say
the Slide Fire Stock or the binary trigger by name is made illegal, they’re going to have to make
illegal the operating principle.” Id.
Beyond showing that the proposed rulemaking in this matter is completely arbitrary and
capricious, as no device is even necessary to bump-fire a factory semi-automatic firearm, these
videos and others that are available on YouTube and other social media platforms, reflect that
law-abiding citizens have been bump-firing long before Al Gore invented the internet; 51 and yet,
ATF cannot produce a single shred of evidence of a bump-stock-device ever having been utilized
in a crime.

C.

The Jerry Miculek Example – He’s One Bad Mother… Shut Your Mouth (And:
Oh No! They Banned Jerry!)

As mentioned supra, Jerry Miculek not only can shoot faster than an individual
employing a bump-stock-device but can shoot far more accurately. See Exhibit 3 and 4. 52 Even
more evident of the completely arbitrary and capricious nature of this proceeding is the video
compendium of Mr. Miculek’s abilities and achievements, which depicts that “he did it. He did 8

50

A copy of the video is also available online – Vice News, Meet One Of The Analysts Who
Determined That Bump Stocks Were Legal, YouTube (Oct. 11, 2017),
https://www.youtube.com/watch?v=kryIJIrD5eQ&t.
51
It has to be true – he said it on live TV… https://www.youtube.com/watch?v=BnFJ8cHAlco.
52
Copies of the videos are also available online – Iraqveteran8888, Worlds Fastest Shooter vs
Bump Fire! – Guns Reviews, YouTube (Oct. 13, 2014),
https://www.youtube.com/watch?v=JTb6hsSkV1w and Miculek.com, AR-15 5 shots in 1 second
with fastest shooter ever, Jerry Miculek (Shoot Fast!), YouTube (June 20, 2013)
https://www.youtube.com/watch?v=v3gf_5MR4tE&t.
44
Exhibit A, Pg. 47

rounds in one second, on one target. He did 8 rounds on four targets in 1.06 [seconds]. Six shots
and reload and six shots in 2.99 seconds.” See Exhibit 18. 53 Thus, as individuals can achieve,
with greater accuracy, faster cyclic rates than those utilizing bump-stock-devices, the underlying
premise of this proceeding is completely arbitrary and capricious.
More disconcerting is that to the extent ATF contends in the NPR that it is carrying out
some unverified and unsupported contention of Congress to ban anything mimicking the rate of
fire of a machinegun 54 (83 Fed. Reg. 13447) – a rate of which varies greatly 55 and neither has a
commonly accepted average rate nor a proposed rate by ATF – Mr. Miculek would seemingly be
banned by any final promulgated rule, in violation of his Constitutional Rights and reflecting the
sheer absurdity of this NPR.

D.

Whoops, We Did it Again! ATF Misleads the Public Regarding the Use of
Bumpstock Devices in the Las Vegas Shooting

As discussed supra in Section I., B., while implying that a bump-stock-device was
utilized in the Las Vegas shooting, ATF has failed to provide evidence of a single instance where
a bump-stock-device was utilized in the commission of a crime and neither ATF nor FBI have
confirmed the use of a bump-stock-device in any crime. Instead, ATF relies solely on prior

53

A copy of the video is also available online – Fastest Shooter OF ALL TIME! Jerry Miculek |
Incredible Shooting Montage, DailyMotion (2014),
https://www.dailymotion.com/video/x2y1eb8.
54
In fact, ATF’s assertion is contradicted by the testimony in enacting the NFA – previously
cited to by ATF in federal court proceedings – which reflects the Congress’ intent that guns
which “require a separate pull of the trigger for every shot fired, … are not property designated
as machineguns.” Exhibit 29, p. 40.
55
For example, the Metal Storm gun has a cyclic rate of fire of 1,000,000 rounds (that isn’t a
typo), per minute (see, http://www.businessinsider.com/worlds-fastest-gun-2016-2), a minigun
has a rate of fire of 6,000 rounds, per minute (id.), and some have as slow of a cyclic rate as 200
rounds, per minute (see, https://encyclopedia2.thefreedictionary.com/Cyclic+rate).
45
Exhibit A, Pg. 48

“public comments,” which are merely conjecture, to suggest that a bump-stock-device was
utilized in Las Vegas (83 Fed. Reg. 13454), 56 while thereafter declaring that bump-stock devices
“could be used for criminal purposes.” (83 Fed. Reg. 13455)(emphasis added). The use of the
word “could” reflects that such use is merely speculative and limited to a possible future, not
past, occurrence. More importantly, as ATF is involved in the investigation into the Las Vegas
shooting, it is in the unique position to have evidence reflecting the use of bump-stock-devices in
the shooting, if such devices were utilized; yet, it has not only failed to submit any evidence even
suggesting the use of bump-stock-devices in the Las Vegas shooting but has failed to even
contend, based on its own knowledge, that such devices were utilized. Additionally, the Las
Vegas Metropolitan Police Department Preliminary Investigative Report likewise provides no
indication that any bump-stock-devices were utilized in the shooting. See, Exhibit 2. 57
Thus, ATF acknowledges that but for public conjecture, it has no evidence or knowledge
that a bump stock device has been utilized in a crime and only hypothesizes that a bump-stock
device “could be used for criminal purposes.” Moreover, as discussed supra in Section I., D.,
based on ATF’s lack of candor before the courts, Congress, and the public, any contention by
ATF that such devices were utilized in the Las Vegas shooting must be dismissed, in the absence
of independently-verifiable evidence in support.
Further, ATF’s argument as to why they need to be regulated is misleading.

56

Given ATF’s prior use of proxies in rulemaking proceedings to support its contentions, these
alleged “public comments” cannot be taken at face value, especially in the absence of any
evidentiary support. See Firearms Industry Consulting Group’s comment in response to ATF41P, RIN: 1140-AA43, available at https://www.regulations.gov/document?D=ATF-2013-00018364, wherein it documents in Section G the ATF’s use of proxies in rulemaking proceedings to
support its own contentions.
57
A copy of the report is also available online at – https://www.lvmpd.com/enus/Documents/1_October_FIT_Report_01-18-2018_Footnoted.pdf.
46
Exhibit A, Pg. 49

Commenters also argued that banning bump-stock-type devices will not
significantly impact public safety. Again, the Department disagrees. The shooting
in Las Vegas on October 1, 2017, highlighted the destructive capacity of firearms
equipped with bump-stock-type devices and the carnage they can inflict. The
shooting also made many individuals aware that these devices exist—potentially
including persons with criminal or terrorist intentions—and made their potential
to threaten public safety obvious. The proposed regulation aims to ameliorate that
threat.
83 Fed. Reg. 13447. (Emphasis added).
This position is no more valid than asserting that drill presses and the internet need to be
regulated because individuals with criminal or terrorist intentions can readily access a drill press
to manufacture a machine gun after viewing a video on the internet, or even fabricate a firearm
from a chunk of raw aluminum. (Nevermind the fact that a person can purchase ammonium
nitrate and nitromethane, or pressure cookers, to build a bomb.) In the land of hypotheticals,
anything and everything could be perceived to be and categorized as a potential threat to public
safety. But a hypothetical should not and cannot be the premise of a proposed regulation.

E.

We Lied To You Once (Shame On Us). We Lied To You More Times Than We
Can Count (Shame On You For Having Your Eyes Wide Shut). The Continuing
Lies Espoused By ATF Regarding The Functionality Of Bump-Stock-Devices

In the Summary for the NPR, ATF claims that bump-stock-devices
allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a
single pull of the trigger. Specifically, these devices convert an otherwise semiautomatic
firearm into a machinegun by functioning as a self-acting or self-regulating mechanism
that harnesses the recoil energy of the semiautomatic firearm in a manner that allows the
trigger to reset and continue firing without additional physical manipulation of the
trigger by the shooter. Hence, a semiautomatic firearm to which a bump-stock-type
device is attached is able to produce automatic fire with a single pull of the trigger.
83 Fed. Reg. 13442 (emphasis added).
Even setting aside former Acting Chief of the Firearms Technology Branch Richard
Vasquez’s expert report disputing ATF’s current contention (discussed supra in Section IV., A.,
47
Exhibit A, Pg. 50

and Exhibit 28) and before addressing the video evidence of the outright falsity of these
assertions, let us first review the known determinations issued by ATF and the sworn testimony
and pleadings submitted by ATF to the courts regarding bump-stock-devices.
On June 07, 2010, ATF issued a determination letter to Slide Fire, holding that
The stock has no automatically functioning mechanical parts or springs and performs no
automatic mechanical function when installed. In order to use the installed device, the
shooter must apply constant forward pressure with the non-shooting hand and constant
rearward pressure with the shooting hand. Accordingly, we find that the “bump-stock” is
a firearm part and is not regulated as a firearm under the Gun Control Act or the National
Firearms Act.
See Exhibit 10 (emphasis added.)
Thus, ATF has already admitted that the Slide Fire stock does not operate automatically
and is neither self-acting nor self-regulating. But what about Bump Fire Systems’ bump-stockdevice? Glad you asked.
On April 2, 2012, ATF issued a determination letter to Bump Fire Systems, declaring that
The FTB live-fire testing of the submitted devices indicates that if, as a shot is fired, an
intermediate amount of pressure is applied to the fore-end with the support hand, the
shoulder stock device will recoil sufficiently rearward to allow the trigger to mechanically
reset. Continued intermediate pressure applied to the fore-end will then push the receiver
assembly forward until the trigger re-contacts the shooter’s stationary firing hand finger,
allowing a subsequent shot to be fired. In this manner, the shooter pulls the firearm forward
to fire each shot, the firing of each shot being accomplished by a single trigger function.
…
Since your device is incapable of initiating an automatic firing cycle that continues until
either the finger is released or the ammunition supply is exhausted, FTB find that it is not a
machinegun as defined under the NFA, 26 U.S.C. 5845(b), or the Gun Control Act, 18
U.S.C. 921(a)(23).
See Exhibit 10 (emphasis in original, emphasis added.)
Once again, now in relation to Bump Fire Systems’ bump-stock device, ATF found that
bump-stock-devices are incapable of automatic firing and require a mechanical reset of the

48
Exhibit A, Pg. 51

trigger – no different than any other semi-automatic firearm – and thus, are not capable of a
continuous firing cycle with a single pull of the trigger.
But, in sworn testimony and pleadings submitted to the courts, ATF contended bumpstock-devices were machineguns, right? Nope.
As reflected on page 20 of the U.S. Government’s Brief in Support of Cross Motion for
Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment in Freedom
Ordinance Mfg. Inc., v. Thomas E. Brandon:
An ATF expert testified that a true trigger activating devices [i.e. bump-stock-devices],
although giving the impression of functioning as a machine gun, are not classified as
machine guns because the shooter still has to separately pull the trigger each time he/she
fires the gun by manually operating a lever, crank, or the like.
See Exhibit 25 (emphasis added).
Hence, ATF in sworn testimony and pleadings submitted to the United States District
Court, Southern District of Indiana, admitted that the function of bump-stock-devices requires
the shooter to separately pull the trigger each time he/she fires the gun, which is two-levels
removed from being a machinegun. 58
So, the question becomes, was ATF lying then, or is it lying now? There can be no
dispute, it’s lying now.

58

The use of the terminology two-levels removed from being a machinegun is in relation to the
explicit definition of machinegun that was enacted by the Congress in 26 U.S.C. § 5845(b),
which for a firearm to constitute a machinegun, requires it to shoot “automatically more than one
shot … by a single function of the trigger.” As acknowledged by ATF, since the trigger is pulled
(i.e. a single function of the trigger) and then released (i.e. a second and separate single function
of the trigger), before the subsequent round can be fired, a bump-stock-device is two-levels
removed from being a machinegun, as it still would not constitute a machinegun, even if a
subsequent round was discharged on the release of the trigger. ATF has determined that this is a
proper analysis of Section 5845(b) in approving binary triggers, which permit the discharge of a
round on both the pull and release of the trigger.
49
Exhibit A, Pg. 52

In response to this NPR, a video was recorded depicting the actual function of a bumpstock-device. See Exhibit 28. 59 See also Exhibit 33 Declaration of Jonathan Patton. As reflected
in the video, a magazine full of ammunition is placed into an AR-15 type firearm that has a Slide
Fire bump-stock-device 60 installed onto it. The shooter then proceeds to fire the bump-stock
equipped firearm with the stock in the locked position. 61 As depicted, the bump-stock-device
neither self-acts nor self-regulates and the shooter proceeds to fire several rounds, without the
bump-stock automatically firing more than one round, per function of the trigger. 62 63 The video
clearly depicts the trigger being pulled, the gun firing a round, the bolt carrier group cycling and
the trigger being released and reset. In fact, for a subsequent round to be fired, two single and
separate functions of the trigger are necessary – the release of the trigger and the subsequent pull
of the trigger, which is no different than any other factory semi-automatic firearm. The shooter
then proceeds to unlock the stock so that it can move freely on the buffer tube and fire the gun
one handed. Once again, the video clearly depicts the trigger being pulled, the gun firing a round,
the bolt carrier group cycling and the trigger being released and reset. At not point does the gun
fire more than one round per function of the trigger.
Additionally, the close-ups reveal, contrary to ATF’s contention (83 Fed. Reg. 13447),
that “additional physical manipulation of the trigger by the shooter” is necessary for subsequent
59

A copy of the video is also available online – Adam Kraut, Esq. and Patton Media and
Consulting, Bump Stock Analytical Video, (June 14, 2018), available at
https://youtu.be/1OyK2RdO63U.
60
The actual device is a Slide Fire SSAR-15 SBS.
61
This position is the same as any other AR-15 type firearm with an adjustable stock.
62
Thus, contrary to the NPR, bump-stock-devices do not cause a continuous firing cycle with a
single pull of the trigger.
63
If the bump-stock-device actually turned the firearm into a machinegun, the entire magazine of
ammunition would have been expended, when the shooter maintained constant pressure on the
trigger. See Exhibit 26. A copy of the video is also available online – Molon Labe, hogan 7
m16.wmv, YouTube (Oct. 25, 2011), is https://www.youtube.com/watch?v=NwQ1aZnVLFA.
50
Exhibit A, Pg. 53

rounds to be discharged. Of course, all of this is irrefutably consistent with ATF’s prior
determinations and sworn testimony and pleadings submitted to the courts.
So what if the shooter shoots the bump-stock equipped AR-15 in the manner depicted by
the NPR – i.e. while “maintaining constant forward pressure with the non-trigger hand on the
barrelshroud or fore-grip of the rifle, and maintaining the trigger finger on the device’s extension
ledge with constant rearward pressure?” 83 Fed. Reg. 13443. Clearly, it will shoot automatically,
right? It self-acts and self-regulates, right? Nope.
When the shooter maintains constant forward pressure with the non-trigger hand on the
barrelshroud or fore-grip of the rifle, while maintaining the trigger finger on the device’s
extension ledge with constant rearward pressure, after the first shot is discharged, the trigger
must be released, reset, and pulled completely rearward, before the subsequent round is
discharged – again no different than any factory semi-automatic firearm. Moreover, as evidenced
by the close-ups, contrary to ATF’s assertion (83 Fed. Reg. 13443, 13447), “bump-stock-type
devices [do not] allow multiple rounds to be fired when the shooter maintains pressure on the
extension ledge of the device,” as the shooter in the video specifically maintains pressure on the
extension ledge of the device the entire time; and yet, only a single round is discharged each
time.
Surely, the video must not depict the actual function of a bump-stock-device, right?
Wrong.
Former Acting Chief of the FTB and expert Rick Vasquez was responsible for reviewing
and making a determination on the Slide Fire stock, when it was submitted to the FTB for
evaluation and classification. See Exhibit 32. After concluding that the Slide Fire stock was
neither a firearm nor a machinegun under the NFA and GCA, the determination was “reviewed

51
Exhibit A, Pg. 54

by ATF Chief Counsel and higher authorities within ATF and affirmed.” Id. More recently, he
reviewed the Bump Stock Analytical video (Exhibit 28) and declared that it “fully, explicitly, and
accurately depicts the function of bump-stock-devices, including, but not limited to, the function
and operation of the firearm’s trigger, which is exactingly consistent with my evaluation and
review of the Slide Fire stock during my tenure with ATF and my Slide Fire Analysis.” Id. He
then goes on to explain that as depicted in the video:
a. The bump-stock-device neither self-acts nor self-regulates, as the bump-stock
never fires, in any of the three possible ways to fire a bump-fire-device, more than
one round, per function of the trigger, even while the shooter maintained constant
pressure on the extension ledge. In fact, as explicitly and accurately depicted in
the slow motion portions, the bump-stock-device requires two functions of the
trigger before a subsequent round can be discharged (i.e. after the firearm is
discharged for the first time, the trigger must be fully released, reset, and then
fully pulled rearward for a subsequent round to be discharged); 64
b. Bump-stock-devices do not permit a continuous firing cycle with a single pull of
the trigger, as the video clearly depicts that the trigger must be released, reset, and
fully pulled rearward before the subsequent round can be fired; 65
c. The bump-stock-device requires additional physical manipulation of the trigger
by the shooter, as the video clearly depicts that the trigger must be released, reset,
and fully pulled rearward before the subsequent round can be fired;
d. Even when the shooter maintains constant forward pressure with the non-trigger
hand on the barrel shroud or fore-grip of the rifle, and maintains the trigger finger
on the device’s extension ledge with constant rearward pressure, after the first
shot is discharged, the trigger must be released, reset, and pulled completely
64

It must be noted, as made explicitly clear in the slow motion portions of the video, that the
bump-stock-device actually requires over-releasing of the trigger, as the shooter’s finger travels
past the trigger reset by approximately a half-inch, before beginning the sequence to fire a
subsequent round (e.g. video at 3:46 – 3:51; 3:52 – 3:55; 3:56 – 4:00). Thus, the video makes
extremely evident and clear that bump-stock-devices are actually slower than a trained shooter,
as a trained shooter, such as Jerry Miculek, would immediately begin the sequence to fire a
subsequent round after the trigger resets.
65
If the device had permitted continuous firing cycle with a single pull of the trigger, the video
would depict a scenario identical to Exhibit 26 of Firearm Policy Coalition’s Comment (also
available at https://www.youtube.com/watch?v=NwQ1aZnVLFA), where it clearly and
accurately depicts the emptying of the entire magazine, while the shooter maintains constant
pressure on the trigger.
52
Exhibit A, Pg. 55

rearward, before the subsequent round is discharged. See video at 3:47 – 4:01.
This is no different than any factory semi-automatic firearm; and,
e. The bump-stock-device does not permit automatic fire by harnessing the recoil
energy of the firearm. Harnessing the energy would require the addition of a
device such as a spring or hydraulics that could automatically absorb the recoil
and use this energy to activate itself. If it did harness the recoil energy, the bumpstock equipped firearm in the video would have continued to fire, while the
shooter’s finger remained on the trigger, after pulling it rearwards without
requiring the shooter to release and reset the trigger and then pull the trigger
completely reward for a subsequent round to be fired.
So where does this leave us? It leaves us with ATF’s prior determinations and sworn
testimony and pleadings submitted to the courts as being legally and factually indisputable, with
the contrary statements in the NPR being solely designed to carry out a false narrative on the
functionality of bump-stock-devices and to appease Attorney General Jeff Sessions and President
Donald Trump. 66
Surely, ATF hasn’t sought to further mislead the public, right? Wrong.
Once again in the NPR, ATF contends that “[s]hooters use bump-stock-type devices with
semiautomatic firearms to accelerate the firearm’s cyclic firing rate to mimic automatic fire”
(83. Fed. Reg. 13444)(emphasis added); yet, as discussed supra in Section I., B. and supported
by Expert Declaration of Vasquez and the Savage Comment, the mechanical cyclic rate of both
the semi-automatic and fully-automatic versions of a firearm are identical (and thus cannot be
accelerated), except where the manufacturer purposely slows the rate of fire for the machinegunversion; whereby, in such instances, the semi-automatic-version can exceed the cyclic rate of the
machinegun-version.
66

See Memorandum of February 20, 2018 to Attorney General Sessions from President Donald
Trump, “directing the Department of Justice to dedicate all available resources to complete the
review of the comments received, and, as expeditiously as possible, to propose for notice and
comment a rule banning all devices that turn legal weapons into machineguns,” available at
https://www.whitehouse.gov/presidential-actions/presidential-memorandum-applicationdefinition-machinegun-bump-fire-stocks-similar-devices.
53
Exhibit A, Pg. 56

F.

The Akins Accelerator Difference

There is a fundamental difference in the manner in which the Akins Accelerator works
versus a bump-fire-device. 67 The Government had previously described the function of the
Akins Accelerator in a brief filed in Federal Court.
To operate the Akins Accelerator, the shooter pulled the trigger one time,
initiating an automatic firing sequence, which in turn caused the rifle to recoil
within the stock, permitting the trigger to lose contact with the finger and
manually reset (move forward). Springs then forced the rifle forward in the stock,
forcing the trigger against the finger, which cause the weapon to discharge the
ammunition until the shooter released the constant pull the ammunition is
exhausted. Put another way, the recoil and spring-powered device cause the
firearm to cycle back and forth, impacting the trigger finger, which remained
rearward in a constant pull, without further impact by the shooter, thereby
creating an automatic firing effect.
See Exhibit 25. (Emphasis added).
However, as the video (see Exhibit 28) and Expert Vasquez’s Declaration (see Exhibit
32) reflect, a single pull of the trigger on a firearm equipped with a bump-fire-device does not
cause the firearm to cycle back and forth automatically. In order to have the firearm cycle and
fire another round, mechanical input from the shooter is required. The shooter must both pull the
trigger to the rear and push forward on the fore end of the firearm. Absent any additional input in
a forward direction by the shooter, the firearm fires only a single round, even where the trigger is
continuously held to the rear. Perhaps the description is best stated by the Government’s own
brief. “While the shooter receives an assist from the natural backfire of the weapon to accelerate
subsequent discharge, the rapid fire sequence in bumpfiring is contingent on shooter input,

67

While FPC do not agree that an Akins Accelerator constitutes a machinegun, they
acknowledge the 11th Circuit’s opinion in Akins v. U.S., 312 Fed.Appx. 197 (11th Cir. 2009) and
assume that court’s holding for the purposes of this analysis.
54
Exhibit A, Pg. 57

rather than mechanical input, and thus it cannot shoot ‘automatically’.” See Exhibit 25.
(Emphasis added).
As is clearly demonstrated in the video, Expert Vasquez’s Declaration and by the
Government’s own argument, bump-stock-devices are only capable of being fired in a rapid
manner 68 when the shooter him or herself adds mechanical input with a forward push on the fore
end of the firearm; however, such affirmative action by the shooter does not result in the bumpstock-device turning the firearm into a machinegun. Otherwise, Jerry Miculek and others will be
banned by the implementation of the NPR.

V.

ATF’S PROPOSAL IS OVERLY VAGUE AND CONTRADICTORY
ATF’s proposed regulation is overly vague and potentially encapsulates a number of

firearms and other products 69 that are commercially available.
Notably, ATF’s proposed definition includes
“..devices that allow a semiautomatic firearm to shoot more than one shot with a
single pull of the trigger by harnessing the recoil energy of the semiautomatic
firearm to which it is affixed so that the trigger resets and continues firing without
additional physical manipulation of the trigger by the shooter.”
83 Fed. Reg. 13457. This language could incorporate a variety of triggers that are currently on
the market, which are lawfully possessed and utilized. Utilizing the same flawed logic ATF used
to turn a bump-stock-devices into a machine gun, ATF would merely need to assert that by
68

As discussed supra throughout Section IV. and in the Declaration of Expert Vasquez, this still
requires the trigger to be released, reset, and pulled completely rearward, before a subsequent
round is discharged; thereby, requiring two separate and distinct functions of the trigger, which
precludes any finding that the device is a machinegun or otherwise causes the firearm to which it
is attached to fire “automatically”.
69
As discussed supra, beyond regulating bump-stock-devices, it would also seemingly include,
rubber bands, belt loops, fingers, “slamfire” shotguns and firearms, Gatling guns, triggers, and
other devices (e.g. Hellfire trigger mechanisms).
55
Exhibit A, Pg. 58

placing forward pressure on the gun while holding the trigger to the rear and allowing the recoil
energy of the firearm to move the firearm enough to reset the trigger, that the trigger could
constitute a bump-stock-device, resulting in a variety of products designed for the competition
shooter to be banned overnight. Likewise, as discussed supra in Section IV., the technique of
bump firing only requires the use of one’s finger – as admitted by ATF in numerous court filings
– thereby resulting in ATF’s ability to contend that fingers, in and of themselves, are bumpstock-devices under the NPR. Moreover, the proposal could also apply to everything from rubber
bands and belt loops to slamfire shotguns and firearms.
Such interpretations would leave thousands of gun owners unsure as to the status of their
particular firearm, device, or even finger, creating an influx of requests for determinations 70
from ATF and making compliance with the proposed regulation the equivalent of navigating a
minefield without proper guidance. Moreover, as discussed infra in Section II, it raises a plethora
of constitutional issues in relation to the Second and Fifth Amendment and Article I, Section 9,
Clause 3 of the U.S. Constitution.
Even if one were to set the vagueness issues aside, the NPR is contradictory as it
contends that bump-stock-devices must be outlawed, while permitting rubber bands, belt loops
and fingers, which operate in an identical manner as bump-stock-devices. Specifically, in the
NPR, ATF contends that bump-stock-devices can “mimic automatic fire when added to
semiautomatic rifles” which Congress sought to outlaw (83 Fed. Reg. 13447); yet, thereafter, in
Alternative 2 (83 Fed. Reg. 13454), declares that “individuals wishing to replicate the effects of
bump-stock-type devices could also use rubber bands, belt loops, or otherwise train their trigger
70

Such determinations would be of questionable value given ATF’s contention in the NPR that it
can overturn its own determination on a whim or to appease politicians by utilizing interpretive
jiggery-pokery.
56
Exhibit A, Pg. 59

finger to fire more rapidly.” As discussed supra in Section IV. and the video exhibits specified
therein, individuals can bump fire factory semi-automatic firearms with rubber bands, belt loops,
and their fingers and some shooters, like Jerry Miculek, can not only shoot faster than an
individual employing a bump-stock-device but can shoot far more accurately. Thus, this entire
NPR is contradictory to its stated purpose and underlying authority.

VI.

ATF FAILED TO CONSIDER VIABLE AND PRECEDENTIAL
ALTERNATIVES
In the proposal, ATF offers three alternatives. See 83 Fed. Reg. 13454. While FPC fully

supports ATF moving forward under Alternative 1, 71 to the extent that ATF decides to move
forward with some form of rule – despite the major constitutional, statutory, precedential and
procedural issues presented by this rulemaking – there are viable alternatives, not previously
considered, that would mitigate some of the constitutional and other issues.
A.

FPC Supports “Alternative 1”

FPC fully support ATF not taking any further action in this rulemaking proceeding.
Moreover, as discussed throughout this Comment, ATF is foreclosed – constitutionally,
statutorily, precedentially and procedurally – from taking any action as described in the NPR. 72

B.

The Amnesty Alternative

Pursuant to Section 207(d) of 82 Stat. 1235, also known as the Gun Control Act of 1968,
71

“Alternative 1 – No change alternative. This alternative would leave the regulations in place as
they currently stand. Since there would be no changes to regulations, there would be no cost,
savings, or benefits to this alternative.”
72
To the extent ATF ignores the many issues raised in this and other comments, and moves
forward with a final rule, FPC will likely seek judicial relief to invalidate and enjoin the
enforcement of any final rule.
57
Exhibit A, Pg. 60

(see Exhibit 19), the Attorney General 73 has the power to establish amnesty periods for up to
ninety days. In fact, an amnesty was previously held between November 2, 1968, to December 1,
1968 and ATF promulgated a regulation – 26 C.F.R. § 179.120, entitled “Registration of
Firearms” (see Exhibit 20) – which established the amnesty and procedures relating to the
registration of unregistered NFA firearms. Moreover, as discussed infra in Section VI., C., ATF
more recently provided a seven-year registration and amnesty period for Streetsweepers and
USAS-12 firearms, when it reclassified them under the NFA.
Thus, contrary to ATF’s assertion that “there is no means by which the possessor may
register a firearm retroactively, including a firearm that has been reclassified” (83 Fed. Reg.
13348), the Attorney General can provide for an amnesty so that the 520,000-some-odd
proscribed bump-stock-devices, and all other firearms and devices covered by the NPR, can be
lawfully registered, thereby saving a minimum of $221,494,000.00 in just compensation being
paid out by ATF while imposing its regulatory scheme under the NFA, which proponents of gun
control, such as Senator Feinstein, desire. See Exhibit 21. 74 Given that the primary estimate
suggests that around 520,000 bump-stock-devices are in circulation (not inclusive of other
firearms and devices for which the NPR seemingly applies), the Attorney General should at least
provide for a seven-year amnesty/registration period, as was provided when ATF reclassified the
Streetsweeper and USAS-12 shotguns, which is discussed infra in Section VI., C. Alternatively,
the Attorney General should issue an initial amnesty period of ninety days and provided 50 or
73

While the provision refers to the “Secretary of the Treasury,” the Homeland Security Act of
2002, Pub. L. 107-296, 116 Stat. 2135 (2002), transferred the functions of ATF from the
Department of the Treasury to the Department of Justice, under the general authority of the
Attorney General. 26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(c)(1). Thus, it is now the Attorney
General that has the authority to institute an amnesty.
74
A copy of Senator Feinstein’s proposal
http://www.feinstein.senate.gov/public/index.cfm/files/serve/?File_id=10993387-5d4d-4680a872-ac8ca4359119.
58
Exhibit A, Pg. 61

more applications are received between the 30th and 60th days, the amnesty period should be
extended in increments of ninety days, until such time that less than 50 applications are received
during an extension period.
Furthermore, pursuant to the logical outgrowth doctrine 75 and the numerous issues with
the National Firearms Registration and Transfer Record (“NFRTR”) – especially the deprivation
of due process in civil and criminal proceedings (see Exhibits 6, 21 76 and 22 77 ) – the amnesty
should permit the registration of any unregistered NFA firearm, not just bump-stock-devices and
those items subject to the instant NPR, since such is consistent with the Congress’ intent that all
NFA firearms be registered to the individual possessing them. 78

C.

ATF’s Reclassification of the Streetsweeper and USAS 12 and Seven Year
Registration/Amnesty that Followed

In the alternative, as ATF admits that the NPR is a reclassification of the definition of
machinegun to include bump-stock-devices (83 Fed. Reg. 13448), it must treat the
reclassification equally to how it treated its prior reclassifications of the Streetsweeper and
USAS 12 shotguns, for which it provided a seven-year registration and amnesty period.

75

Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007).
A copy of the article is available at – Joshua Prince, Violating Due Process: Convictions
Based on the National Firearms Registration and Transfer Record When its ‘Files are Missing’,
(Sept. 28, 2008), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2752028.
77
A copy of Eric Larson’s testimony and exhibits of April 3, 1998, before the House Committee
on Appropriations is available online at http://www.nfaoa.org/documents/1998testimony.pdf.
78
See U.S. Senate, Gun Control Act of 1968, Title II-Amendments to the National Firearms Act,
Report No 1501, 90th Cong., 2nd Sess., at 43 (Washington, GPO, 1968), available at
http://www.nfaoa.org/documents/SenateReport1501-GCA1968.pdf, declaring that the Congress
intends that “every [NFA] firearm in the United States should be registered to the person
possessing the firearm.”
76

59
Exhibit A, Pg. 62

In a July 12, 2012, ATF Quarterly Roll Call Lesson Plan, the ATF Firearms Technology
Branch admits that based on ATF’s March 1, 1994 reclassification of the Striker12/Streetsweeper and USAS-12 shotguns, 79 individuals were provided from March 1, 1994
through May 1, 2001 – more than seven years – to register these reclassified NFA firearms. See
Exhibit 23, p. 3.
Accordingly, to the extent ATF moves forward with a final rule, ATF must provide a
seven-year amnesty/registration period for individuals to register their bump-stock-devices.

D.

ATF’s Reclassification of Open Bolt Macs

As discussed by the Savage Comment on pages 3 – 4 80, ATF Ruling 82-8 held that ATF
was reclassifying semi-automatic SM10 and SM11A1 pistols and SAC carbines as machineguns
and as a result of the ruling:
“With respect to the machinegun classification of the SM10 and SM11A1 pistols and
SAC carbines, under the National Firearms Act, pursuant to 26 U.S.C. § 7805(b), this
ruling will not be applied to SM10 and SM11A1 pistols and SAC carbines manufactured
or assembled before June 21, 1982. Accordingly, SM10 and SM11A1 pistols and SAC
carbines, manufactured or assembled on or after June 21, 1982, will be subject to all the
provisions of the National Firearms Act and 27 C.F.R. Part 179.”
Emphasis added.
Thus, as discussed supra in Section III., C., 26 U.S.C. § 7805(b) precludes – and ATF has
acknowledged – ATF’s ability to retroactively reclassify firearms and devices as machineguns
and require their registration and compliance with the NFA. Consistent with Section 7805(b), if

79

See, ATF Rulings 94-1 and 94-2.
See Analysis and Commentary Regarding: Docket Number: ATF 2017R-22 & Bump-StockType-Devices, ID: ATF-2018-0002-31210, Tracking Number: 1k2-93f3-s09b, available
electronically at – https://www.regulations.gov/document?D=ATF-2018-0002-31210, in “Email
013 (Historic Arms) rec 5-29-18”.
80

60
Exhibit A, Pg. 63

ATF reclassifies a firearm or device, it may only require compliance with the NFA in relation to
those firearms and devices that were “manufactured or assembled on or after” the date of its
reclassification ruling. Moreover, the existence of approximately 50,000 of these reclassified
firearms and their lawful possession and transfer absent compliance with the NFA, 81 was
testified to by former ATF Acting Chief of the Firearms Technology Branch Rick Vasquez in
U.S. v. One Historic Arms Model54RCCS, No. 1:09-CV-00192-GET. See Exhibit 27.
Accordingly, ATF is statutorily precluded from applying any final rule in this matter to
any firearms or devices that were “manufactured or assembled” before at least March 29, 2018 –
the date of publication of this NPR in the Federal Register.
Even if, arguendo, ATF were not statutorily prohibited, to ensure equal application of the
law, its past actions and the public reliance thereon, it must likewise permit all firearms or
devices covered by the NPR in this matter to be grandfathered without requisite compliance with
the NFA.

E.

Revision of Proposed Changes to 27 C.F.R. §§ 447.11, 478.11, and 479.11

Although FPC vigorously disputes ATF’s constitutional, statutory, regulatory, procedural
and precedential authority to regulate bump-stock-devices and intends to challenge any final rule
adopting any proposal other than Alternative 1, FPC contends that ATF must limit its proposed
regulatory changes to the definition proposed by Congress in H.R. 4477. 82
In the NPR (83 Fed. Reg. 13457), ATF proposes amending to 27 C.F.R. §§ 447.11,
478.11, and 479.11 “by adding two sentences at the end of the definition to reads as follows:

81
82

Id.
See https://www.congress.gov/bill/115th-congress/house-bill/4477/text.
61
Exhibit A, Pg. 64

Machine gun. * * * For purposes of this definition, the term ‘automatically’ as it modifies
‘shoots, is designed to shoot, or can be readily restored to shoot,’ means functioning as the result
of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a
single function of the trigger; and ‘single function of the trigger’ means a single pull of the
trigger. The term ‘machine gun’ includes bump-stock-type devices, i.e., devices that allow a
semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing
the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and
continues firing without additional physical manipulation of the trigger by the shooter. * * * ”
As such, ATF’s proposal, as discussed throughout this Comment, is far more
encompassing than the more limited definition proposed by Congress in H.R. 4477. Accordingly,
ATF should revise its proposal to be consistent with the Congress’ proposal; whereby, the
definition of machinegun in 27 C.F.R. §§ 447.11, 478.11, and 479.11 could, at the absolute most,
be amended by adding one sentence at the end of the definition to read as follows:
Machine gun. * * * For purposes of this definition, the term ‘automatically’ as it modifies
‘shoots, is designed to shoot, or can be readily restored to shoot,’ means a device that—
(1) attaches to a semiautomatic rifle (as defined in section 921(a)(28) of title 18, United
States Code); (2) is designed and intended to repeatedly activate the trigger without the
deliberate and volitional act of the user pulling the trigger each time the firearm is fired;
and (3) functions by continuous forward pressure applied to the rifle’s fore end in
conjunction with a linear forward and backward sliding motion of the mechanism
utilizing the recoil energy when the rifle is discharged.

62
Exhibit A, Pg. 65

VII.

POLICY CONSIDERATIONS DO NOT SUPPORT ATF’S PROPOSED RULE

In arguing that bump-stock devices are or create a machinegun, the proposed rule
demonstrates a complete reversal of prior policy – prior policy, as discussed supra in Section 1.,
A., that ATF has failed to provide in the rulemaking docket and for which the absence of,
precludes meaningful review and comment by interested persons.
But even if numerous procedural irregularities did not bar ATF from promulgating a final
rule in this proceeding, and neither the U.S. Constitution nor the scope of statutory authority
served as an obstacle, there are ample reasons ATF should not proceed with its proposed rule.
First, ATF's assumptions lack statistical validity. Second, ATF’s reasoning relies on false
premises. Third, the costs of the proposed rule are much greater than ATF acknowledged.

A.

ATF’s Assumptions Lack Statistical Validity

As pertinent to a statistical inquiry, the overarching basis asserted in the NPR – the
putative use of a bump-stock-device in the Law Vegas shooting – demands investigation and
reflects that at a maximum, 83 only one instance exists 84, where a bump-stock-device was
utilized, while acknowledging that there is no quantifiable benefit to the proposal. Thus, to the
extent ATF can proceed in this matter, the first, and most vital, issue is whether ATF identified a
statistically significant basis to conclude that the existing system of regulation should be revised,
especially in light of the absence of a quantifiable benefit. As discussed at length supra in
Sections I., B. and IV., D., ATF relies solely on prior “public comments” – for which, those
83

As discussed supra in Section IV., D., FPC dispute that there exists any evidence even
suggesting that a bump-stock-device was utilized in the Las Vegas incident and demands, given
ATF’s lack of candor to the courts, Congress and the public, that any such contention by ATF be
dismissed, in the absence of independently, verifiable evidence in support.
84
Which to date has neither been confirmed by ATF or FBI. See Fn. 4, supra.
63
Exhibit A, Pg. 66

“public comments” may be proxies of ATF 85 – to suggest that a bump-stock-device was utilized
in Las Vegas (83 Fed. Reg. 13454), while thereafter declaring that bump stock devices “could be
used for criminal purposes.” 83 Fed. Reg. 13455 (emphasis added). The second issue, with
respect to estimating the costs that would be imposed by ATF’s proposed rule, ATF fails to
address the just compensation that is necessary for the proposed rule, as is discussed supra in
Section II., B., 2.
Despite the number of bump-stock-devices grossly exceeding 520,000 (when including
rubber bands, belt loops, fingers, triggers, Gatling guns, and “slamfire” shotguns and firearms),
ATF’s entire rulemaking effort is apparently premised on no more than one unverified instance
where a bump-stock-device was alleged to have been utilized unlawfully, even though such
products have been on the market for over a decade. Even with ATF’s too-low estimate of bumpstock-devices in commerce, one alleged instance represents such a minute, statisticallyinsignificant fraction that no statistically-valid prediction could even be made about this putative
problem. ATF has failed to make available in the docket any information regarding the Las
Vegas shooting that would permit meaningful inquiry into whether it is at all representative of
the problem ATF claims now requires attention, or that the NPR reflects a substantive, tailored,
germane, or proportional response to any such problem.
If, nonetheless, ATF were to go forward with its effort to formulate and impose a new
rule, whatever benefits ATF claims, would seem to require discount to reflect the sole instance in
which there is any reason to believe the new rule would provide additional protection. That is,
the marginal benefit of added restrictions would be on the order of 1/520,000 or, stated

85

See Section IV., D., and Fn. 56, supra.
64
Exhibit A, Pg. 67

otherwise, the marginal cost needs to be multiplied by a factor of at least 520,000/1 to be
measured against the total benefit.
*

*

*

There is no statistically-significant (if any at all) evidence of the problem ATF purports to
address with the proposed rule, even if one credits the sole anecdote. In weighing costs and
benefits of the proposed rule, ATF must discount the benefits (or multiply the costs) to reflect the
sole example from the large population of individuals who own or have access to bump-stockdevices and the fact that based on ATF’s own proposal, individuals would still be able to bump
fire with rubber bands, belt loops and their fingers.

B.

ATF Relies On Multiple False Premises

As discussed at length supra in Sections IV., D. and E., ATF’s proposed rule is based on
multiple false premises. Other than one unsupported allegation, there is no evidence – let alone
substantive statistical evidence – of misuse of bump-stock-devices. Moreover, as made explicitly
clear by the video (Exhibit 28) and Vasquez’s Expert Declaration, a bump-stock-device does not
self-act, self-regulate, nor harnesses energy and thus cannot meet the statutory definition of a
machinegun. Thus, ATF has failed to explain, let alone demonstrate, the need for a change in
regulations or shown sufficient authority to implement its desired changes. And perhaps worse,
ATF appears to be purposely misleading the public on the actual function of bump-stockdevices, which cannot be countenanced.

65
Exhibit A, Pg. 68

CONCLUSION
ATF has, once again, made a mockery of rulemaking proceedings by engaging in
numerous improper and bad-faith tactics that deny meaningful public participation. As shown in
these and other comments, the instant NPR is terminally-ridden with procedural defects. As a
result, ATF cannot promulgate any final rule that hopes to survive judicial review without
starting anew. And ATF’s proposed legislation-by-fiat stretches far beyond its statutory
authority, ignores important separation of powers principles, and attempts to usurp that which is
solely the domain of Congress. But even if ATF were to somehow overcome those fundamental
problems, the fact remains that its proposal is built upon a statistically-invalid assumption, a false
premise, and flawed policy arguments. To be sure, ATF failed to quantify any benefit from the
proposed rule, and substantially undercounted the cost it would impose, including a failure to
consider (as is its duty) all related costs. The proposed rule is demonstrably un-workable, and
many less-burdensome alternatives exist to address any legitimate concerns that might be
identified in a proper and procedurally-sound rulemaking.
Finally, even if ATF did initiate a new, proper, and procedurally-sound proposed
rulemaking about bump-stock devices, and even if there existed sufficient statutory authority and
good cause to issue such a rule, there is ample reason to question whether a proposed
reclassification of bump-stock-devices as machineguns is consistent with the U.S. Constitution,
including but not limited to the Second and Fifth Amendments, as well as Article I, Section 9.
ATF fails completely to consider, let alone provide for, the just compensation that would be due
to those who would be affected by its proposed rule. Indeed, as discussed above, the proposed
rule is unconstitutional, both facially and as applied to law-abiding people who possess and own
devices subject to the ATF’s proposed rule.

66
Exhibit A, Pg. 69

For all of the reasons set forth above, the NPR should be withdrawn and summarily discarded,
or, in the alternative, ATF should elect Alternative 1 and abandon the proposed rulemaking in its
entirety.
Respectfully submitted on behalf of
Firearms Policy Coalition and
Firearms Policy Foundation
______________________________
Joshua Prince, Esq.
Chief Counsel
______________________________
Adam Kraut, Esq.
Attorney
Firearms Industry Consulting Group,
a Division of Civil Rights Defense Firm, P.C.
646 Lenape Road
Bechtelsville, PA 19505
888-202-9297
610-400-8439 (fax)
www.FirearmsIndustryConsultingGroup.com
June 19, 2018

67
Exhibit A, Pg. 70

Exhibit List
Exhibit 1:

FICG Expedited FOIA dated March 30, 2018

Exhibit 2:

LVMPD Preliminary Investigative Report, January 18, 2018

Exhibit 3:

Video: Iraqveteran8888, Worlds Fastest Shooter vs Bump Fire! – Guns
Reviews, YouTube, October 13, 2014

Exhibit 4:

Video: Miculek.com, AR-15 5 shots in 1 second with fastest shooter ever,
Jerry Miculek (Shoot Fast!), YouTube, June 20, 2013

Exhibit 5:

Carl Bussjaeger, [Update] Bumbling Machinations on Bump Stocks?,
April 2, 2018 and [Updated] Bump-fire Rule: “Comments Not Accepted”,
March 30, 2018

Exhibit 6:

Motion in Limine, United States v. Friesen, CR-08-041-L (W.D. Okla.
Mar. 19, 2009)

Exhibit 7:

John Bresnahan and Seung Min Kim, Attorney General Eric Holder held
in contempt of Congress, June 28, 2012

Exhibit 8:

Testimony of Gary Schaible, United States v. Rodman, et al., CR-1001047-PHX-ROS

Exhibit 9:

Senator Diane Feinstein, Feinstein: Congress Shouldn’t Pass the Buck on
Bump-Fire Stocks, October 11, 2017

Exhibit 10:

ATF Determinations

Exhibit 11:

Video: Shooting Videos, Rapid manual trigger manipulation (Rubber
Band Assisted), YouTube, December 14, 2006

Exhibit 12:

Video: StiThis1, AK-47 75 round drum Bumpfire!!!, YouTube, September
5, 2011

Exhibit 13:

Video: ThatGunGuy45, ‘Bump Fire’ without a bump-fire stock, courtesy
of ThatGunGuy45, YouTube, October 13, 2017

Exhibit 14:

Video: M45, How to bumpfire without bumpfire stock, YouTube, October
8, 2017

Exhibit 15:

Verified Declaration of Damien Guedes

Exhibit 16:

Verified Declaration of Matthew Thompson

Exhibit A, Pg. 71

Exhibit 17:

Video: Vice News, Meet One Of The Analysts Who Determined That
Bump Stocks Were Legal, YouTube, October 11, 2017

Exhibit 18:

Video: Fastest Shooter OF ALL TIME! Jerry Miculek | Incredible
Shooting Montage, DailyMotion, 2014

Exhibit 19:

Gun Control Act of 1968, 82 Stat. 1235

Exhibit 20:

26 C.F.R. § 179.120

Exhibit 21:

Joshua Prince, Violating Due Process: Convictions Based on the National
Firearms Registration and Transfer Record When its ‘Files are Missing’,
September 28, 2008

Exhibit 22:

Eric Larson’s testimony and exhibits of April 3, 1998, before the House
Committee on Appropriations

Exhibit 23:

ATF Quarterly Roll Call Lesson Plan, July 12, 2012

Exhibit 24:

Eric M. Larson, How Firearms Registration Abuse & the “Essential
Operational Mechanism” of Guns May Adversely Affect Gun
Collectors, Gun Journal, March 1998

Exhibit 25:

U.S. Government’s Brief in Support of Cross Motion For Summary
Judgment And In Opposition to Plaintiff’s Motion For Summary
Judgment, Freedom Ordinance Mfg. Inc., v. Thomas E. Brandon, Case
No. 3:16-cv-243-RLY-MPB

Exhibit 26:

Video: Molon Labe, hogan 7 m16.wmv, YouTube, October 25, 2011

Exhibit 27:

Testimony of ATF Senior Analyst Richard Vasquez in U.S. v. One
Historic Arms Model54RCCS, No. 1:09-CV-00192-GET

Exhibit 28:

Video: Adam Kraut Esq. and Patton Media and Consulting, Bump Stock
Analytical Video, June 14, 2018

Exhibit 29:

National Firearms Act: Hearings Before the Committee on Ways and
Means, H.R. Rep. No. 9066, 73rd Cong. 2nd Sess. April 16, 18, and May
14, 15, and 16 1934

Exhibit 30:

Testimony of Police Chief J. Thomas Manger

Exhibit 31:

ProPublica, Workers’ Comp Benefits: How Much is a Limb Worth?,
March 5, 2015

Exhibit 32:

Verified Declaration of former ATF Acting Chief of FTB Rick Vasquez

Exhibit A, Pg. 72

Exhibit 33:

Verified Declaration of Jonathan Patton of Patton Media and Consulting

Exhibit 34:

FICG’s Letter on Behalf of FPC to Acting Director Brandon

Exhibit 35:

FPC’s Letter in Opposition to the ANPR of January 25, 2018

Exhibit A, Pg. 73

Exhibit 1
(FICG Expedited FOIA)

Exhibit A, Pg. 74

FIREARMS INDUSTRY CONSULTING GROUP
A Division of Civil Rights Defense Firm, P.C.

Joshua Prince
Adam Kraut

Phone: [phone]

Jorge Pereira

Fax: [phone]

March 30, 2018
Stephanie M. Boucher
Disclosure Division
Bureau of Alcohol, Tobacco, Firearms and Explosives
99 New York Avenue, NE
Washington, DC 20226
RE: Firearms Policy Foundation (FPF) and Firearms Industry Consulting Group (FICG) vs. U.S.
Department of Justice - Bureau of Alcohol, Tobacco, Firearms and Explosives - Bump Stock
Rulemaking
Docket Number: ATF-2018-0001
EXPEDITED Freedom of Information Act (FOIA) Request
VIA EMAIL: [e-mail]
Dear Stephanie Boucher,
Pursuant to the federal Freedom of Information Act, 5 U.S. Code § 552 (hereinafter "FOIA"), I
submit the following request for documents from the Bureau of Alcohol, Tobacco, Firearms and
Explosives (hereinafter "ATF"). If the requested documents are not available from ATF, I
respectfully request that you forward this request to the appropriate agency that maintains the
requested records or advise me of the identity of any such agency.
Status of Requester: I am attorney and scholar of firearms laws and related issues. I have been
published by the Pennsylvania Bar Institute in a number of publications for attorneys on firearms
law issues and maintain an active blog on firearms law issues at
http://blog.princelaw.com/category/firearms-law/. As a result, I ask that you classify this request as
made by a freelance journalist and I have been previously found, on numerous occasions, to be a
freelance journalist for purposes of FOIA by ATF, FBI and DDTC. In the alternative, I am
requesting a fee waiver. This waiver is applicable under the Freedom of Information Act of 1986.
It specifies, "[a] fee waiver or reduction can only be granted if the information furnished to the
requester is likely to contribute significantly to the public understanding of the operations or
Firearms Industry Consulting Group® (FICG®), a division of Civil Rights Defense Firm, P.C. • 646 Lenape Road, Bechtelsville, PA 19505 • 888-202-9297
FirearmsIndustryConsultingGroup.com • © 2007 - 2016 CivilRightsDefenseFirm.com
Your PA Firearms Lawyer® and PA Gun Attorney®. Also home to Armor Piercing Arguments®!

Exhibit A, Pg. 75

activities of the government and not primarily in the commercial interest of the requester." As this
request is in relation to issues of public importance that will significantly assist the public in
understanding the ATF’s position in relation to its current rulemaking regarding bump stocks (ATF
2017R-22, RIN 1140-AA52, Fed. Register No. 2018-06292 https://www.regulations.gov/document?D=ATF-2018-0002-0001), a fee waiver is appropriate.
Although Firearms Industry Consulting Group ("FICG") has been retained by Firearms Policy
Foundation ("FPF"), a 501(c)3 non-profit public benefit organization, in relation to this rulemaking,
as both FPF and FICG intend to publicly post all documents received in response to this FOIA,
any response will be provided to the public and is for the benefit of the public.
While I believe that my purposes fall directly within the standard set forth for a freelance
journalist or, alternatively, for a "Fee Waiver," if you find that my purposes do not, I will agree to
pay the appropriate fees up to $100.00. If you estimate that the cost will exceed $100.00, please
advise me the estimated costs exceeding $100, and I will make a decision on whether to proceed.
Nonetheless, even with my agreement to pay, I retain the right to appeal any decision based on
the fee waiver; and if successful, the return of any money, which was inappropriately paid, in
relation to this FOIA.
Expedited Request: Pursuant to 5 U.S.C. § 552, I am requesting expedited review of this FOIA, as
ATF has entered into rulemaking relative to the requested documents (ATF 2017R-22, RIN 1140AA52, Fed. Register No. 2018-06292 - https://www.regulations.gov/document?D=ATF-20180002-0001), for which individuals, including myself, only have until June 27, 2018 to respond As
.
ATF has failed to include the requested documents in the docket and the absence of the
requested documents would deny the public - including FPF, FICG, and myself - due process and
the ability to formulate legal arguments and meaningful opportunity to participate in the
rulemaking process, this request is proper for expedited review and processing. If the requested
documents are not provided promptly, there will be an inadequate opportunity to review them
and formulate meaningful comments before the deadline of June 27, 2018. Consistent with 5
U.S.C. § 552(a)(6)(E)(ii), I am requesting, as required, that a determination be made within 10
days.
Subject Matter of Request: This is a request for all ATF determinations relative to devices referred
to as "bump stocks" and "bump-fire stocks" by ATF in its proposed rulemaking (ATF 2017R-22,
RIN 1140-AA52, Fed. Register No. 2018-06292 - https://www.regulations.gov/document?D=ATF2018-0002-0001), as well as, all ATF Form 9310.3A "Correspondence Approval and Clearance"
forms relative to each determination, and any versions or drafts of the determinations, which were
different than the final determination. The use of the word "determinations" shall be understood to
mean any correspondence, whether in electronic or paper form, by ATF to any person, which
shall include any individual, Member of Congress, corporation, limited liability company, and
partnership, regarding the lawfulness or unlawfulness of any bump stock or bump-fire stock
device, whether a sample device was submitted or not to ATF. A copy of two such known
determinations are attached hereto as Exhibit A.
Temporal Scope of Request: Please limit your search for responsive documents to the period
January 1, 2000 to the present.
Request for "Vaughn Index": In the event all or any part of an otherwise responsive document is
withheld subject to a claim that one or more FOIA exemptions apply, please provide an index
identifying the document or part thereof, by author(s), addressee(s), date, subject matter, and the
Firearms Industry Consulting Group® (FICG®), a division of Civil Rights Defense Firm, P.C. • 646 Lenape Road, Bechtelsville, PA 19505 • 888-202-9297
FirearmsIndustryConsultingGroup.com • © 2007 - 2016 CivilRightsDefenseFirm.com
Your PA Firearms Lawyer® and PA Gun Attorney®. Also home to Armor Piercing Arguments®!

Exhibit A, Pg. 76

specific exemption asserted as a basis for failing to produce the complete document. If a
document is withheld only in part, please mark the redacted document to indicate the deletion.
Waiver of Inspection: If search and copying costs are not estimated to exceed $100.00, please
send a copy of the documents to me at the address referenced below.
Request for Timely Action: As mandated by FOIA, 5 U.S.C. § 552(a)(6)(A)(i), I request your reply
within twenty business days. The requested documents relate to a matter of current public
concern so that time is of the essence. In the event you have any questions concerning this
request, please contact me as soon as possible. I would be pleased to clarify any perceived
ambiguity informally or to discuss ways to narrow my request so as to ensure a timely response.
Contact Information: Please direct all communications to me at:
Joshua Prince
646 Lenape Rd
Bechtelsville, PA 19505
888-202-9297 ext 81114
[e-mail]
Certification: I certify everything in this request, including request for expedited review and
processing to true and correct to the best of my knowledge and belief.
Thank you in advance for your attention to this matter.
Yours truly,
Firearms Industry Consulting Group

Joshua G. Prince
[e-mail]
jgp/web
Matter no. 10377

Firearms Industry Consulting Group® (FICG®), a division of Civil Rights Defense Firm, P.C. • 646 Lenape Road, Bechtelsville, PA 19505 • 888-202-9297
FirearmsIndustryConsultingGroup.com • © 2007 - 2016 CivilRightsDefenseFirm.com
Your PA Firearms Lawyer® and PA Gun Attorney®. Also home to Armor Piercing Arguments®!

Exhibit A, Pg. 77

c:::::~~:~:~:::

regulations.gov
Your Voice in Federal Decision-Making

Bump-Stock-Type Devices
iii View all documents and comments in this Docket

Docket Folder Summary

Docket ID: ATF-2018-0002
RIN : 11 40-AA52

Agency: Alcohol Tobacco Firearms and Explosives Bureau (ATF)

Impacts and Effects: None

CFR Citation: 27 CFR 478,27 CFR 479

Parent Agency: Department of Justice (DOJ)
Priority: Economically Significant

+ View More UA and Regulatory Plan Information and Docket Details

Primary Documents

II

View All (1 )

Bump-Stock Type Device
Proposed Rule

Posted: 03/29/2018

Comment Now!
ID: ATF-2018-0002-0001

DueJun27, 201811 :59 PM ET

Supporting Documents
No documents available.

Exhibit A, Pg. 78

Exhibit 2
(LVMPD Preliminary Investigative Report)

Exhibit A, Pg. 79

Joseph Lombardo, Sheriff

FORCE INVESTIGATION TEAM

Lieutenant Dennis O'Brien
Sergeant Jerry MacDonald
Detective Trever Alsup
Detective Marc Colon
Detective Breck Hodson
Detective Craig Jex
Detective Jason Leavitt
Detective Joseph Patton
Detective Blake Penny
HOMICIDE

Lieutenant Dan McGrath
Sergeant John Harney
Sergeant Matt Sanford
Sergeant Jon Scott
Detective Maureen Bogatay
Detective Dolphis Boucher
Detective Chris Bunn
Detective Lora Cody
Detective Mitchell Dosch
Detective Jarrod Grimmett
Detective John Hoffman
Detective Ryan Jaeger
Detective Gary King
Detective Kristen Long
Detective Gerald Mauch
Detective Jason McCarthy
Detective Fred Merrick
Detective Terri Miller
Detective Cliff Mogg
Detective Robert Ochsenhirt
Detective Tate Sanborn
Detective Tod Williams

LVMPD Preliminary Investigative
Report
1 October I Mass Casualty Shooting
LVMPD Event:
Division of Occurrence:
Date of Incident:
Time of Call:
Incident Locations:

171 001-3519
Tourist Safety Division
10-01-2017
2205 hours
Mandalay Bay Resort and Casino
3950 S. Las Vegas Blvd.
Las Vegas, NV 89119
Las Vegas Village
3901 S. Las Vegas Blvd.
Las Vegas, NV 89119

Suspect:

Stephen Paddock

Date of report: 01-18-18
Submitted by: Detective Trever Alsup, P# 5782
Signature:

>

~ ~74h
MacDonald, P# 4660

Approved by. Lieutenant Dennis
Signature:

Q.:B.ri.en,

~;C "?L-

P# 6192

Exhibit A, Pg. 80

TABLE OF CONTENTS
I.

INTRODUCTION .............................................................................................................3

II.

INCIDENT DETAILS ........................................................................................................3

III.

VICTIMS ........................................................................................................................ 15
Deceased ................................................................................................................ 15
Living Victims .......................................................................................................... 23

IV.

SUSPECT ...................................................................................................................... 23

V.

WITNESS INTERVIEWS ............................................................................................... 24

VI.

SCENE DESCRIPTIONS ............................................................................................... 31
Route 91 Venue ...................................................................................................... 31
Mandalay Bay 32nd Floor......................................................................................... 36
100-Wing Hallway ................................................................................................... 37
Room 32-135 .......................................................................................................... 37
Foyer Inside Room 32-135 ...................................................................................... 37
West Bedroom (Master Bedroom)........................................................................... 38
Sitting Area.............................................................................................................. 38
Decedent Stephen Paddock.................................................................................... 39
Bar/Kitchenette........................................................................................................ 39
Living Room ............................................................................................................ 40
Room 32-134 .......................................................................................................... 40

VII.

EVIDENCE RECOVERY ............................................................................................... 41
Physical Evidence ................................................................................................... 41
DNA ........................................................................................................................ 45
Digital ...................................................................................................................... 45

VIII.

SUSPECT AUTOPSY .................................................................................................... 48

IX.

INVESTIGATION ........................................................................................................... 49
Mandalay Bay Hotel Room...................................................................................... 49
Paddock's Vehicle ................................................................................................... 50
Paddock's Mesquite Residence .............................................................................. 51
Paddock's Reno Residence .................................................................................... 51
Search Warrants and Legal Notices ........................................................................ 51
Law Enforcement Tips and Leads ........................................................................... 52

X.

PRELIMINARY FINDINGS FROM THE 1 OCTOBER INVESTIGATION....................... 52

Appendix A ............................................................................................................................... 54

Exhibit A, Pg. 81

I.

INTRODUCTION

On October 1, 2017, over 22,000 people came together to enjoy a country music festival in Las
Vegas, Nevada. On the third and final night of the festival, a lone gunman opened fire into the
crowd from the 32nd floor of the Mandalay Bay Resort and Casino. The gunfire continued for
over ten minutes, resulting in the deaths of 58 innocent concert goers and injuring more than
700. With law enforcement closing in, the suspect took his own life.
It is not standard practice for the Las Vegas Metropolitan Police Department (LVMPD) to issue
an investigative overview related to an open case. Due to the magnitude of this investigative
response and the number of victims associated with this incident, Sheriff Joseph Lombardo felt
it was important to author an overview of all investigative work accomplished in the aftermath of
1 October. This report is not intended to be a comprehensive and final account of the facts and
evidence gathered but rather an overview of the investigation. The investigation into this incident
is on-going and a full comprehensive report will be released upon its completion.
This report will reflect the number and identities of victims known to the Las Vegas Metropolitan
Police Department to date. This information is vital in order to grant assistance, properly
categorize the level of crime and most importantly, honor those who fell prey to this horrific act
of violence.
The Las Vegas Metropolitan Police Department would like to recognize and thank all our local,
state and federal law enforcement partners for their assistance with this investigation.
II.

INCIDENT DETAILS

On October 1, 2017 Stephen Paddock began shooting into the crowd attending the Route 91
Music Festival from his hotel room on the 32nd floor of the Mandalay Bay. As a result, 58 people
died and over 700 were injured. An extensive, joint investigation involving the LVMPD and the
Federal Bureau of Investigation (FBI) began immediately after the incident. Every facet of
Paddock’s life was explored.
At the time of the incident Paddock was 64 years old. He owned residences in Mesquite and
Reno, Nevada and lived with his girlfriend, Marilou Danley. Paddock had limited law enforcement
contact and no criminal history.
Paddock embarked on numerous international trips beginning in 2012, these included trips to
Europe, Asia and South America. Most of Paddock’s international travel was unaccompanied.
Paddock also took multiple cruises with destinations in the Bahamas, Alaska and Mexico.
Through interviews with Paddock’s relatives and acquaintances investigators learned Paddock
lived a seemingly normal life. He was married at least once and divorced. He worked as an
accountant and in the family real estate business.

Exhibit A, Pg. 82

From 1982 through September of 2016, Paddock purchased 29 firearms. These purchases
consisted of handguns, shotguns and one rifle. From October 2016 through September 2017,
Paddock purchased over 55 firearms. Most of the firearms purchased from 2016 through 2017
were rifles in various calibers along with over 100 firearm related items through numerous
retailers. The firearm related items included scopes, cases, bump stocks and ammunition.
The Ogden
On September 17, 2017, Paddock checked into The Ogden where he was booked through
September 28, 2017 which overlapped his reservation at Mandalay Bay. The Ogden is a
condominium complex located in downtown Las Vegas, Nevada. Paddock stayed in three
different units during this time.
Paddock’s stay at The Ogden coincided with the Life is Beautiful music festival. Similar to the
Route 91 Music Festival, the Life is Beautiful event was held in an open air venue from
September 22, 2017, through September 24, 2017.
While staying at The Ogden, Paddock exhibited behavior which was similar to his time spent at
Mandalay Bay. Paddock left for long periods of time, returning to Mesquite, Nevada, flying to
Reno, Nevada and traveling to Arizona. Paddock was observed numerous times gambling at
downtown Las Vegas casinos. Paddock was also observed moving numerous suitcases from
his vehicle to the various units he rented.
Mandalay Bay Hotel & Casino
On Monday, September 25, 2017, Paddock checked into room 32-135 of the Mandalay Bay
Hotel and Casino with a scheduled check-out date of October 2, 2017. On Friday September 29,
2017, Paddock checked into room 32-134 which connected with room 32-135 via connecting
doors.
From September 25, 2017, through October 1, 2017, Paddock transported multiple suitcases to
his room on several occasions. Paddock also left the Mandalay Bay on multiple occasions for
long periods of time, often returning to Mesquite, Nevada.

Exhibit A, Pg. 83

Route 91 Harvest Festival

October 1, 2017, was the final day of the Route 91 Harvest Festival held at the Las Vegas Village
concert venue located at 3901 S. Las Vegas Boulevard. The site is an open air concert venue
approximately 15 acres in size. It is bordered by Las Vegas Boulevard to the west, Reno Avenue
to the north, Giles Street to the east and Mandalay Bay Road to the south.
The festival was a three day country music concert with multiple entertainers. On October 1,
2017, the concert began at 1500 hours. Jason Aldean, the last performer, was scheduled to take
the main stage at 2140 hours. Over 22,000 people were attending the final day of the festival.
Incident
On October 1, 2017, at approximately 2118 hours, Mandalay Bay Security Officer Jesus Campos
was assigned to check several Hotel Service Optimization System (HotSOS)1 alarms from
various rooms inside the hotel. Room 32-129 was the last of the rooms Security Officer Campos
was assigned to check.
Security Officer Campos was on the 30th floor and responded to the 32nd floor via the stairwell in
the north end of the 100 wing. Security Officer Campos attempted to enter the hallway to the
100 wing but the door would not open. He took the stairs to the 33rd floor and used the guest
1

A HotSOS Alarm is triggered by a guest room door that is left ajar for a predetermined amount of time.

Exhibit A, Pg. 84

elevator to access the 32nd floor. Once on the 32nd floor, Security Officer Campos entered the
foyer leading to the stairwell. He discovered an “L” bracket screwed into the door and door frame
which prevented it from opening. Security Officer Campos called his dispatch center with the
house phone located in the foyer to report the discovery. The security dispatch center then called
the engineering section to have the door checked.
Security Officer Campos heard what he described as a rapid drilling sound coming from room
32-135 after he hung up the phone. As he walked down the 100 wing hallway, Campos heard
what he described as automatic gunfire coming from the area of room 32-135 and realized he
had been shot in the left calf. He took cover in the alcove of rooms 32-122 and 32-124 and
utilized both his cellular phone and radio to notify his dispatch he was shot. Security Officer
Campos advised he was shot with a BB or pellet gun. While waiting for other security personnel
to arrive Security Officer Campos continued to hear gunfire coming from the room.
Engineer Stephen Schuck finished fixing a leak in room 62-207 when he was directed to respond
to the 32nd floor reference the bracket preventing the stairwell door from opening. Engineer
Schuck used the service elevator in the 200 wing to access the 32 nd floor. When he arrived on
the 32nd floor, he gathered his tools and equipment and walked from the 200 wing to the 100
wing.
As Engineer Schuck walked up the hallway of the 100 wing, he observed Security Officer
Campos poke his head out of an alcove. Engineer Schuck then heard rapid gunfire coming from
the end of the 100 hallway which lasted approximately 10 seconds. When the gunfire stopped,
he heard Security Officer Campos tell him to take cover. Engineer Schuck stepped into an alcove
and gunfire again erupted down the hallway coming from room 32-135. The gunfire lasted a few
seconds then stopped. The gunfire started again after a brief pause but Engineer Schuck
believed it was directed outside and not down the hallway.
Inside the Las Vegas Village over fifty LVMPD personnel were on overtime assignments for the
Route 91 Harvest Festival. The initial gunshots were heard on an officer’s Body Worn Camera
(BWC). Officers and concertgoers initially believed the gunfire to be fireworks. As Paddock
targeted the concertgoers with gunfire, officers quickly determined they were dealing with an
active shooter and broadcast the information over the radio.
The crowd inside the Las Vegas Village started reacting to the gunfire and Jason Aldean ran off
the stage. Officers and concertgoers began treating victims who were struck by gunfire. They
also tried to get concertgoers out of the venue in a safe manner. Officers determined the gunfire
was coming from an elevated position, possibly from the Mandalay Bay Hotel. Medical personnel
were requested for multiple people struck by gunfire.
As the active shooter incident was occurring, two LVMPD officers were in the security office of
the Mandalay Bay handling a call for service reference two females who were in custody for
trespassing. The officers heard the radio broadcast of gunfire at the Route 91 Harvest Festival.
Both officers, along with security personnel, exited the security office and responded towards
the Las Vegas Village. As they were making their way through the casino, security personnel
advised the officers of an active shooter on the 32nd floor of the hotel.2 The officers then directed
2Information

obtained from LVMPD BWC.

Exhibit A, Pg. 85

security to escort them to that location. The officers and security personnel entered the Center
Core guest elevators and were again advised the shooter was on the 32 nd floor. The officers
made a tactical decision to respond to the 31st floor and take the stairwell to the 32nd floor.
LVMPD officers converged on the Las Vegas Village and Mandalay Bay. Officers formed
multiple Strike Teams and entered the Mandalay Bay from various entrance points. A team of
officers including a Special Weapons and Tactics (SWAT) Operator reached the 32nd floor via
the stairwell in the 100 wing. Officers did not hear gunfire coming from room 32-135. Officers
were able to manually breach the “L” bracket on the stairwell door and gain access to the
hallway. Officers immediately observed a food service cart which had wires running from it to
room 32-134 and prepared themselves for the possibility of an Improvised Explosive Device
(IED). The decision was made to use an explosive breach to make entry into room 32-135.
After a successful breach of the doors to room 32-135, officers entered the room and found
Paddock deceased on the floor. Paddock appeared to have a self-inflicted gunshot wound to the
head. Officers cleared the remainder of the room and observed multiple rifles in various locations
throughout the room as well as hundreds of expended casings. A second explosive breach was
utilized to gain access to room 32-134 through the connecting doors. Immediately after the
breach a SWAT officer negligently discharged his rifle. Officers cleared room 32-134 finding
several rifles in the room.
Officers, medical personnel, and concertgoers continued the evacuation of victims in the Las
Vegas Village venue. Several triage sites were established in the venue and surrounding area.
Injuries ranged from being minor in nature to fatal. Hundreds of wounded were transported to
area hospitals by ambulance and privately owned citizen vehicles.
Sequence of Events
The details listed below were gathered from several different sources3. For the purpose of this
section, the sequence of events will begin on September 25 th when Paddock checked into the
Mandalay Bay and end with the LVMPD officers making entry into Paddock’s room. All times
in this section are approximates based upon different time sources and different time
stamps which were all utilized to document this section of the report. All dates and times
listed below occurred in the year 2017.
On or around September 9th Paddock made his room reservation for a Vista Suite ending in 235
but not a specific floor. On September 20th Paddock was internally4 assigned to room 33-235.
On September 21st Paddock was internally changed to room 32-235. On September 24th
Paddock was assigned to room 32-135.

3

LVMPD Officer Body Worn Cameras; UBER Video; Interviews to include officers, civilians & Mandalay Bay
Employees; Mandalay Bay Video Surveillance; Lock Interrogation Documents; Cell Phone Videos & Records.
4 All internal changes to Paddock’s rooms were done by a Mandalay Bay computer without Paddock’s
knowledge.

Exhibit A, Pg. 86

September 25th through October 1st
September 25th
Overview:
At approximately 1533 hours, Paddock checked into room 32-135 of the Mandalay Bay under
his name. Paddock booked the connecting room (32-134) for September 29th through October
2nd. When Paddock checked into room 32-134 on September 29th, he did so under his girlfriend,
Danley’s, name. Paddock was set to check out of both rooms on October 2 nd. From
approximately 1603 to 1656 hours, Paddock was seen at Mizuya Sushi (inside the Mandalay
Bay), he then drove his vehicle from self-park to valet5, and returned to the front desk with five
suitcase bags.





At approximately 1656 hours, a bellman met Paddock and escorted him to room 32-135.
Paddock requested to go through the service elevators and not through the guest
elevators. According to interviews, this request is not uncommon for guests of the hotel.
Paddock rolled one bag and a bellman used a luggage cart for the other four bags.
From approximately 2137 to 2140 hours, Paddock had his vehicle removed from valet
and Paddock left the Mandalay Bay.
At approximately 2300 hours, Paddock arrived in Mesquite, Nevada.

September 26th
Overview:
Paddock spent time at his home in Mesquite, Nevada, Downtown Las Vegas and Mandalay Bay.










5

From approximately 1012 to 1455 hours, according to cell phone records, Paddock’s cell
phone showed in Mesquite, Nevada.
At approximately 1535 hours, Paddock completed a wire transfer in Mesquite, Nevada of
$50,000 from his Wells Fargo account to an account in the Philippines.
From approximately 2012 to 2100 hours, Paddock drove from Mesquite, Nevada to The
Ogden.
From approximately 2102 to 2216 hours, Paddock walked around and gambled at the El
Cortez Hotel.
At approximately 2223 hours, Paddock returned to The Ogden.
At approximately 2234 hours, Paddock departed The Ogden and drove to Mandalay Bay.
From approximately 2245 to 2252 hours, Paddock valeted his vehicle at Mandalay Bay
and took six suitcases (located on a luggage cart) and one rolling suitcase (Paddock
rolled the suitcase himself) up to room 32-135 by way of the service elevator with help of
a bellman. (The bellman who escorted Paddock on the September 25 th was different than
the bellman who escorted Paddock on the September 26th.)
At approximately 2308 hours, Paddock began gambling at Mandalay Bay and continued
gambling into the next morning.

Confirmed by valet ticket #275263147

Exhibit A, Pg. 87

September 27th
Overview:
Paddock spent several hours gambling at Mandalay Bay. Paddock spoke with his VIP host
reference wanting the “Vista Suite” at the end of the hall with the double doors. Paddock was
insistent on the suite and connecting room. Paddock wanted to be in the 200 wing as it had a
better view, according to him. Paddock was upset about the room, but was not angry. Paddock
never mentioned the reason why he wanted a connecting room.
 At approximately 0713 hours, Paddock stopped gambling, which he was doing
continuously since the previous night.
 At approximately 1556 hours, Paddock placed a room service order for two entrees
totaling $94.33.
 At approximately 1632 hours, room 32-135 was cleaned by hotel staff. Paddock remained
in the room as it was cleaned.
 At approximately 2003 hours, Paddock was seen in the valet area of Mandalay Bay with
two rolling suitcases. Paddock had his vehicle removed from valet and left the Mandalay
Bay at approximately 2015 hours.
 At approximately 2029 hours, Paddock arrived at The Ogden and entered a room at
approximately 2031 hours.
 From approximately 2045 to 2200 hours, Paddock left The Ogden and drove to Mesquite,
Nevada, where he arrived at approximately 2200 hours.
 At approximately 2300 hours, Paddock arrived at the Walmart in Mesquite, Nevada. He
purchased luggage, razor blades, fake flowers, a vase, and a styrofoam ball.
September 28th
Overview:
In Mesquite, Nevada, Paddock purchased a .308 bolt action rifle, deposited $14,000 into a Wells
Fargo account, and wire transferred $50,000 to an account in the Philippines. Paddock visited a
gun range in Mesquite, Nevada, before traveling back to the Mandalay Bay.
 From approximately 0227 to 1420 hours, Paddock’s cell phone was located in Mesquite,
Nevada according to cell phone records.
 From approximately 1444 to 1501 hours, Paddock made a $14,000 deposit at Wells
Fargo and transferred $50,000 to a bank in the Philippines.
 At approximately 1523 hours, Paddock purchased a .308 bolt action rifle from a gun store
in Mesquite, Nevada.
 From approximately 1723 to 1803 hours, Paddock was seen driving in the area of the City
of Mesquite Landfill / gun range located at 3200 Mesquite Heights Road, in a rural area
of Mesquite, Nevada.
 From approximately 2042 to 2146 hours, Paddock traveled from Mesquite, Nevada to the
Mandalay Bay and parked in valet. Paddock was seen entering the Mandalay Bay with
two rolling suitcases and a laptop bag.
 At approximately 2218 hours, Paddock began gambling at Mandalay Bay and continued
gambling into the next morning.

Exhibit A, Pg. 88

September 29th
Overview:
A second refrigerator was delivered to Paddock’s room (32-135). Staff was asked to only change
linen’s and take out the trash in room 32-135. A staff member was told by Paddock not to vacuum
32-135 and not to remove the food service cart from the room. Staff was asked specifically to
change sheets and towels in room 32-134 and inform Paddock when room 32-134 was
completed. Paddock remained in room 32-135 and used his laptop as the rooms were being
cleaned.
 At approximately 0543 hours, Paddock stopped gambling, which he was doing
continuously since the previous night.
 From approximately 1228 to 1314 hours, Paddock ate at Mizuya Sushi Sake and then
returned to room 32-135.
 At approximately 1400 hours, rooms 32-135 and 32-134 were cleaned by hotel staff.
 At approximately 1506 hours, Paddock checked into room 32-134 (under Danley’s name)
from the VIP check in counter at the Mandalay Bay.
 At approximately 1508 hours, Paddock took the guest elevator to the 32 nd floor.
 At approximately 1509 hours, Paddock entered room 32-134.
 From approximately 1509 to 0100 (September 30th) hours, Paddock remained inside
rooms 32-134 and 32-135.
 At approximately 2311 hours, a room service ticket totaling $102.99 was charged to room
32-134.
September 30th
Overview:
Paddock traveled to Mesquite, Nevada twice from Mandalay Bay. Paddock placed “Do Not
Disturb” signs on both 32-135 and 32-134. Paddock gambled for a couple of hours and brought
more suitcases up to his room.
 At approximately 0100 hours, Paddock drove to Mesquite, Nevada.
 At approximately 0556 hours, Paddock returned to the Mandalay Bay with four suitcases.
 From approximately 1204 to 1215 hours hotel staff serviced the private mini bar of room
32-134. (Paddock placed the “Do Not Disturb” signs on the room doors sometime after
1215 hours.)
 Between approximately 1300 to 1400 hours, Paddock was asked if he would like rooms
32-135 and 32-134 cleaned. Paddock declined.
 From approximately 1452 hours to 1508 hours, Paddock removed his vehicle from valet
and parked in the self-parking garage.
 At approximately 1512 hours, Paddock was observed exiting the parking garage elevator
with two suitcase rolling bags.
 At approximately 1520 hours, Paddock was seen in a guest elevator with the two rolling
suitcases and took them to his room.
 At approximately 1952 hours, Paddock drove from Mandalay Bay to Mesquite, Nevada
and arrived at approximately 2057 hours.

Exhibit A, Pg. 89

October 1st
Overview:
From approximately 0206 to 2040 hours, Paddock departed Mesquite, Nevada and returned to
Mandalay Bay. He spent several hours gambling, brought more suitcases to his room, and
ordered room service.
 At approximately 0206 hours, Paddock left Mesquite, Nevada.
 At approximately 0305 hours, Paddock arrived at the self-parking garage at the Mandalay
Bay.
 From approximately 0324 to 0734 hours, Paddock walked around the casino and
gambled. Paddock used both his own and Danley’s players cards.
 At approximately 0737 hours, Paddock returned to his room.
 From approximately 1222 to 1226 hours, Paddock moved his vehicle from the self-park
garage to valet6. This valet transaction was the only parking transaction during his stay
at Mandalay Bay that was completed in Danley’s name.
 At approximately 1229 hours, Paddock was observed waiting for an elevator with two
rolling suitcases. There was also a third bag hanging from one of the rolling suitcases.
 At approximately 1233 hours, a room service ticket was opened for room 32-134.
 At approximately 1317 hours, Mandalay Bay valet parked Paddock’s vehicle in “Garage
East”, space #317.7
 At approximately 1337 hours, the room service ticket8 was closed out for room 32-134 in
Danley’s name. The check totaled $67.60 and included two entrees.
 From 1423 to 1940 hours, the doors for rooms 32-134 and 32-135 were manipulated
multiple times. For example, the doors were opened, closed and the dead bolt locks were
engaged and disengaged several times.
From approximately 2040 to 2205 hours, a series of events led up to the mass shooting
conducted by Paddock:







At approximately 2040 hours, a HotSOS alarm was generated for room 32-129.
At approximately 2118 hours, the HotSOS call was assigned to Security Officer Campos
via his cellphone. Security Officer Campos was assigned five HotSOS calls during the
2118 hours cellphone call. According to interviews of hotel staff, it is common practice to
assign HotSOS calls to security officers and then immediately close out the HotSOS
tickets prior to a security officers actually checking out the room. Security Officer Campos
handled the HotSOS call for room 32-129 last.
At approximately 2136 hours, the dead bolt to room 32-135 was engaged.
At approximately 2140 hours, Jason Alden started his performance at the Route 91
Festival.
At approximately 2146 hours, the dead bolt to room 32-134 was engaged.

6

Valet ticket #275274484
This is the same space detectives located the vehicle in after the shooting
8 Room service ticket #51592684
7

Exhibit A, Pg. 90

Approximately 2146 to 2204 hours









Security Officer Campos entered the service elevator at approximately 2146 hours and
got off on the 30th floor at approximately 2147 hours.
Security Officer Campos walked to the stairwell in the 100 wing of the 30 th floor and
walked up to the 32nd floor.
Security Officer Campos could not gain entry to the 32 nd floor due to the door being
barricaded.9
Security Officer Campos walked up the stairs to the 33 rd floor. Security Officer Campos
walked down the 100-Wing of the 33rd floor to Center Core. He took a guest elevator to
the 32nd floor.
At approximately 2200 hours, Security Officer Campos exited the guest elevator and
walked up the 100 Wing toward room 32-129. Security Officer Campos checked room 32129 and found it was secure. Security Officer Campos walked into the foyer leading to
the stairwell and observed the “L” bracket screwed into the door and frame.
At approximately 2204 hours, Security Officer Campos picked up a house phone located
inside the small foyer leading to the stairwell and called security dispatch to report the “L”
bracket on the door to the stairs. Security dispatch transferred the call to maintenance
dispatch. The maintenance dispatcher then transferred Security Officer Campos to the
maintenance supervisor’s cell phone.

From approximately 2205 to 2216 hours, Paddock committed a mass shooting that left 58 people
dead and over 700 hundred injured:
Approximately 2205 hours




Engineer Schuck was contacted by the maintenance dispatcher via his radio.
Paddock fired two single gunshots into the Las Vegas Village area.
Paddock fired an undetermined amount of gunshots into the Las Vegas Village area.

Approximately 2206 hours

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




Security Officer Campos ended the phone call and hung up the house phone. After
hanging up the phone, Security Officer Campos heard what he described as rapid drilling
noises.
Paddock fired approximately 100 rounds into the Las Vegas Village area.
Security Officer Campos began walking down the 100-wing toward Center Core.
Engineer Schuck was told by his supervisor to go to the 32nd floor.
LVMPD unit 169SE broadcast over the Convention Center Area Command (CCAC) radio
channel, “169SE, we got shots fired, 415A at the Route 91. Sounded like an automatic
firearm.”
Paddock fired rounds down the hallway at Security Officer Campos. Security Officer
Campos was struck in the left calf with a bullet fragment. He took cover in the alcove
between rooms 32-124 and 32-122.

The investigation would reveal the door leading from the stairwell to the 32 nd floor was barricaded by an “L”
bracket screwed into the door and the door frame.

9

Exhibit A, Pg. 91




Security Officer Campos told his dispatcher via his radio, “Hey there’s shots fired in, uh,
32-135.”
Engineer Schuck’s dispatcher told him specifically where to go on the 32nd floor. Engineer
Schuck left room 62-207 and walked to the service elevators with his equipment cart. The
service elevators are located in the 200-wing of the hotel.

Approximately 2207 hours,





Paddock fired approximately 95 rounds into the Las Vegas Village area.
LVMPD Officers Varsin and Hendrex left the Mandalay Bay Security Office with two
armed Mandalay Bay Security Officers.
Paddock fired approximately 100 rounds into the Las Vegas Village area.
Paddock fired approximately 94 rounds into the Las Vegas Village area.

Approximately 2208 hours



Paddock fired the 1st round at the fuel tank. (Missed tank)
LVMPD CAD event# 171001-3519 was generated for the shooting incident.

Approximately 2209 hours







Paddock fired the 2nd round at the fuel tank. (Missed tank)
Paddock fired the 3rd round at the fuel tank. (Missed tank)
Paddock fired the 4th round at the fuel tank. (Missed tank)
Paddock fired the 5th round at the fuel tank. 1st strike into the fuel tank. (Top strike)
Paddock fired the 6th round at the fuel tank. 2nd strike into fuel tank. (Lower strike) The
investigation was unable to determine when the 7th and 8th rounds were fired at the fuel
tank.10
Paddock fired an undetermined number of rounds into the Las Vegas Village area.

Approximately 2210 hours






Engineer Schuck arrived at the Center Core of the 32nd floor and walked up the 100-wing
toward room 32-135. As he walked, Engineer Schuck heard what he believed to be a jack
hammer sound in the distance. Engineer Schuck quickly realized it was automatic
gunfire.11 After the gunshots stopped, Security Officer Campos yelled at Engineer Schuck
to take cover.
Engineer Schuck turned and took cover in the alcove between rooms 32-119 and 32-117.
Paddock fired rounds down the hallway at Engineer Schuck. He was not struck by gunfire.
Engineer Shuck attempted to open room 32-117 with his master key card however the
dead bolt lock was engaged and he was unable to gain entry into the room.
Engineer Schuck stated over his radio, “Shannon, call the police. Someone’s firing a rifle
on the 32nd floor down the hallway.”

10

There were eight .308 casings located inside of room 32-134
The investigation determined at the time Engineer Schuck heard the gunfire, Paddock fired the
approximately 21 rounds, referred to above, at the Las Vegas Village area.
11

Exhibit A, Pg. 92

Approximately 2211 hours




LVMPD Officers Varsin and Hendrex arrived at the Center Core area of the 31 st floor and
began walking up the 100-wing along with armed security officers from Mandalay Bay.
Paddock fired approximately 80-100 rounds into the Las Vegas Village area.
Paddock fired approximately 95 rounds into the Las Vegas Village area.

Approximately 2212 hours





Two armed Mandalay Bay security officers exited the guest elevator on the 32 nd floor and
went to the Center Core.
Paddock fired approximately 80-90 rounds into the Las Vegas Village area.
Paddock fired an unknown number of rounds into the Las Vegas Village area. LVMPD
Officers Clarkson and Cook were struck by gunfire during this volley.
A Mandalay Bay security officer who was with LVMPD Officers Varsin and Hendrex
advised over his radio, “We can hear rapid fire above us. We are on the 31 st floor. We
can hear it above us.”

Approximately 2213 hours


Paddock fired an unknown number of rounds into the Las Vegas Village area.

Approximately 2215 hours


Paddock fired two separate volleys of an unknown number of rounds into the Las Vegas
Village area.

Approximately 2216 hours


LVMPD Officers Varsin and Hendrex along with Mandalay Bay security officers made
entry into the stairwell on the 31st floor.

Approximately 2218 hours


The heat detection indicator from inside room 32-135 detected no further readings from
inside of the room.

Approximately 2241 hours


A Strike Team which included K9 Sergeant Bitsko, K9 Officer Newton, SWAT Officer
Hancock and Detective Walford ascended the stairs from the 30th floor. The Strike Team
made entry and cleared the 31st floor.

Approximately 2256 hours


The Strike Team reentered the stairwell from the 31st floor and walked up to the 32nd floor.

Approximately 2257 hours


K9 Sergeant Bitsko and SWAT Officer Hancock manually breached the door barricaded
with the “L” bracket.
Exhibit A, Pg. 93

Approximately 2320 hours


The Strike Team conducted an explosive breach into room 32-135 and made entry. The
Strike Team reported Paddock was down from an apparent self-inflected gunshot wound
to the head.

Approximately 2326 hours


The Strike Team made a second explosive breach from inside of room 32-135 into room
32-134 through the connecting doors. Immediately after the explosive breach an LVMPD
SWAT Officer negligently fired a three round burst from his rifle. The rounds fired from
the SWAT officer’s rifle struck a chair, an entertainment center/cabinet and a wall.

After the Strike Team finished rendering rooms 32-134 and 32-135 safe, the scene was secured
until investigative personnel arrived and assumed control of the 32nd floor.
III.

VICTIMS

Deceased
Victims 1-31 were pronounced deceased by the coroner investigator who responded to the Las
Vegas Village venue and surrounding areas. The remaining victims were pronounced by the
attending physician at the corresponding medical facility they were transported to. After all
autopsies were performed, the Clark County Office of the Coroner Medical Examiner (CCOCME)
ruled the cause and manner of death for all deceased victims to be gunshot wound(s) and
homicide.
1. Jack Reginald Beaton
Age 54
Clark County Coroner’s Office Case Number: 17-10060
Clark County Coroner’s Office Seal Number: 727327
Time of Death: 10-02-2017 at 0545 hours
2. Christopher Louis Roybal
Age 28
Clark County Coroner’s Office Case Number: 17-10061
Clark County Coroner’s Office Seal Number: 727302
Time of Death: 10-02-2017 at 0545 hours
3. Lisa Marie Patterson
Age 46
Clark County Coroner’s Office Case Number: 17-10062
Clark County Coroner’s Office Seal Number: 732484
Time of Death: 10-02-2017 at 0545 hours

Exhibit A, Pg. 94

4. Adrian Allan Murfitt
Age 35
Clark County Coroner’s Office Case Number: 17-10063
Clark County Coroner’s Office Seal Number: 737364
Time of Death: 10-02-2017 at 0545 hours
5. Hannah Lassette Ahlers
Age 34
Clark County Coroner’s Office Case Number: 17-10065
Clark County Coroner’s Office Seal Number: 732473
Time of Death: 10-02-2017 at 0545 hours
6. Austin William Davis
Age 29
Clark County Coroner’s Office Case Number: 17-10066
Clark County Coroner’s Office Seal Number: 727385
Time of Death: 10-02-2017 at 0545 hours
7. Stephen Richard Berger
Age 44
Clark County Coroner’s Office Case Number: 17-10067
Clark County Coroner’s Office Seal Number: 732488
Time of Death: 10-02-2017 at 0545 hours
8. Stacee Ann Etcheber
Age 50
Clark County Coroner’s Office Case Number: 17-10068
Clark County Coroner’s Office Seal Number: 727388
Time of Death: 10-02-2017 at 0545 hours
9. Christiana Duarte
Age 22
Clark County Coroner’s Case Number: 17-10069
Clark County Coroner’s Seal Number: 732404
Time of Death: 10-02-2017 at 0545 hours
10. Lisa Romero-Muniz
Age 48
Clark County Coroner’s Case Number: 17-10070
Clark County Coroner’s Seal Number: 732458
Time of Death: 10-02-2017 at 0545 hours
11. Heather Lorraine Alvarado
Age 35
Clark County Coroner’s Office Case Number: 17-10071
Clark County Coroner’s Office Seal Number: 732423
Time of Death: 10-02-2017 at 0545 hours
Exhibit A, Pg. 95

12. Denise Cohen
Age 58
Clark County Coroner’s Case Number: 17-10072
Clark County Coroner’s Office Seal Number: 732474
Time of Death: 10-02-2017 at 0545 hours
13. Kurt Allen Von Tillow
Age 55
Clark County Coroner’s Office Case Number: 17-10073
Clark County Coroner’s Office Seal Number: 732489
Time of Death: 10-02-2017 at 0545 hours
14. Brennan Lee Stewart
Age 30
Clark County Coroner’s Case Number: 17-10074
Clark County Coroner’s Seal Number: 732414
Time of Death: 10-02-2017 at 0545 hours
15. Derrick Dean Taylor
Age 56
Clark County Coroner’s Office Case Number: 17-10075
Clark County Coroner’s Office Seal Number: 732445
Time of Death: 10-02-2017 at 0545 hours
16. Kelsey Breanne Meadows
Age 28
Clark County Coroner’s Office Case Number: 17-10076
Clark County Coroner’s Office Seal Number: 732486
Time of Death: 10-02-2017 at 0545 hours
17. Jennifer Topaz Irvine
Age 42
Clark County Coroner’s Office Case Number: 17-10077
Clark County Coroner’s Office Seal Number: 727384
Time of Death: 10-02-2017 at 0545 hours
18. William W. Wolfe Jr.
Age 42
Clark County Coroner’s Office Case Number: 17-10078
Clark County Coroner’s Office Seal Number: 732415
Time of Death: 10-02-2017 at 0545 hours
19. Carly Anne Kreibaum
Age 33
Clark County Coroner’s Office Case Number: 17-10079
Clark County Coroner’s Office Seal Number: 732478
Time of Death: 10-02-2017 at 0545 hours
Exhibit A, Pg. 96

20. Laura Anne Shipp
Age 50
Clark County Coroner’s Office Case Number: 17-10080
Clark County Coroner’s Office Seal Number: 732451
Time of Death: 10-02-2017 at 0545 hours
21. Carrie Rae Barnette
Age 34
Clark County Coroner’s Office Case Number: 17-10085
Clark County Coroner’s Office Seal Number: 727391
Time of Death: 10-02-2017 at 0545 hours
22. Jordyn Nicole Rivera
Age 21
Clark County Coroner’s Office Case Number: 17-10101
Clark County Coroner’s Office Seal Number: 732469
Time of Death: 10-02-2017 at 0545 hours
23. Victor Loyd Link
Age 55
Clark County Coroner’s Office Case Number: 17-10102
Clark County Coroner’s Office Seal Number: 732497
Time of Death: 10-02-2017 at 0545 hours
24. Candice Ryan Bowers
Age 40
Clark County Coroner’s Office Case Number: 17-10103
Clark County Coroner’s Office Seal Number: 732417
Time of Death: 10-02-2017 at 0545 hours
25. Jordon Alan McIldoon
Age 23
Clark County Coroner’s Office Case Number: 17-10053
Clark County Coroner’s Office Seal Number: 732487
Time of Death: 10-02-2017 at 0545 hours
26. Keri Lynn Galvan
Age 31
Clark County Coroner’s Office Case Number: 17-10054
Clark County Coroner’s Office Seal Number: 732499
Time of Death: 10-02-2017 at 0545 hours
27. Dorene Anderson
Age 49
Clark County Coroner’s Office Case Number: 17-10057
Clark County Coroner’s Office Seal Number: 727313
Time of Death: 10-02-2017 at 0545 hours
Exhibit A, Pg. 97

28. Neysa C. Tonks
Age 46
Clark County Coroner’s Office Case Number: 17-10058
Clark County Coroner’s Office Seal Number: 727306
Time of Death: 10-02-2017 at 0545 hours
29. Melissa V. Ramirez
Age 26
Clark County Coroner’s Office Case Number: 17-10059
Clark County Coroner’s Office Seal Number: 732407
Time of Death: 10-02-2017 at 0545 hours
30. Brian Scott Fraser
Age 39
Clark County Coroner’s Office Case Number: 17-10056
Clark County Coroner’s Office Seal Number: 732408
Time of Death: 10-02-2017 at 0545 hours
31. Tara Ann Roe
Age 34
Clark County Coroner’s Office Case Number: 17-10055
Clark County Coroner’s Office Seal Number: 732441
Time of Death: 10-02-2017 at 0545 hours
32. Bailey Schweitzer
Age 20
Clark County Coroner’s Office Case Number: 17-10051
Clark County Coroner’s Office Seal Number: 732420
Time of Death: 10-01-2017 at 2307 hours
33. Patricia Mestas
Age 67
Clark County Coroner’s Office Case Number: 17-10049
Clark County Coroner’s Office Seal Number: 727390
Time of Death: 10-01-2017 at 2250 hours
34. Jennifer Parks
Age 36
Clark County Coroner’s Office Case Number: 17-10052
Clark County Coroner’s Office Seal Number: 727359
Time of Death: 10-01-2017 at 2300 hours
35. Angela Gomez
Age 20
Clark County Coroner’s Office Case Number: 17-10050
Clark County Coroner’s Office Seal Number: 732413
Time of Death: 10-01-2017 at 2253 hours
Exhibit A, Pg. 98

36. Denise Burditus
Age 50
Clark County Coroner’s Office Case Number: 17-10082
Clark County Coroner’s Office Seal Number: 731590
Time of Death: 10-02-2017 at 0047 hours
37. Cameron Robinson
Age 28
Clark County Coroner’s Office Case Number: 17-10083
Clark County Coroner’s Office Seal Number: 732437
Time of Death: 10-01-2017 at 2301 hours
38. James Melton
Age 29
Clark County Coroner’s Office Case Number: 17-10084
Clark County Coroner’s Office Seal Number: 727311
Time of Death: 10-01-2017 at 2320 hours
39. Quinton Robbins
Age 20
Clark County Coroner’s Office Case Number: 17-10046
Clark County Coroner’s Office Seal Number: 731535
Time of Death: 10-01-2017 at 2315 hours
40. Charleston Hartfield
Age 34
Clark County Coroner’s Office Case Number: 17-10086
Clark County Coroner’s Office Seal Number: 727353
Time of Death: 10-01-2017 at 2230 hours
41. Erick Silva
Age 21
Clark County Coroner’s Office Case Number: 17-10087
Clark County Coroner’s Office Seal Number: 725563
Time of Death: 10-01-2017 at 2230 hours
42. Teresa Nicol Kimura
Age 38
Clark County Coroner’s Office Case Number: 17-10088
Clark County Coroner’s Office Seal Number: 725567
Time of Death: 10-01-2017 at 2230 hours
43. Susan Smith
Age 53
Clark County Coroner’s Office Case Number: 17-10089
Clark County Coroner’s Office Seal Number: 725552
Time of Death: 10-01-2017 at 2230 hours
Exhibit A, Pg. 99

44. Dana Leann Gardner
Age 52
Clark County Coroner’s Office Case Number: 17-10090
Clark County Coroner’s Office Seal Number: 725569
Time of Death: 10-01-2017 at 2250 hours
45. Thomas Day Jr.
Age 54
Clark County Coroner’s Office Case Number: 17-10091
Clark County Coroner’s Office Seal Number: 725591
Time of Death: 10-01-2017 at 2341 hours
46. John Joseph Phippen
Age 56
Clark County Coroner’s Office Case Number: 17-10092
Clark County Coroner’s Office Seal Number: 725568
Time of Death: 10-02-2017 at 0244 hours
47. Rachel Kathleen Parker
Age 33
Clark County Coroner’s Office Case Number: 17-10093
Clark County Coroner’s Office Seal Number: 725561
Time of Death: 10-01-2017 at 2230 hours
48. Sandra Casey
Age 34
Clark County Coroner’s Office Case Number: 17-10094
Clark County Coroner’s Office Seal Number: 725550
Time of Death: 10-01-2017 at 2230 hours
49. Jessica Klymchuk
Age 34
Clark County Coroner’s Office Case Number: 17-10095
Clark County Coroner’s Office Seal Number: 727322
Time of Death: 10-01-2017 at 2230
50. Andrea Lee Anna Castilla
Age 28
Clark County Coroner’s Office Case Number: 17-10096
Clark County Coroner’s Office Seal Number: 727381
Time of Death: 10-01-2017 at 2301 hours
51. Carolyn Lee Parsons
Age 31
Clark County Coroner’s Office Case Number: 17-10097
Clark County Coroner’s Office Seal Number: 727382
Time of Death: 10-01-2017 at 2300 hours
Exhibit A, Pg. 100

52. Michelle Vo
Age 32
Clark County Coroner’s Office Case Number: 17-10098
Clark County Coroner’s Office Seal Number: 727355
Time of Death: 10-01-2017 at 2244 hours
53. Rocio Guillen
Age 40
Clark County Coroner’s Office Case Number: 17-10099
Clark County Coroner’s Office Seal Number: 732409
Time of Death: 10-01-2017 at 2318 hours
54. Christopher Hazencomb
Age 44
Clark County Coroner’s Office Case Number: 17-10105
Clark County Coroner’s Office Seal Number: 732444
Time of Death: 10-02-2017 at 1044 hours
55. Brett Schwanbeck
Age 61
Clark County Coroner’s Office Case Number: 17-10081
Clark County Coroner’s Office Seal Number: 732471
Time of Death: 10-03-2017 at 1328 hours
56. Rhonda M. LeRocque
Age 42
Clark County Coroner’s Office Case Number: 17-10045
Clark County Coroner’s Office Seal Number: 542385
Time of Death: 10-02-2017 at 0023 hours
57. Austin Cooper Meyer
Age 24
Clark County Coroner’s Office Case Number: 17-10047
Clark County Coroner’s Office Seal Number: 540045
Time of Death: 10-01-2017 at 2257 hours
58. Calla-Marie Medig
Age 28
Clark County Coroner’s Office Case Number: 17-10048
Clark County Coroner’s Office Seal Number: 539069
Time of Death: 10-01-2017 at 2246 hours

Exhibit A, Pg. 101

Living Victims
Documenting the living victims in this case has been a work in progress since October 1st. Source
material poured into the LVMPD’s Force Investigation Team (FIT) office post October 1 st and is
still being received.12
LVMPD recognizes that the approximate 22,000 people who attended the Route 91 festival are
all victims. That number does not take into consideration the hundreds and possibly thousands
that were walking along the Las Vegas Strip at the time of the shooting outside the Las Vegas
Village venue. The goal of the FIT team was to document those who actually sustained any type
of physical injury, no matter the degree. As previously stated in the introduction to this report,
this information is vital in order to grant assistance, properly categorize the level of crime and
most importantly, honor those who fell prey to this horrific act of violence.
IV.

SUSPECT

An extensive joint investigation involving the LVMPD and the Federal Bureau of Investigation
(FBI) began immediately after the incident into the life of Paddock. Every facet of Paddock’s life
was explored.
At the time of the incident Paddock was 64 years old. He owned residences in Mesquite and
Reno, Nevada and lived with his girlfriend Marilou Danley. Danley was in the Philippines at the
time of the incident. She left the country on September 14, 2017, and returned on October 3,
2017. Upon arriving in the United States, Danley was interviewed by investigators several times.
Interviews were also conducted with other relatives and acquaintances reference Paddock’s
background.
Danley stated Paddock’s demeanor changed over the course of the last year. According to her,
Paddock had become “distant” and their relationship was no longer intimate. Paddock was
described as “germaphobic” and had strong reactions to smells. Over the course of the last year
Paddock began to buy firearms and Danley believed it was a hobby of his.
During a stay at the Mandalay Bay in the beginning of September 2017, Danley recalled Paddock
behaving strangely. The two were staying in room 60-235 and she observed Paddock constantly
looking out the windows of the room which overlooked the Las Vegas Village venue. Paddock
would move from window to window looking at the site from different angles.
Paddock’s ex-wife, Peggy Reiko Paddock, described Paddock as intelligent and great with
numbers. She further stated he worked as an Internal Revenue Service Agent. Paddock later
worked as an auditor for Lockheed Martin and Boeing. According to her, Paddock began
purchasing real estate properties with his mother and renovating them. Paddock bought and
sold numerous properties throughout the years and, as far as she knew, sold the last property
in 2010.
12

Source material consisted of information from local area hospitals, notes taken by Crime Scene Analysts
who responded to local area hospitals to document the injured, voluntary statements from actual victims and
witnesses, and lastly, incident crime reports filed by hundreds of victims who sustained injury but waited to
travel home to receive medical care. Also included was a separate listing of victims provided by the FBI.

Exhibit A, Pg. 102

Paddock made numerous claims to friends and family that he consistently felt ill, in pain or
fatigued. An interview was conducted with a physician in Las Vegas who identified himself as
Paddock’s primary care physician since 2009. He last saw Paddock as a patient on or around
October 2016 for an annual checkup. He recalled the only major ailment Paddock had was a
slip and fall accident at a casino approximately 3 years earlier, which caused a muscle tear.
The physician described Paddock as “odd" in behavior with “little emotion” shown. He believed
Paddock may have had bipolar disorder however, Paddock did not want to discuss that topic
further with him. Paddock also refused anti-depressant medication but accepted prescriptions
for anxiety. He noted Paddock seemed fearful of medications, often refusing to take them. He
did not believe Paddock was abusing any medications.
Most of the people interviewed acknowledged Paddock’s gambling habits. Paddock was known
to gamble tens of thousands of dollars at a time and played at numerous casinos. Paddock was
often given complimentary rooms and meals at the casinos he frequented due to the amount of
money he gambled.
From 1982 through September of 2016, Paddock purchased approximately 29 firearms. These
purchases consisted of handguns, shotguns and one rifle. From October 2016 through
September 2017, Paddock purchased over 55 firearms along with firearm related accessories.
Most of the firearms were rifles of various calibers. With the exception of the revolver, every
firearm recovered in the Mandalay Bay was bought after September 2016.
During the course of the investigation it was learned Paddock had very limited contact with law
enforcement. Paddock was stopped by police on occasion for traffic related offenses receiving
only traffic citations. No arrest history was found for Paddock.
V.

WITNESS INTERVIEWS

The following information was taken from witness statements and compiled into a chronological
description of the events.
On 10-01-2017, LVMPD had 51 personnel assigned to work special events overtime for the
Route 91 Festival. The personnel staffing consisted of one lieutenant, five sergeants, forty-four
officers and one civilian. The event had officers staffed from 1300-0100 hours with officers
arriving and securing at various times.
The specific assignments for the event were West Traffic (1 sergeant, 10 officers), East Traffic
(1 sergeant, 10 officers), Interior Entry / Gates (1 sergeant, 6 officers), Interior Early Squad (1
sergeant, 8 officers), Interior Late Squad (1 sergeant, 8 officers), Event Coordinator (1 officer)
and Command Post (1 officer, 1 civilian). The assignments were supervised by Lieutenant
Spencer who was designated as the Incident Commander for the festival.13

13

Specific officers and assigned locations can be found on the Assignment List, ICS Form 204 for the event.

Exhibit A, Pg. 103

At approximately 2118 hours, Mandalay Bay Security Officer Campos was working his normal
duties when he was notified of several HotSOS calls in the 100 Wing tower that he was assigned
to monitor. The standard operating procedure for the Mandalay Bay security staff once an alarm
is received is to call the room and attempt to contact the guest. If there is no answer, a security
officer will be sent to check the door. These HotSOS calls are common and occur numerous
times throughout the day. The security dispatcher will typically close the alarm out once a
security officer is assigned. Security Dispatcher Brett Buck notified Security Officer Campos to
check several HotSOS calls. Room 32-129 was last on his list to check.
Security Officer Campos was on the 30th floor and en-route to room 32-129 via the stairwell
located at the north end of the 100 wing. Security Officer Campos attempted to enter the hallway
of the 32nd floor through the small foyer and discovered the door was locked. The doors are
always open due the stairwell being a fire escape and county codes require they remain
unlocked at all times. The door has a handle but no locking mechanism.
Security Officer Campos stated he walked down the stairwell to the 31st floor, entered the hallway
and walked to the Center Core. He used the guest elevator to go to the 32 nd floor. Video
surveillance showed Security Officer Campos actually went to the 33rd floor, then took a guest
elevator down to the 32nd floor.
Security Officer Campos proceeded directly to the end of the 100 wing hallway, opened the inner
door of the foyer entrance to the stairwell and observed the “L” bracket screwed into the door
frame and door that opens into the stairwell. He realized this is what kept the door secured.
Security Officer Campos utilized the house phone mounted inside the foyer to notify the security
dispatcher of the bracket. The security dispatcher passed the call to the engineering section.
Security Officer Campos hung up the phone, heard what he described as a loud rapid drilling
sound coming from room 32-135. He recalled the drilling sounded like it was coming from deep
inside the room.
While walking toward the Center Core, Security Officer Campos heard gunfire coming from room
32-135 and ran down the hallway. Security Officer Campos realized he was shot in his left calf
as he took cover in the alcove of rooms 32-122 and 32-124. Using both his radio and cell phone,
Security Officer Campos advised the security dispatcher he had been shot in the leg with a BB
/ Pellet gun and was injured. He stayed in this position on the phone with the dispatcher while
waiting for help. Security Officer Campos heard more gunshots coming from inside 32-135, but
no rounds were coming down the hallway.
As country music singer Jason Aldean performed on stage, LVMPD officers working the interior
of the event heard what they described as fireworks going off. Officer Hutchason and Special
Events Coordinator Rodriquez, who were in the Command Post with security personnel, used
the video monitors to look for the source of the noise. Upon recognizing the source of the noise
to be gunfire, Coordinator Rodriguez directed all officers to change their radios to the CCAC
radio channel. Coordinator Rodriguez monitored both the Events radio channel and CCAC radio
channel throughout the incident.

Exhibit A, Pg. 104

LVMPD officers inside the Las Vegas Village recognized the sounds were coming from the
southwest. Part of the crowd started to move towards the exits. Shortly after hearing the initial
gunfire, LVMPD officers heard the first long burst of what they described as automatic gunfire.
Once officers recognized the sound to be gunfire, they immediately searched for the gunman.
Security personnel along with LVMPD officers were in the security office of Mandalay Bay with
two females being detained for trespass. They became aware via the radio of an active shooter
call. Security Manager Oelke headed towards the Luxor side of the property when another call
came over the radio that a security officer14 had been shot with a pellet gun in the tower of the
Mandalay Bay.
Security Manager Oelke ran to the Center Core guest elevators of the Mandalay Bay and met
with Security Managers Sottile, Umstott and LVMPD Officers Hendrex and Varsin. As they
arrived at the elevators, Engineering Supervisor Shannon Alsbury was holding the elevator door
open. Engineer Alsbury was using a key to lock out the elevator and keep it from being stopped
by guests trying to get on. There was conflicting information on the exact location of the
shooter(s) whether it was on the 31st, 32nd, or the 33rd floors. While on the elevator they decided
to check all three floors.
As the door opened on the 31st floor, Security Managers Oelke and Umstott and LVMPD Officers
Hendrex and Varsin exited and walked up the 100 wing upon hearing gunshots coming from an
unknown direction. Security Manager Sottile and Engineer Alsbury continued to the 32nd floor
on the elevator.
At the Las Vegas Village, LMVPD officers observed the crowd move away from the southwest
portion of the venue. They believed an active shooter was in that area. As officers moved toward
the stage they heard several more bursts of gunfire. Officers directed citizens to get on the
ground as they looked for a gunman. As officers moved through the crowd, they observed
several citizens wounded and deceased. Officer Polion advised LVMPD Dispatch of shots fired
and multiple casualties. The radio traffic was accidently broadcast on SEAC radio channel.
Officers assigned to the venue near Reno Avenue and Las Vegas Boulevard began to move
south along the Boulevard. They believed the gunfire was coming from the south end of Las
Vegas Village. As they moved southbound, officers directed civilians away from the area. The
officers received direct gunfire and took cover behind a wall as bullets impacted around them.
Between bursts of gunfire, officers continued to assist evacuating civilians and administering first
aid to the wounded.
Officers assigned to the venue near Mandalay Bay Drive and Las Vegas Boulevard heard the
initial gunshots followed by a long burst of gunfire. Detective Balonek, who was on Mandalay
Bay Drive east of Las Vegas Boulevard, believed the gunfire was coming from inside the Las
Vegas Village, or from an elevated position. He retrieved his binoculars from his vehicle and
scanned the north facing tower of Mandalay Bay. Approximately three-quarters of the way up
the tower on the north end, Detective Balonek observed a silhouette of a male standing in a
shooting position several feet back from a window. Detective Balonek could see the smoke from
the male shooting, however, no muzzle flashes were observed. Detective Balonek could not get
14

Security Officer Campos

Exhibit A, Pg. 105

on the radio so he switched to the Northeast Area Command channel and broadcasted the
shooters location.
At the same time inside Mandalay Bay, Engineer Schuck was in room 62-207 working on a leak
when he was directed by his radio dispatcher and supervisor to respond to the 32nd floor stairwell
in the 100 wing to remove the “L” bracket that Security Officer Campos had called and reported.
Engineer Schuck utilized the 200 wing service elevator to go down to the 32nd floor. He gathered
his drill and other small tools needed to remove the bracket and walked through the Center Core
from the 200 wing to the 100 wing. Engineer Schuck walked approximately one third of the way
up the hallway when he observed Security Officer Campos poke his head into the hallway from
a space between two rooms on Engineer Schuck’s right hand side.
Engineer Schuck heard the sound of rapid gunfire coming from the end of the hallway. Security
Officer Campos looked out from his position and yelled for Engineer Schuck to take cover.
Engineer Schuck immediately took a step to his left into the alcove between two rooms. Gunfire
erupted down the hallway towards his direction. Engineer Schuck felt the concussion of the
rounds pass by where he was taking cover. An unknown object struck him in his back without
causing serious injuries other than a small bruise. Engineer Schuck also stated he could see
blood coming from Security Officer Campos’ calf area.
Below on the 31st floor, LVMPD Officers Varsin and Hendrex along with Security Managers
Oelke and Umstott walked up the 100 wing when they heard gunfire coming from the 32nd floor.
They moved to the stairwell at the end of the hall. As they got closer to the stairwell, the gunfire
continued and they smelled gunpowder. They entered the 100 wing stairwell and proceeded up
to the door of the 32nd floor. They posted up to block any possible escape by the shooter.
Detective Clarkson, assigned to the event in uniform, was on Las Vegas Boulevard north of
Mandalay Bay Drive when he heard the initial shots and radio traffic advising of multiple
casualties inside of the Las Vegas Village. Detective Clarkson and other officers took cover and
began searching for the shooter believing the shots were coming from the west. As patrol cars
and a prisoner transport van arrived at the intersection, Detective Clarkson and other officers
moved towards the vehicles for cover with the intention to move to Mandalay Bay.
CCAC patrol officers responded to the scene to assist. Officers Cook and Haynes arrived near
Las Vegas Boulevard and Mandalay Bay Drive and parked their patrol vehicle. Officers Cook
and Haynes moved towards the group that Detective Clarkson was with.
As the officers moved behind the patrol vehicles, they started receiving direct gunfire which
impacted the ground and patrol vehicles around them. Detective Clarkson received a gunshot
wound to the neck while taking cover behind a patrol vehicle. Officer Cook was struck by a bullet
in his right bicep that continued into his chest.
While behind the vehicles, the officers realized the gunfire was coming from an elevated position
and was directed at the patrol vehicles. During breaks in the gunfire, officers moved in teams of
two from the patrol vehicle to a block wall for better cover. Detective Clarkson and Officer Cook
were both transported to the hospitals by separate LVMPD vehicles.

Exhibit A, Pg. 106

As the gunfire continued, officers inside the event moved through the Las Vegas Village and
provided direction for people trying to exit. This included the actions of Officer Hartfield who was
attending the concert in an off-duty capacity and was mortally wounded while taking police
action. Officers located wounded persons and began first aid measures and coordinated medical
efforts with off-duty medical personnel who were attending the concert.
Officers also directed people to the exits and towards positions of cover and concealment.
Exterior officers on the east side of the Las Vegas Village were swarmed by people as they fled
the gunfire. Officers directed them to continue east and north as they recognized the gunfire was
coming from Mandalay Bay. As officers began to encounter wounded civilians, casualty
collection points were set up and first aid was rendered. Officers assisted in getting the wounded
to hospitals via ambulances, private vehicles and patrol cars.
Exterior officers on the west side of the Las Vegas Village along Las Vegas Boulevard
encountered people as they fled the venue. Officers knew the gunfire was coming from Mandalay
Bay and directed people to stay behind cover and move to the north, away from gunfire. Officers
encountered several wounded people and provided first aid until they could be taken to medical
personnel. As officers moved south they formed Strike Teams and moved towards Mandalay
Bay.
Sergeants Richmond, Riddle, and Van Nest each formed Strike Teams from overtime officers
and patrol officers responding to the venue. The Strike Teams moved west across Las Vegas
Boulevard and into the parking lot of the Luxor Hotel, then south onto the Mandalay Bay property.
Upon entering Mandalay Bay, Strike Teams coordinated efforts with other LVMPD officers and
security personnel already inside the casino.
As Strike Teams entered the hotel through the main valet, they met hotel security and were
directed to the Center Core guest elevators. Each group was given information the shooter was
possibly on the 29th or 31st floors and taken there by elevator. After each group of officers were
taken to the upper floors, they instructed the hotel security guards to lock out the elevators. A
Strike Team, which included two SWAT officers, was taken to the Foundation Room located on
the top floor. Once inside the bar, officers began to move occupants to a safe location and clear
the bar.
On the 32nd floor, Security Officer Campos and Engineer Schuck were still pinned down in the
hallway. Engineer Schuck heard another round of rapid gunfire and believed it was being fired
towards the outside of the building. During a small break in the gunfire, Engineer Schuck and
Security Officer Campos ran from their position back towards the Center Core. Engineer Schuck
was checked for injuries by Engineer Alsbury who arrived on the 32nd floor with armed Mandalay
Bay Security Officers. Engineer Schuck stated the gunfire continued for several more long rapid
fire volleys with short breaks between volleys. He described the breaks in fire lasting only 5-6
seconds before the gunfire would continue.
As LVMPD officers arrived on the 32nd Floor, they proceeded up the 300 wing, officers made
entry into rooms and searched for occupants. Engineer Schuck redirected the officers to the 100
wing where the shooting had been coming from. The sound of gunfire had ceased so the officers
conducted slow and methodical evacuations as they moved up the hallway.
Exhibit A, Pg. 107

After hearing the update of the shooters location, SWAT Officer O’Donnell and two patrol officers
left the group clearing the Foundation Room and responded to the 32nd floor. Upon exiting the
elevator, they encountered several officers already on the floor. The officers were moving up the
hallway towards the suspect’s room.
Engineer Shuck locked out the elevators to keep guests from ascending the tower.
Police personnel on the 32nd floor included a sergeant, SWAT officer, and patrol officers from
the Las Vegas Village and responding officers from various area commands. As occupants were
evacuated from their rooms, they were moved to the elevator bank and down the tower. Officers
discovered a small infant alone in one of the rooms. As evacuations continued, the nanny for
the infant was located in a room across the hall and reunited with the child. The officers stopped
evacuations approximately two thirds of the way up the hall.
At the Las Vegas Village, people who were hiding in multiple locations were evacuated. Officers
located several people hiding underneath the concert stage and inside tour buses located next
to the stage. Additional teams of officers arrived and swept the remaining areas of the Las Vegas
Village. Once evacuations were completed, the scene was secured around the Las Vegas
Village.
SWAT Officer Hancock, along with K9 Sergeant Bitsko and K9 Officer Newton went to the 31st
floor and came up the stairs to the 32nd floor. At the door, they met with LVMPD Officers Hendrex
and Varsin and Mandalay Bay security personnel. Officer Hancock attempted to open the first
of two doors to enter the hallway but could not due to the “L” bracket described earlier.
After the Strike Team arrived in the stairwell, SWAT Officer Hancock and K9 Sergeant Bitsko
manually breached the inner door leading to the foyer of the 32nd floor. From the foyer, the door
was cracked open enough to see the doors to rooms 32-135 and 32-134. Both doors were closed
and a room service cart was located in front of room 32-134. A white table cloth was draped over
the service cart with various items on top of the table cloth. Officers observed wires leading from
the service cart to room 32-134 and believed the suspect may have set some type of improvised
explosive device.
A decision was made to enter room 32-135 utilizing an explosive breach. Officers in the stairwell
notified the officers in the hallway that an explosive breach would be utilized. Over the radio they
became aware of the extent of injuries inside the Las Vegas Village. No gunfire had been heard
from the suspect’s room for approximately 40 minutes. It was decided entry was necessary to
the room to determine if the suspect was still inside and to stop any further shooting from the
room. SWAT Lieutenant Huddler was advised by SWAT Officer Hancock that the door to room
32-135 was going to be breached using explosives. K9 Officer Newton stepped into the hallway
and utilized a ballistic shield to provide cover for SWAT Officer Hancock as he set the breach on
the door while K9 Sergeant Bitsko covered the door to 32-134. K9 Sergeant Bitsko observed a
camera on the food cart in the hallway. He covered the camera, and turned it away from the
doorway while Officer Hancock hung the explosive on the door to room 32-135. Once the charge
was hung on the door, the officers returned to the stairwell.

Exhibit A, Pg. 108

The approval for the breach was given by SWAT Lieutenant Huddler. The officers were notified
over the radio, the door to room 32-135 was going to be breached and to take cover. K9 Sergeant
Bitsko utilized the ballistic shield to keep the door from the foyer to the hallway open in case the
explosion damaged it. SWAT Officer Hancock observed approximately 12 officers now in the
stairwell behind him. He designated those that would be making entry into the suspect’s room
and others would be the downed officer rescue unit if needed.
The entry team consisted of K9 Sergeant Bitsko, K9 Officer Newton, SWAT Officer Hancock,
Officers Donaldson, Trzpis and Walford. Officers Burns and Thiele were assigned to post at the
door upon the team’s entry to guard the hallway. The explosive breach was made into room 32135 and broadcasted over the radio. The officers opened the stairwell door enough to see the
doorway to 32-135 and observed the breach was successful and the door was open into the
room. Inside the room, they observed a rifle with a scope and bipod on the floor just inside the
door. The officers waited for approximately 30 seconds before leaving the stairwell to see if there
was any reaction from Paddock.
Moving slowly and methodically, K9 Officer Newton entered first into the hallway with the shield
followed by the officers from stairwell. SWAT Officer O’Donnell and Officer Magsaysay joined
the Strike Team as they entered Paddock’s room.
From behind the shield, the Strike Team made entry into room 32-135. The team split into 2
teams as they entered. Team 1 went left into a bedroom and cleared it. Team 2 went to the right
and yelled Paddock was down. After clearing the bedroom, Team 1 held at the doorway into the
main living area of the room.
Team 2 encountered Paddock lying on the floor on his back. A small frame revolver was
observed on the ground above Paddock’s head. Apparent blood was located on the revolver
and a pool of blood had formed around Paddocks head. The officers believed Paddock had a
self-inflicted gunshot wound. The large window at Paddock’s feet was broken out and the curtain
was blowing into the room. On the floor next to the Paddock’s feet was a small sledge hammer
and Paddock was laying on top of a rifle. The officers also observed several more rifles, spent
ammunition throughout the living area, and several loaded magazines.
Team 2 continued through the living area to the right and encountered a closed, locked
connecting door leading to the adjoining room 32-134. Team 1 moved through the living space
up to Team 2 near the closed connector door. SWAT Officer Hancock and Officer Walford
attempted to kick the door open but determined it was a solid wood door inside a metal frame.
It was decided a second explosive breach was needed to gain entry into the adjoining room.
SWAT Officer Hancock breached the door. Immediately following the explosive breach, SWAT
Officer O’Donnell, had one negligent discharge of a three round burst from his rifle. Officers in
the hallway heard the shots fired and broadcasted shots had been fired inside the room. Officers
flooded into room 32-134 through the breached adjoining connector door.
As room 32-134 was cleared, several rifles were found inside the room. A small hallway
separated the main area of the room from the bathroom and main door. Another food service
cart draped in a white table cloth was in this hallway. On the cart was a laptop computer which
Exhibit A, Pg. 109

was on and the monitor showed a live feed of the hallway where the officers had come from.
Inside the room, one of the large windows was also broken out.
A complete recheck of the rooms was made to ensure a person was not hiding under any
furniture. Several suitcases were observed throughout the rooms. Many of the suitcases
contained several loaded magazines. Officers also observed a camera attached to the peephole
on the main door of room 32-135. Once the recheck was completed, the SWAT and K9 officers
left the room due to reports of other shootings at other locations.
Sergeant Matchko was in the hallway and entered the rooms once they were cleared. Along with
officers still in the room, Sergeant Matchko secured the crime scene. Sergeant Matchko was
contacted by the command post and advised to attempt to locate any information reference
Paddock. Sergeant Matchko directed officers to look throughout the room in an attempt to locate
any cell phones or identification for Paddock. Identification and cellular phones were located, as
well as several room keys and player cards with Paddock and Danley’s name on it. Pictures of
the items were taken and sent to the command post as ordered. The officers also rolled Paddock
onto his side to check for identification but found none. After the search for identification was
completed, the officers exited and secured the room.
As officers cleared the Las Vegas Village, multiple reports of active shooters along Las Vegas
Boulevard at various hotel properties were broadcasted. Several officers from the exterior Las
Vegas Village posts joined Strike Teams and left to address those reports. As the active shooter
reports were cleared and determined to be unfounded, officers assigned to the Las Vegas Village
responded back to the command post for reassignment.
Officers assigned to the Las Vegas Village remained on post until they were relieved the next
morning. Officers maintained the security of the Las Vegas Village and the 32nd floor of the
Mandalay Bay crime scene as detectives and Crime Scene Analysts responded and began the
investigation.
VI.

SCENE DESCRIPTIONS

Route 91 Venue
Responsibility for documenting the venue scene was transferred from the LVMPD Homicide
Section to the FBI Evidence Recovery Team on October 2, 2017 at approximately 1445 hours.
The following scene description of the Las Vegas Village venue was authored by the LVMPD
Homicide Section.
The Route 91 Harvest Festival was an open air music event held at the Las Vegas Village. The
festival was dimly lit with street lights, variable stage lighting and lights from temporary light
stands on the perimeter. There was a chain link fence, with dark netting surrounding the entire
venue. On the west perimeter of the venue there was a decorative concrete block wall between
Las Vegas Boulevard South and the chain link fencing. This wall ran nearly the entire length of
the west side of the venue, from East Mandalay Bay Road to East Reno Avenue.

Exhibit A, Pg. 110

The surface of the venue consisted of black asphalt, with defined seating areas covered with
artificial grass on both the northwest and south ends of the venue and vendors throughout. The
northwest artificial grass area was used for lawn chair seating. The large artificial grass areas
on the southern end was surrounded by seating, food vendors and portable bathrooms. A large
seating area with elevated bleachers and a covered VIP area was oriented near the southwest
corner of the venue. Four (4) pedestrian gates ran along the west side of the venue.
The Coca-Cola suites, additional seating areas, vendors, the medical tent and three (3)
pedestrian gates were located on the east side of the venue. The event’s Command Post (CP),
a television broadcast tent and one (1) pedestrian gate were oriented on the north end of the
venue.
The main stage was oriented on the south side of the venue. The main stage was covered by
green roofing and the sides were covered with black mesh. The main stage viewing area was
located in the southern portion of the venue, north of the main stage and was divided into two
(2) seating areas by metal pedestrian fencing. The fencing ran from a production tent, located in
the center of the viewing area, and eventually encompassed the main stage. In addition to the
fencing separating the east and west side grass areas, the production tent and vendors, helped
to define the two (2) areas. Production vehicles, concert buses, and trailers were oriented south
of the main stage.
Location and Description of the Bodies
A total of thirty one (31) bodies were located, documented, and eventually recovered from the
inside of the venue and on the exterior perimeter. Clark County Coroner Investigators responded
and assisted the LVMPD Homicide Detectives and Crime Scene Analysts conduct the
preliminary death investigations. Each victim was given an individual Clark County Coroner’s
Case and Seal Number. The time of death was determined to be 0545 hours for those recovered
from the venue and exterior perimeter. Davis Funeral Home responded and transported the
deceased to the CCOCME for a complete examination.

Exhibit A, Pg. 111

1. Jack Reginald Beaton
2. Christopher Louis Roybal
3. Lisa Marie Patterson
4. Adrian Allan Murfitt
5. Hannah Lassette Ahlers
6. Austin William Davis
7. Stephen Richard Berger
8. Stacee Ann Etcheber
9. Christiana Duarte
10. Lisa Romero-Muniz
11. Heather Lorraine Alvarado
12. Denise Cohen
13. Kurt Allen Von Tillow
14. Brennan Lee Stewart
15. Derrick Dean Taylor
16. Kelsey Breanne Meadows
17. Jennifer Topaz Irvine
18. William W. Wolfe Jr.
19. Carly Anne Kreibaum
20. Laura Anne Shipp
Exhibit A, Pg. 112

Four (4) bodies were located and recovered near the medical tent in the northeast portion of the
venue.
21. Carrie Rae Barnette
22. Jordyn Nicole Rivera
23. Victor Loyd Link
24. Candice Ryan Bowers
Seven additional victims were located and recovered from the exterior perimeter. Their body
positions and locations suggested they had been placed at these locations. The descriptions of
their injuries were obtained from the Clark County Coroner Investigator and the photographs
taken by an LVMPD Crime Scene Analyst.

25. Jordon Alan McIldoon
26. Keri Lynn Galvan
27. Dorene Anderson
28. Neysa C. Tonks
29. Melissa V. Ramirez
30. Brian Scott Fraser
31. Tara Ann Roe
Exhibit A, Pg. 113

The remaining victims were transported to various hospitals throughout the greater Las Vegas
valley and pronounced deceased at their respective locations. Clark County Coroner
Investigators responded and assisted the LVMPD Crime Scene Analyst with documentation of
the decedents’ injuries. Each victim was given an individual Clark County Coroner’s Case and
Seal Number. The time of death was determined by the treating physicians. Davis and Hites
Funeral Home Services transported all victims from the hospital to the CCOCME for a complete
examination. The descriptions of their injuries were obtained from photographs taken by LVMPD
Crime Scene Analyst.
DESERT SPRINGS HOSPITAL
32. Bailey Schweitzer
33. Patricia Mestas
34. Jennifer Parks
35. Angela Gomez
SPRING VALLEY HOSPITAL
36. Denise Burditus
37. Cameron Robinson
38. James Melton
VALLEY HOSPITAL
39. Quinton Robbins
SUNRISE HOSPITAL
40. Charleston Hartfield
41. Erick Silva
42. Teresa Nicol Kimura
43. Susan Smith
44. Dana Leann Gardner
45. Thomas Day Jr.
46. John Joseph Phippen
47. Rachel Kathleen Parker
48. Sandra Casey
49. Jessica Klymchuk
50. Andrea Lee Anna Castilla
51. Carolyn Lee Parsons
52. Michelle Vo
53. Rocio Guillen
54. Christopher Hazencomb
55. Brett Schwanbeck
Exhibit A, Pg. 114

UMC HOSPITAL
56. Rhonda M. LeRocque
57. Austin Cooper Meyer
58. Calla-Marie Medig
Mandalay Bay 32nd Floor

Scene
The scene was located in the 100-wing of the 32nd floor of the Mandalay Bay. The 100-wing
consisted of a north-south oriented hallway with even numbered rooms on the east side and odd
numbered rooms on the west side. The rooms ranged in number from 32-101 to 32-135. Room
32-135 was at the far north end of the 100-wing with south facing double entry doors. Room 32134 was at the north end of the 100-wing and was a connecting room to 32-135. Room 32-134
was east of the entry to 32-135, with a single entry door that faced west. A door leading to a
foyer room which led to the stairs was at the north end of the hallway, west of the entry to 32135, with a single entry door that faced east.

Exhibit A, Pg. 115

100-Wing Hallway
The hallway consisted of alcoves containing access to four rooms, two rooms on the east side
of the hallway and two rooms on the west side of the hallway, with a segment of the hallway
between each alcove. Each alcove had a ceiling mounted light with two light shades, an exterior
blue shade and an interior white shade, as well as a light sconce on the walls between the doors.
Decorative molding was mounted to the walls the entire length of the hallway. There were
numerous bullet fragments throughout the hallway floor, from the north side of the alcove of
rooms 32-101 through 32-104 to the alcove of 32-133 through 32-135.
A room service cart containing numerous plates, food items, and silverware was on the east side
of the hallway, in front of room 32-134. A black "Logitech" camera with connected wires was on
top of the cart, at the south end. The camera was positioned in a south direction (down the
hallway) and taped to a plate. A white camera with connected wires was attached to the lower
portion of the cart, at the north end. The camera was positioned in a south direction (down the
hallway). Wires from both of the above described cameras went under the door and into room
32-134.
Room 32-135
Room 32-135 was a hotel suite located at the far north end of the hallway with south facing
double entry doors. The east door had two bullet holes above the door handle. The bullets
traveled north to south, entering the interior side of the door and exiting the exterior (hallway). A
camera was taped to the interior side of the east door inserted into the peephole. A hole was
partially drilled into the bottom of the south wall, east of the entry doors. The west door was
damaged (occurred during the explosive breach) and unattached to the door frame. The door
was lying on the floor inside of the suite. There were bullet holes in the west door, with the bullets
traveling north to south, entering the interior side and exiting the exterior (hallway).
The suite consisted of a south foyer room, a west bedroom (master bedroom) with attached
bathroom, and a north sitting area, a central bar/kitchenette, and a second bathroom east of the
central bar/kitchenette. A southeast living room which contained a couch, chairs, an
entertainment center/cabinet and a wall mounted TV. A connecting door which led to room 32134 was located southeast of the living room on the south wall. The entire north end of the suite
consisted of floor to ceiling windows.
Foyer Inside Room 32-135
The foyer had a table along the west wall. There was a white "Babysense" camera pointed in
the direction of the front entry doors at the south end of the table, and a black mini refrigerator
at the north end with a white styrofoam cooler on top. There were casings scattered on the floor
of the foyer, and on the table along the west wall. A black rifle with the muzzle pointed south,
was at the northeast portion of the foyer on the floor.

Exhibit A, Pg. 116

An east-west hallway extended from the east side of the foyer. A black rifle on a bipod with the
muzzle pointed west, and a drill bit partially covered by a white towel were at the west end of the
hallway on the floor.
West Bedroom (Master Bedroom)
The bedroom was located west of the sitting area. There were east facing double entry doors
located northwest of the foyer in the west wall of the sitting area. The room had a desk with a
chair along the north wall, just inside the entry doors. There were tools on the desk and the chair.
A trashcan was on the floor east of the desk that had numerous empty ammunition boxes inside.
There was also a white bag on the floor that had empty ammunition boxes inside as well as a
broken Dell laptop computer. Two boxes containing empty ammunition boxes were on the floor
behind the entry doors.
A pillar was west of the desk. An empty red gym bag and an "Anran" home security system box
were on the floor west of the pillar. A chaise lounge was along the south wall with an open
suitcase containing clothing inside and a drill on top. There were chargers plugged into the south
wall, west of the chaise lounge.
The bed was along the south wall with nightstands on either side. The following items were
located on the bed: a Dell laptop computer, a passport in the name of "Stephen Paddock", four
Home Depot gift cards, a checkbook, and a cash out voucher for the Palms Casino dated
8/28/17. There were three suitcases west of the bed: two of which were empty and one had
clothing inside. A television was on a dresser to the north of the bed. There were drill bits and
tools on the top of the dresser. Eight empty rifle magazines were on the floor below the west end
of the dresser. An open suitcase with a tool box inside was east of the dresser. A closet was in
the wall east of the bed with a single shirt and a white bathrobe hanging inside.
The attached southeast bathroom had a tub along the north wall with two glass vacuum suction
holders on top of the tub ledge, a sink counter along the south wall with toiletries to include a
prescription for "Diazepam 10 MG" in the name of "Steve Paddock", and two inhalers. The toilet
room was to the east with a pair of boxers and a pair of shoes on the floor.
Sitting Area
The sitting area was north of the foyer. Floor to ceiling windows covered by curtains extended
along the length of the north end of the suite. There was a couch along the north side of the
room, a coffee table south of the couch, and two chairs pushed together (facing one another)
south of the coffee table. Pillars were located along the north wall near the northwest corner and
along the north wall near the northeast corner of the sitting area, at the northwest corner of the
living room.
A rifle magazine was between the west and central couch cushions of the north couch. The
coffee table was covered by white towels. A rifle and an empty rifle magazine were on the coffee
table. There were four rifles sitting on the pushed together chairs and a rifle magazine on the
north arm of the east chair. One rifle was on the floor east of the chairs. There were two suitcases

Exhibit A, Pg. 117

on the floor east of the coffee table containing numerous loaded rifle magazines. An empty rifle
magazine was on the floor, east of the suitcases.
There was a stack of 14 loaded rifle magazines on the west side of the northeast pillar. A blue
plastic tube with a snorkel mouthpiece attached with green tape to the east end and a black
funnel with a fan inside at the west end extended from the east side of the suitcases, across the
coffee table, to the west side of the room, adjacent to the doors of the west bedroom.
A chair facing south, with a side table to the east, were at the west end along the northeast bank
of windows. The window located immediately east of the northwest pillar was shattered with
glass on the floor below it. Numerous casings were on the floor at the base of the window, south
into the room, and on the seat of the chair. A blue and yellow "Estwing" hammer was on the floor
at the east side of the northeast pillar, south of the broken window. The head of the hammer had
tape wrapped around it. The curtains in place over the broken window were damaged. Two rifles
with bipods were on the floor south of the chair.
A high top table was centrally located along the northeast bank of windows with a loaded rifle
magazine on the southeast end of the table. An open suitcase was on the floor south of the table
with numerous loaded rifle magazines inside. A rifle with a bipod was on the floor southeast of
the table. There were casings on the floor surrounding the table.
Decedent Stephen Paddock
Paddock was on the floor south of the chair and side table. He was wearing black pants, a long
sleeve brown shirt, black gloves, and grey shoes. Paddock was on his back with his head to the
south, feet to the north, and arms at his sides. There was apparent blood surrounding his nose
and mouth, and on the floor under his head. There was also apparent blood on the front of his
shirt. A rifle was on the floor under his legs. A grey box cutter was on the floor between his feet.
There were casings on the floor surrounding him. A silver/black colored "Smith & Wesson"
revolver with apparent blood on it was on the floor south of Paddock's head.
Bar/Kitchenette
The central bar/kitchenette was south of the sitting area east of the foyer and north of the eastwest hallway. There was a north bar counter (east-west orientation) with three chairs on the
north side of the counter. There were three rifles on the floor north of the west end of the counter
with a backpack under them. One rifle was on the seat of the westernmost chair; one rifle was
on the seat of the easternmost chair; and one rifle was located on the west end of the bar counter.
An empty silver colored rolling case was on the floor north of the counter, at the east end. A
Luxor sticker and a "29" sticker were on the back of the case.
At the west end of the bar counter was an "Anran" monitor with a video feed to the previously
described camera on the lower portion of the room service cart in the hallway, a laptop computer,
which provided a live feed to the camera attached to the peephole of the door, and a Samsung
cell phone in a black case.

Exhibit A, Pg. 118

Centrally located on the bar counter were bank cards and other cards in the name of "Stephen
Paddock" and room key card packets. At the east end of the bar counter was a black holster, a
black glove, binoculars, blue hat, brown wallet, tape roll, credit cards and a Nevada ID in the
name of "Stephen Paddock", a Player's card in the name of "Marilou Danley", valet ticket, a
notepad with "unplug phones" written on it, and a white handheld monitor, as well as a black
ZTE cell phone with the front and back cameras covered with tape and a Samsung Galaxy S6
active in a black case.
At the southwest corner of the bar was a sink. There were two loaded rifle magazines and a
"Tundra” fire extinguisher on the sink counter.
Living Room
The southeast living room was east of the bar/kitchenette at the east end of the east-west
hallway. There was a television mounted on the south wall with an entertainment center/cabinet
below, a couch to the north and east, and an orange chair to the west. The couch cushions were
off of the east couch and piled on the north couch and on the floor. A table was along the north
side of the north couch with four chairs.
A side table was west of the north couch. A "Meade" spotting scope was on the floor north of the
side table. A pink piece of paper with written measurements on one side was on the floor west
of the east couch.15
An open black suitcase containing soft rifle cases inside was on the floor north of the cabinet.
There were three casings on the floor west of the side table and at the east end of the east-west
hallway.16
There was a bullet hole through the east arm of the orange chair; two bullet holes into the cabinet
along the south wall; and one bullet hole into the south wall, between the entertainment
center/cabinet and the connecting door to 32-134.17
There were two suitcases along the west wall. A blue large bag with numerous towels, soft rifle
cases, and scope covers inside were also along the west wall.
Room 32-134
Room 32-134 was a single connecting hotel room, south of 32-135. The connecting door was
located at the south end of room 32-135 in the southwest corner of the southeast living room.
There was damage to the south adjoining door frame18and the damaged door was on the floor
inside room 32-134. The main entry door to the room was west facing, accessing the hallway. A
room service cart with an open laptop computer on the east end was in the entry hallway, east
15 This was the same note originally located on the table near Paddock’s body. The wind blew it off of the
table to this location.
16 These casings came from the SWAT Officer’s rifle.
17 These bullet holes came from the SWAT Officer’s rifle.
18

Occurred during the second explosive breach

Exhibit A, Pg. 119

of the entry door. There were wires connected from the laptop that ran under the entry door.
There was a video feed visible on the laptop of the hallway looking south from the previously
described black "Logitech" camera attached to the hallway room service cart.
The room was furnished with two beds with a nightstand in between along the south wall, a desk,
dresser, and chair along the north wall, a television mounted on the north wall, and floor to ceiling
windows on the east. The southernmost window was shattered with glass on the floor below it.
There were nine loaded rifle magazines on top of the dresser. The dresser drawers were open
and the bottom was broken. There were three rifles with bipods on the east bed and several
casings. One cartridge case was on the floor west of the east bed. There were two rifles on the
west bed, one of which was a bolt action. A pair of black gloves was on the west side of the west
bed. A pair of tan sandals were on the floor north of the west bed. A bullet hole was in the north
wall corresponding with a hole in the south wall of the living room, and one bullet hole was in the
comforter at the north end of the east bed.
There were two closets along the west wall with the door to the attached southwest bathroom.
The bathroom had a sink counter along the south side and tub to the north. Clothing was on the
floor under the sink counter along with a trashcan. There was a snorkel tube located inside the
trashcan.
VII.

EVIDENCE RECOVERY

Physical Evidence
During the course of the investigation, several items of evidentiary value were located and
impounded by LVMPD Crime Scene Analysts and FBI Evidence Recovery Team. The following
is a summary of key pieces of evidence located during searches of multiple locations.
Picture numbers listed below correspond with pictures attached in Appendix A of this report.
Mandalay Bay Location
32nd Floor – 100 Wing – Stairwell Foyer Room (Picture 1)
Metal “L” bracket with three screws securing it to the interior door/frame.
32nd Floor – 100 Wing Hallway (Pictures 2-4)
Two surveillance cameras from room service cart outside room 32-134.
Bullet fragments
32nd Floor – Room 32-135 – Main Room (Pictures 5-17)
Make
Model
Serial Number
Description
Colt
M4 Carbine
LE451984
AR-15 .223/5.56 with a bump
vertical fore grip and 100
magazine. Front sight only.
Noveske
N4
B15993
AR-15 .223/5.56 with a bump
vertical fore grip and 40
magazine. EOTech optic.

stock,
round
stock,
round

Exhibit A, Pg. 120

LWRC

M61C

24-18648

AR-15 .223/5.56 with a bump stock,
vertical fore grip and 100 round
magazine. No sights or optics.
POF USA
P-308
UA-1600204
AR-10 .308/7.62 with a bipod, scope and
25 round magazine.
Christensen CA-15
AR-15 .223 Wylde with a bump stock,
CA04625
Arms
vertical fore grip and 100 round
magazine. No sights or optics.
POF USA
P-15
PE-1600179
AR-15 .223/5.56 with a bump stock,
vertical fore grip and 100 round
magazine. No sights or optics.
Colt
Competition
CCR014544
AR-15 .223/5.56 with a bump stock,
vertical fore grip and 100 round
magazine. No sights or optics.
Smith
342 AirLite Ti CDZ7618
.38 caliber revolver with 4 cartridges, 1
& Wesson
expended cartridge case.
LWRC
M61C
AR-15 .223/5.56 with a bump stock,
5P03902
vertical fore grip and 100 round
magazine. EOTech optic.
FNH
FM15
AR-10 .308/7.62 with a bipod, scope and
FND000905
25 round magazine.
Daniel
DD5V1
AR-10 .308/7.62 with a bipod, scope and
DD5007426
Defense
25 round magazine.
FNH
FN15
FNB024293
AR-15 .223/5.56 with a bump stock,
vertical fore grip and 100 round
magazine. EOTech optic.
POF USA
P15
03E-1603178
AR-15 .223/5.56 with a bump stock,
vertical fore grip and 100 round
magazine. EOTech optic.
Colt
M4 Carbine
LE564124
AR-15 .223/5.56 with a bump stock,
vertical fore grip and 100 round
magazine.
Daniel
M4A1
DDM4123629
AR-15 .223/5.56 with a bump stock,
Defense
vertical fore grip and 100 round
magazine. EOTech optic.
LMT
Def. 2000
LMT81745
AR-15 .223/5.56 with a bump stock,
vertical fore grip and 100 round
magazine. No sights or optics.
Daniel
DDM4V11
DDM4078072
AR-15 .223/5.56 with a bump stock,
Defense
vertical fore grip. No magazine. EOTech
optic.
Sig Sauer
SIG716
23D020868
AR-10 .308/7.62 with a bipod, red dot
optic and 25 round magazine.
Daniel
DD5V1
DD5008362
AR-10 .308/7.62 with a bipod and scope.
Defense
No magazine.
Blue plastic hose with funnel, fan and SCUBA mouthpiece attached.
Exhibit A, Pg. 121

Surveillance camera mounted to room door peephole.
Baby monitor camera (not mounted).
Surveillance camera mounted to room door peephole.
Small sledge hammer.
Laptop computer.
Surveillance camera monitor.
Spotting scope.
Binoculars.
Expended .223/5.56 cartridge casings (approximately 1,050).
Cellular phones.
Nevada Driver’s License – Stephen Paddock.
Mlife players card – Marilou Danley.
Polymer 40 round AR-15 magazines (loaded).
Steel 100 round AR-15 magazines (loaded).
Polymer 25 round AR-10 magazines (loaded).
Live Ammunition (approximately 5,280).
Handwritten note with distance/bullet drop calculations.
Suitcases, duffel bags, soft rifle cases, towels.
32nd Floor – Room 32-135 – Bedroom Suite (Picture 18)
Laptop computer (on bed).
Disassembled laptop computer missing hard drive (on floor).
Power hand drills.
Empty ammunition boxes and plastic bags.
Scuba mask.
Loose ammunition.
Miscellaneous hand tools and drill bits.
Miscellaneous screws and mounting brackets.
Suitcases, towels.
Empty rifle magazines
32nd Floor – Room 32-134 – Hotel Room (Pictures 19-21)
Make
Model
Serial Number
Description
FNH
FN15
FNCR000383
AR-15 .223/5.56 with a bump stock,
vertical fore grip and 100 round
magazine. No sights or optics.
Ruger
American
695-93877
.308 caliber bolt action rifle with scope.
LMT
LM308MWS
LMS18321
AR-10 .308/7.62 with a bipod and red
dot scope. No magazine.
Ruger
SR0762
AR-10 .308/7.62 with a bipod, scope and
562-13026
25 round magazine.
LMT
LM308MWS
LMS18300
AR-10 with a bipod, scope and 25 round
magazine.
Laptop computer connected to hallway surveillance cameras.
Polymer 25 round AR-10 magazines (loaded).
Expended .308/7.62 cartridge casings (8).
Exhibit A, Pg. 122

Mandalay Bay – East Valet – Space 317 (Paddock’s Vehicle. Pictures 22-24)
2017 Chrysler Pacifica, Nevada/74D401 towed to FBI garage.
20x2 pound containers of exploding targets.
10x1 pound containers of exploding targets.
2x20 pound bags of explosive precursors.
Polymer 25 round AR-10 .308/7.62 magazines (loaded).
Polymer 40 round AR-15 .223/5.56 magazines (loaded).
Boxed ammunition.
Suitcases, towels.
McCarran Airport – Fuel Tanks – East Mandalay Bay Road/Haven Street (Pictures 25-27)
Bullet fragments
1372 Babbling Brook Court Mesquite, Nevada (Paddock’s House)
Make
Model
Serial Number
Description
Smith
SW99
SAB5974
9mm semi-automatic pistol.
& Wesson
Smith
M&P9
HDU4086
9mm semi-automatic pistol.
& Wesson
Glock
17
BCGM344
9mm semi-automatic pistol.
Mossberg
500
V0397109
12 gauge pump action shotgun.
Sig Sauer
516
20J036999
AR-15 .223/5.56 rifle with a bipod and
scope.
Arma-Lite
SPRM001
M-10-13530
AR-15 .223/5.56 rifle with a bipod and
scope.
Mossberg
590
V0433557
12 gauge pump action shotgun.
LWRC
M61C-IC-A5
24-19038
AR-15 .223/5.56 rifle with a bipod and
scope.
Mossberg
590
V0348193
12 gauge pump action shotgun.
Mossberg
930
AF0001141
12 semi-automatic gauge shotgun.
Arma-Lite
SPRM001
M-10-12006
AR-15 .223/5.56 rifle with a bipod and
scope.
Sig Sauer
516
20K046207
AR-15 .223/5.56 rifle, with a bipod. No
sights or optics.
Lantac
LA-R15 Raven LT-0297
AR-15 .223 Wylde rifle with a bipod and
scope.
Mossberg
590
P833785
12 gauge pump action shotgun.
Arsenal
Saiga 12
H09423015L
AK-47 style semi-automatic 12 gauge
shotgun.
Arsenal
Saiga 12
H07420684
AK-47 style semi-automatic 12 gauge
shotgun.
Beretta
92F
C856302
9mm semi-automatic pistol.
FN
5.7
386215450
5.7mm semi-automatic pistol.
Handgun, shotgun, rifle ammunition.
Exploding targets.
Computer related items.
Exhibit A, Pg. 123

Soft body armor.
1735 Del Webb Parkway, Reno, Nevada (Paddock’s House)
Make
Model
Serial Number
Description
Smith
340
DCA2099
.357 caliber revolver.
& Wesson
Beretta
92A1
A098515Z
9mm semi-automatic pistol.
Pietro
Remington 870 Tactical
RS90036Z
12 gauge pump action shotgun.
Arms
Mossberg
590
V0187184
12 gauge pump action shotgun.
Glock
17 Gen4
BBVN828
9mm semi-automatic pistol.
Smith
M&P9
HHA9534
9mm semi-automatic pistol.
& Wesson
Smith
M&P9
HDL4053
9mm semi-automatic pistol.
& Wesson
Firearm ammunition.
Rifle magazines.
Computer related items.
Ammunition
Several types of ammunition were located within rooms 32-135 and 32-134 loaded into rifle
magazines for both the AR-15 and AR-10 style rifles. The AR-15 .223/5.56 rifle magazines were
loaded with hollow point and polymer tipped hollow point ammunition. The AR-10 .308/7.62 rifle
magazines and the bolt action rifle were loaded with Tracer, Frangible Incendiary, Armor
Piercing and Armor Piercing Incendiary ammunition.
A complete breakdown of the ammunition types loaded in the firearms, rifle magazines and
expended cartridge casings will be documented in the final report.
DNA
Several items of evidentiary value were collected for DNA analysis. At the time of this report the
DNA evidence collected has not yielded any significant results or indication that anyone else
was in the room.
Digital
There were approximately 1,965 leads investigated. There were approximately 21,560 hours of
video and 251,099 images obtained by investigators of the LVMPD and the FBI. Analysis found
529 sightings of Paddock.
Four laptop computers and three cellphones were located in 32-135 and 32-134. All laptop
computers and cellphones were given the FBI to be forensically analyzed. The forensic analysis
on all electronics located in 32-134 and 32-135 has been completed and the results of the
analysis is listed below.
Exhibit A, Pg. 124

Evidence Item HP Laptop Computer Recovered in Room 32-134
Browser Artifacts
The HP laptop computer contained internet artifacts from the following cloud storage services:
Dropbox.com, Box.com, and Microsoft One Drive. Dropbox and Microsoft One Drive were
installed on the laptop. Box.com was accessed through a web browser.
Google Maps
On 05-18-17 Google Map searches were performed for Venice Beach and Fenway Park.
The following queries were also made with Google Maps:











Royal Rooters’ Club, Boston, MA
Blandford Street. Station, United States
Boston University Questrom School of Business
Boston Hotel Buckminster, Beacon Street, Boston, MA
Boston Arts Academy
Official Red Sox Team Store
Official Red Sox Team Store, 19 Yawkey Way, Boston, MA
Venice Ale House
Fairmont Miramar Hotel, Santa Monica, CA
The Bungalow, 101 Wilshire Boulevard, Santa Monica, CA

Google Search Queries
On 05-18-17, searches were performed for "summer concerts 2017," "grant park functions,"
"biggest bear," "La Jolla Beach," "open air concert venues," "biggest open air concert venues
in USA," and "how crowded does Santa Monica Beach get."
On 09-04-17, searches were performed for "Las Vegas rentals," "Las Vegas condo rentals,"
"Las Vegas high rise condos rent," and "Las Vegas Ogden for rent."
On 09-05-17, searches were performed for "life is beautiful expected attendance," "life is
beautiful single day tickets," and "life is beautiful Vegas lineup."
On 09-15-17, searches were performed for "swat weapons," "ballistics chart 308," "SWAT
Las Vegas," "ballistic," and "do police use explosives."
Bing Search Queries
On 09-05-17, searches were performed for "Mandalay Bay Las Vegas," "Route 91 harvest
festival 2017 attendance," and "Route 91 harvest festival 2017."

Exhibit A, Pg. 125

The following websites were accessed using an IE private browser:












http://lineup.lifeisbeautiful.com/
https://www.google.com/maps?hl=en&tab=wl
https://lifeisbeautiful.com/ticket/
http://search.topvegascondos.com/i/the-ogden-downtown-las-vegas-condos-forrent
https://www.google.com/?
gws_rd=ssl#q=how+crowded+does+santa+monica+beach+get&spf=149508223676
1
https://www.vividseats.com/blog/category/all-concerts/
https://www.vividseats.com/blog/fenway-park-concerts-and-seating
https://www.vividseats.com/blog/the-14-best-outdoor-concert-venues-in-the-us
http://tsminteractive.com/what-are-the-most-crowded-beaches-in-america/
https://www.yelp.com/biz/santa-monica-state-beach-santa-monica
https://www.vividseats.com/blog/memorial-day-weekend-2017.html

The following websites were accessed using Internet Explorer:










www.grantparkmusicfestival.com/ 05-18-17 0419 hours
www.ticketmaster.com/ 05-18-17 at 0427 hours
ticketmaster.com/ 05-18-17 at 0431 hours
www.sandiego.org/ 05-18-17 at 0505 hours
sandiego.org/ 05-18-17 at 0505 hours
www.vividseats.com/ 05-18-17 at 0540 hours
www.lasvegascondoexperts.com/ 09-04-17 at 2212 hours
lasvegashighrisetour.com/ 09-04-17 at 2213 hours
www.thehighrisegroup.com/ 09-04-17 at 2214 hours

Evidence Item Dell Laptop Computer Recovered in Room 32-135
Computer forensic analysis of a Dell laptop Model E5570 revealed numerous internet searches
for open air venues. Additionally, several hundred images of child pornography were located on
the computer’s hard drive. The investigation into the source of these images is ongoing. The
following internet searches from this laptop are indicated below:
Google Search Queries










How tall is Mandalay Bay/ Unknown date
NV gun shows/ 09-02-17 & 09-30-17
Life is Beautiful 2017/ 09-20-2017
Excalibur Hotel & Casino/ 09-23-17
Las Vegas Academy of the Arts Performing Arts Center/ 09-23-17
Fremont Hotel & Casino/ 09-23-17
El Cortez Hotel & Casino/ 09-23-17
Family Courts & Services Center/ 09-23-17
Gary Reese Freedom Park/ 09-23-17
Exhibit A, Pg. 126









VIII.

Cashman Center/ 09-23-17
Cashman Field/ 09-23-17
Neon Museum/ 09-23-17
The Mob Museum/ 09-23-17
Discovery Children’s Museum/ 09-23-17 & 09-26-17
Arizona Charlie’s Decatur/ 09-23-17
Where is hard drive located on e5570/ 09-28-17
NHRA schedule 2017/ 09-30-17
SUSPECT AUTOPSY

On 10-06-17, at approximately 1625 hours, under CCOCME case 17-10064 and FBI incident
number 4-LV-2215061 an autopsy was performed on the body of Paddock at the CCOCME by
Doctor Lisa Gavin.
Decedent
Name:
Date of birth:
Gender:
Ethnicity:
Height:
Weight:
Hair:
Eyes:

Paddock, Stephen
04-09-53
Male
Caucasian
73 inches
224 lbs
Gray
Brown

Body bag seal #541486 removed at 1625 hours.
Specific Photography:
 Body bag seal
 Clothed body
 Pre-cleaned unclothed body
 Post-cleaned unclothed body
 Injuries
 X-Rays
The following persons were in attendance:
1)
2)
3)
4)
5)
6)
7)

Clark County Coroner Fudenberg
Forensic Pathologist Doctor Gavin
Detective Alsup
Detective Colon
SCSA Fletcher
FBI ERT Agents (2)
Forensic Technician Rosales

Exhibit A, Pg. 127

The following items of evidence were retained by the FBI’s Evidence Recovery Team:
1)
2)
3)
4)
5)
6)
7)
8)

One brown long sleeved shirt.
One pair of black pants.
One pair of white socks.
One pair of black slip-on shoes.
One pair of blue underwear.
Paper tissue from the decedent’s ears.
Print exemplars.
One projectile recovered from the decedent’s head.

Synopsis
On October 6, 2017, detectives from the LVMPD along with a LVMPD Crime Scene Analyst,
attended the autopsy of Stephen Paddock at the CCOCME. Also present were members of the
FBI Evidence Recovery Team who retained all collected evidence.
The exam room was secured by Clark County Coroner, John Fudenberg. Forensic Pathologist
Doctor Lisa Gavin performed the autopsy with one assistant.
The decedent was x-rayed, photographed and cleaned prior to Doctor Gavin’s exam.
Preliminarily, the injuries noted were on the posterior of both calves and a gunshot wound to the
upper palette inside the decedent’s mouth with obvious damage to the upper teeth.
The cause of Paddock’s death was an interoral gunshot wound and the manner of death was
ruled a suicide.
IX.

INVESTIGATION

Mandalay Bay Hotel Room
LVMPD officers located several documents, to include photographs, identifying Paddock as the
suspect who was lying on the floor with an apparent gunshot wound to the head. Also located
inside the room investigators found documentation related to Danley who was later identified as
the longtime girlfriend of Paddock.
Located throughout the 100-wing hallway from the double doors of room 32-135 to the alcove
wall of room 32-105 were over 200 bullet strikes. The bullet strikes consisted of actual impacts
and holes. These strikes were caused by approximately 35 rounds fired down the 100-wing from
inside of room 32-135.
Law Enforcement and the CCOCME took custody of Paddock’s body. The body was
photographed and transported to the CCOCME where an autopsy was conducted.
The room was secured for evidence recovery. The FBI Evidence Recovery Team responded
and took the lead role on documentation and recovery of all evidence inside the hotel rooms and
hallway.
Exhibit A, Pg. 128

Located inside the master bedroom of suite 32-135 were hand drills, drill bits, several
miscellaneous tools, and equipment Paddock used to drill holes, run wires, and set up
surveillance cameras that showed the 100 wing hallway. Inside the bedroom were several empty
ammunition boxes, live rounds, loaded rifle magazines, duffle bags, suitcases, two laptop
computers (one of which was broken and missing the hard drive), snorkeling kit bag, diving
mask, circular glass cutter with suction cup and miscellaneous personal items.
Located throughout the main living area of the suite were 18 rifles, one handgun, rifle casings,
and loaded magazines. A blue plastic tube, was fashioned with a fan on one end and snorkel
mouthpiece on the other end. A spotting scope on a tripod was on the floor near Paddocks body
and a slip of paper was on a small table with hand written distances on it. Several suitcases and
bags were throughout the main room containing personal items and loaded rifle magazines. A
laptop computer was located on the bar and connected to a live feed camera attached to the
peephole of the main door to suite 32-135.
Room 32-134 was an adjoining room to suite 32-135 used by Paddock. Located inside the room
were five rifles, casings, live ammunition and several loaded magazines. A pair of gloves were
located on one of the beds and sandals were located on the floor near the bed. Inside the
bathroom, a snorkel tube was located in the trash. A room service receipt and a cardboard box
with mailing labels was also located in the bathroom. In the walkway leading to the door to the
main hallway was a food service cart. A laptop computer was located on the food service cart.
It was connected to two live feed cameras and a battery pack with wires connecting it to the
cameras on the food service cart in the 100 wing hallway.
All evidence located and recovered inside suite 32-135 and room 32-134 indicated Paddock was
capable of watching people in the hallway. There was no suicide note or manifesto located inside
either room.
Paddock's Vehicle
Paddock’s vehicle was located in Mandalay Bay East Valet, 2nd floor, space 317 by investigators.
The vehicle a 2017 Chrysler Pacific bearing Nevada plate 79D401 had been backed into space
317 and was locked. The key for the vehicle was obtained from valet.
A search warrant was obtained and at 0325 hours, detectives with the LVMPD All-Hazard
Regional Multi agency Operations and Response Section (ARMOR) broke a window to the
vehicle, to allow an explosive detection dog access to the scent from inside the vehicle. A U.S.
Marshall explosive detection K9 moved around the vehicle and gave an alert to the presence of
explosive precursors.
Detectives secured the area on the belief there were explosive precursors within the vehicle.
ARMOR detectives requested LVMPD dispatch notify the Las Vegas Fire and Rescue Chemical,
Biological, Radiological, Nuclear and Explosive Task Force (CBRNE) respond. Las Vegas Fire
Rescue responded with their CBRNE vehicle along with FBI bomb technicians. Located inside
the vehicle were five bags which were x-rayed and removed by the FBI.

Exhibit A, Pg. 129

Upon rendering the vehicle safe, the vehicle and all items located inside were photographed. All
items removed from the vehicle were placed back inside and the vehicle was sealed. The vehicle
was subsequently towed from the Mandalay Bay Hotel to a secure FBI facility for a thorough
search and evidence collection.
Evidence collected from inside Paddock's vehicle included loaded rifle magazines for both AR15 and AR-10 style rifles. Also collected were 20 two pound containers of exploding targets, 10
one pound containers of exploding targets and 2 twenty pound bags of explosive precursors.
Paddock's Mesquite Residence
LVMPD detectives responded to Paddock's residence in Mesquite, Nevada. The residence was
located at 1372 Babbling Brook Court. Detectives obtained and served a search warrant at this
location. Inside the residence, seven shotguns, five handguns, six rifles, exploding targets,
firearm ammunition, rifle magazines and computer related items were recovered. These items
were impounded and turned over to the FBI for processing.
Paddock's Reno Residence
FBI Agents responded to Paddock's residence in Reno, Nevada. The residence was located at
1735 Del Webb Parkway, Reno, Nevada. Agents obtained and served a search warrant at this
location. Inside of the residence were two shotguns, five handguns, firearm ammunition, rifle
magazines and computer related items. The items were recovered by the FBI for processing.
Search Warrants and Legal Notices
The investigative process required information to be obtained from numerous sources and
venues to include but not limited to:









Hotels and Casinos
Firearms related businesses
Residences of Stephen Paddock
Vehicles of Stephen Paddock
Internet providers
Telephone companies
Online retail businesses
Email companies

During the course of the investigation law enforcement authored approximately 1,062 legal
notices. These legal notices were to obtain information or items from venues related to the
investigation. These legal documents included but are not limited to:





Administrative Subpoenas
Court Orders
Search Warrants
Grand Jury Subpoenas
Exhibit A, Pg. 130

Law Enforcement Tips and Leads
All tips or items that needed to be investigated or followed up were coordinated by the FBI and
the LVMPD. These leads were tracked using the Operational Response and Investigative Online
Network or ORION system through the FBI.
Investigators conducted interviews with 43 people directly associated with Paddock. These
included 24 gambling associates, 11 acquaintances and 8 blood relatives.
X.

PRELIMINARY FINDINGS FROM THE 1 OCTOBER INVESTIGATION

Investigators determined key findings as a result of this investigation:




No suicide note or manifesto was found. Of all the evidence collected from rooms 32-135
and 32-134, there was no note or manifesto stating Paddock’s intentions. The only
handwritten documentation found in either room was the small note indicating
measurements and distances related to the use of rifles.



There was no evidence of radicalization or ideology to support any theory that Paddock
supported or followed any hate groups or any domestic or foreign terrorist organizations.
Despite numerous interviews with Paddock’s family, acquaintances and gambling
contacts, investigators could not link Paddock to any specific ideology.



Paddock committed no crimes leading up to the October 1 st mass shooting. All the
weapons he purchased to include all the ammunition, were purchased legally. This
includes all the purchases Paddock made at gun stores as well as online purchases.
Paddock did not commit a crime until he fired the first round into the crowd at the Las
Vegas Village.



Reference the 1,965 investigated leads, 21,560 hours of video, 251,099 images obtained
and 746 legal notices filed or sent, nothing was found to indicate motive on the part of
Paddock or that he acted with anyone else.



19

Paddock acted alone. Thousands of hours of digital media were reviewed and after all
the interviews conducted, no evidence exists to indicate Paddock conspired with or acted
in collusion with anybody else. This includes video surveillance, recovered DNA 19and
analysis of cellular phones and computers belonging to Paddock.

Security Officer Campos was not shot with a BB gun but rather sustained a gunshot
wound from one of the rounds fired by Paddock down the hallway of the 100 wing on the
32nd floor. Security Officer Campos did in fact have a pre-planned vacation to Mexico to
go visit his father and Security Officer Campos asked law enforcement for permission to
make this trip.

Deoxyribonucleic Acid

Exhibit A, Pg. 131



One aspect of the investigation focused on Paddock’s financials. The investigation proved
Paddock was self-funded through his gambling and past real estate transactions. He was
indebted to no one and in fact paid all his gambling debts off prior to the shooting.



The investigation revealed several indicators of intent on the part of Paddock. Those
indicators are as follows:
1. Paddock had a reservation for a hotel during the Lollapalooza music festival held
at Grant Park in Chicago, Illinois during the month of August. Like Route 91, the
Lollapalooza festival was held in an open air venue. Paddock specifically
requested a room overlooking the venue when he made the reservation. The
reservation was cancelled two days prior to the check-in date.
2. Paddock made lodging reservations during the Life is Beautiful music festival held
in Downtown Las Vegas, Nevada. The festival was also an open air music venue
attended by thousands of people. Paddock requested units overlooking the venue.
Paddock reserved three different units during the period and all faced the venue.
Paddock was observed in video surveillance transporting several suitcases from
his vehicle to the units he reserved. Paddock was alone for the trip and was never
accompanied by anyone for more than a casual conversation. Investigators have
been unable to determine if Paddock intended an attack during this festival or if he
used it as a means to plan a future attack.
3. Paddock conducted several internet searches while planning his actions. Search
terms included open air concert venues, Las Vegas SWAT tactics, weapons and
explosives. Paddock also searched for various gun stores.
4. The purchasing of over 55 firearms, which were mostly rifles in various calibers,
from October 2016 – September 2017. He also bought over 100 firearm related
items through various retailers during that period.
5. During a stay in early September 2017, Paddock requested specific rooms that
overlooked the Las Vegas Village. According to Danley, Paddock spent time
looking at the Las Vegas Village venue from different angles and windows while
inside the room.

Exhibit A, Pg. 132

Appendix A
Picture 1

(Door leading to the stairwell secured by “L” bracket)

Exhibit A, Pg. 133

Picture 2

(View from 100 hallway towards room 32-135)

Exhibit A, Pg. 134

Picture 3

(Food Service Cart in hallway with camera)

Exhibit A, Pg. 135

Picture 4

(Food Service Cart in hallway with camera)

Exhibit A, Pg. 136

Picture 5

(View from entry of 32-135 towards the sitting area)

Exhibit A, Pg. 137

Picture 6

(View from foyer of room 32-135 towards the sitting area)

Exhibit A, Pg. 138

Picture 7

(View from sitting area towards the living room)

Exhibit A, Pg. 139

Picture 8

(View from sitting area towards the bar / kitchenette)

Exhibit A, Pg. 140

Picture 9

(View from sitting area towards the bar / kitchenette)

Exhibit A, Pg. 141

Picture 10

(View from sitting area towards master bedroom)

Exhibit A, Pg. 142

Picture 11

(View of connecting doors between room 32-135 and 32-134)

Exhibit A, Pg. 143

Picture 12

(Blue plastic hose with snorkel mouthpiece attached)

Exhibit A, Pg. 144

Picture 13

(Surveillance camera mounted to room door peephole)

Exhibit A, Pg. 145

Picture 14

(Small sledge hammer)

Exhibit A, Pg. 146

Picture 15

(Handwritten note with distance/bullet drop calculations)

Exhibit A, Pg. 147

Picture 16

(Damage to entry door of room 32-135)

Exhibit A, Pg. 148

Picture 17

(Damage to entry door of room 32-135)

Exhibit A, Pg. 149

Picture 18

(Desk in master bedroom of 32-135 with SCUBA mask and power hand drill)

Exhibit A, Pg. 150

Picture 19

(Interior of room 32-134 from connecting doors)

Exhibit A, Pg. 151

Picture 20

(Interior of room 32-134 towards bathroom)

Exhibit A, Pg. 152

Picture 21

(Hallway of room 32-134 with food service cart and laptop connected to cameras in 100
hallway)

Exhibit A, Pg. 153

Picture 22

(Paddock’s vehicle)

Exhibit A, Pg. 154

Picture 23
()

(Explosive precursors found in Paddock’s vehicle)

Exhibit A, Pg. 155

Picture 24

(Exploding targets found in Paddock’s vehicle)

Exhibit A, Pg. 156

Picture 25

(McCarran International Airport fuel tank with bullet strikes)

Exhibit A, Pg. 157

Picture 26

(Upper bullet strike)

Picture 27

Exhibit A, Pg. 158

(Lower bullet strike)

Picture 28
Exhibit A, Pg. 159

(View of the Las Vegas Village from room 32-135)

Exhibit A, Pg. 160

Exhibit 3
(Worlds Fastest Shooter vs Bump Fire! –
Guns Reviews)

Exhibit A, Pg. 161

Exhibit 4
(AR-15 5 shots in 1 second with fastest shooter ever, Jerry
Miculek (Shoot Fast!))

Exhibit A, Pg. 162

Exhibit 5
( [Update] Bumbling Machinations on Bump Stocks? and
[Updated] Bump-fire Rule: “Comments Not Accepted” )

Exhibit A, Pg. 163

[UPDATE] Bumbling Machinations on Bump Stocks? | The Zelma...

http://zelmanpartisans.com/?p=5071

The Zelman Partisans
AUTHORITARIAN SWINE, GUN CONTROL, POLITICS, SO MUCH STUPID!

[UPDATE] BUMBLING MACHINATIONS ON
BUMP STOCKS?
APRIL 2, 2018 | CARL BUSSJAEGER | 1 COMMENT

[See ATF update below]
I’ve been chasing bump-fire stock commenting on regulations.gov this morning, because it matters, trying to sort out the issues with commenting. What I’ve found so far:
My layman’s understanding is that new rules (Notice of Proposed Rulemaking, NPRM) have to
be announced in the Federal Register, giving people a chance to voice their views on them, before the rules can be implemented. Sure, they can ignore us, but they have to let us yammer.
The only Federal Register announcement for “Bump-Stock-Type Devices” is “A Proposed Rule by
the Alcohol, Tobacco, Firearms, and Explosives Bureau on 03/29/2018.” That is Docket No.
2017R-22, which on federalregister.gov shows 35,709 public comments. Clicking the link to
those comments takes you to the comments for December 2017’s proposed rule. (Ditto for the
GPO PDF of the Federal Register.)
Regulations.gov is the web site where we — supposedly — get to voice those views.
Regulations.gov shows two dockets, neither of which is “Docket No. 2017R-22”.
ATF-2018-0001:
“Comments Not Accepted”
The comment I made on that, 1k2-92ad-9enm, 3/29/2018, shows “This comment was received in
Regulations.gov but is not yet posted. Please contact the agency directly for more information.”
A search for comments on ATF-2018-0001 shows “35,709 results”. But the result displayed are
the comments from the December 2017 NPRM, “Comment Period Closed, Jan 25, 2018 11:59 PM

1 of 5

Exhibit A, Pg. 164

6/10/18, 11:11 AM

[UPDATE] Bumbling Machinations on Bump Stocks? | The Zelma...

http://zelmanpartisans.com/?p=5071

ET”.
Docket No. ATF-2018-0002:
This docket shows different comment counts depending on the page you look at.
ATF-2018-0002
Commenting allowed, currently shows “3,673 Comments Received”.
ATF-2018-0002-0001
Commenting allowed, currently shows “1,864 Comments Received”.
But no comments on ATF-2018-002 can be found: “0 results”.
My comment on this docket, 1k2-92b5-589w, 3/30/2018, also shows “This comment was received in Regulations.gov but is not yet posted. Please contact the agency directly for more information.”
Please note: While ATF-2018-0001 was published on 3/29/2018 and could be considered the
NPRM referred to in the Federal Register, ATF-2018-002 was not published until 3/30/2018, after comment were closed on the 3/29 docket.
SUMMARY: The “Bump-Stock-Type Devices” is being “tracked” under three different docket
numbers. The Federal Register — where rules apparently must be legally published — shows only
Docket No. 2017R-22, which you might recall is also the docket number for the December 2017
NPRM.
But regulations.gov shows two dockets, neither published in the Federal Register, with different
comment counts. And neither of my comments will display for any docket number.
It’s hard to tell with the ATF, but this might be bureaucratic incompetence rather than deliberate
malice. Possibly some idiot did a copy/paste from the 2017 NPRM, and got the old docket number. When they tried to enter a new docket number to keep comments separated, they managed
to enter two, screwing up the whole NPRM.
Or it might be deliberate machinations, with bureaucratic bumbling as plausible deniability.
Update, 4/2/2018, 11:55 AM EDT: I have received a response from the ATF. As you can see, it
fails to explain why commenting closed on one docket, or why there are two other separate (and
not listed in the Federal Register) dockets. Comments are still separated across dockets in

2 of 5

Exhibit A, Pg. 165

6/10/18, 11:11 AM

[UPDATE] Bumbling Machinations on Bump Stocks? | The Zelma...

http://zelmanpartisans.com/?p=5071

counts, yet are not visible.

From: [e-mail]
Subject: FW: Comments Closed on Bump-Fire Rule
This is in response to your email to the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF). In your email, which you inquired why the commenting was closed on
the Notice of Proposed Rulemaking in “Bump-Stock-Type Devices” after one day.
As you may know, ATF is responsible for enforcing the Gun Control Act of 1968 (GCA), as
well as other Federal firearms laws. A significant part of the GCA concerns the licensing
and recordkeeping requirements pertaining to the manufacture, importation, distribution
and sale of firearms.
The direct link to comment on the subject notice is https://www.regulations.gov
/document?D=ATF-2018-0002-0001
If you have any further comments or concerns, they may be directed to the Office of
Regulatory Affairs [phone].
In addition, there may be State laws that pertain to this proposed activity. Contact State
Police units or the office of your State Attorney General (www.naag.org) for information
on any such requirements. You may also find information in ATF publication 5300.5:
State Laws and Published Ordinances – Firearms.
We trust the foregoing has been responsive to your inquiry. Should you have additional
questions, please contact your local ATF office. A listing of ATF office phone numbers can
be found here.
Regards,
K Moore | Senior Industry Operations Investigator
U.S. Department of Justice | Bureau of Alcohol, Tobacco, Firearms and Explosives
Firearms Industry Programs Branch
99 New York Avenue NE, Mail Stop 6.N-518
Washington, DC 20226
Update 2, 4/2/2018, 2:55PM EDT:

3 of 5

Exhibit A, Pg. 166

6/10/18, 11:11 AM

[UPDATE] Bumbling Machinations on Bump Stocks? | The Zelma...

http://zelmanpartisans.com/?p=5071

The inconsistent comment counts are the same, but 431 comments can now be seen. Visible
comments include some submitted today. However, neither of my comments submitted last
week can be found anywhere. Since my comments have vanished, I have submitted a third attempt to voice my opinion: 1k2-92d6-aj9o, 4/2/2018:

Comment Tracking Number Match
This comment was received in Regulations.gov but is not yet posted. Please contact the
agency directly for more information.

Carl is an unpaid TZP volunteer. If you found this post useful, please consider dropping something in his
tip jar. He could use the money, what with truck repairs and bills.

ATF

BANS

BUMP STOCK

BUMP-FIRE

BUMP-STOCK-TYPE DEVICES

COMMENTING

RULES

ONE THOUGHT ON “[UPDATE] BUMBLING MACHINATIONS ON BUMP STOCKS?”
Mutti
APRIL 2, 2018 AT 12:30 PM

My personal comment has been unable to be submitted via the online form, therefore I suggest individuals FAX: [phone] ATTN: Vivian Chu
or Mail:
Vivian Chu, Mailstop 6N-518, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington DC 20226. ATTN: 2017R-22
——
Depending on how much effort one wants to put forward a copy of the FAX receipt and
Comment can/should be sent to any of their elected officials who have involvement with the
4 of 5

Exhibit A, Pg. 167

6/10/18, 11:11 AM

[UPDATE] Bumbling Machinations on Bump Stocks? | The Zelma...

http://zelmanpartisans.com/?p=5071

oversight committee (example: House Judiciary Committee: https://judiciary.house.gov
/subcommittee/full-committee/ )

5 of 5

Exhibit A, Pg. 168

6/10/18, 11:11 AM

[Updated] Bump-fire Rule: “Comments Not Accepted” | The Zelm...

http://zelmanpartisans.com/?p=5055

The Zelman Partisans
AUTHORITARIAN SWINE, GUN CONTROL

[UPDATED] BUMP-FIRE RULE: “COMMENTS
NOT ACCEPTED”
MARCH 30, 2018 | CARL BUSSJAEGER | 9 COMMENTS

ADDED 2: jim notes in comments that the proposed rule can now be found HERE.
That’s nice. Except…
Scroll down. New docket number. Comment count is zero.
Related Dockets: None
Related RINs: None
Related Documents: None
That means this is not tied to the previous notice with existing comments, and those hundreds of
comments that were made before are GONE.
Inquiries to the ATF, DOJ, Federal Register, and various congresscritters have gone unanswered.
An automated response from the ATF reads, “It is the goal of FIPB to respond to requests from
firearms industry members and the general public within 120 days of receipt.”
Nice trick. If comments aren’t going your way, kill the proposal, reissue it without telling anyone,
and do over until you get the results you want to justify violating human/civil rights.
I have two comment receipts now, so I can check if the first is permanently evaporated, or if
they’ll… restore it.

Original post (and update) follows:

1 of 5

Exhibit A, Pg. 169

6/10/18, 11:25 AM

[Updated] Bump-fire Rule: “Comments Not Accepted” | The Zelm...

http://zelmanpartisans.com/?p=5055

Something is up with the Notice of Proposed Rulemaking on “Bump-Stock Type Devices.” I was
there earlier this morning checking on comment totals: 941.
I thought of something else I wanted to see again a few minutes ago. I found this.

“Comments Not Accepted”
So I cleared cache/cookies/history/et al and attempted a new comment.

“Document ATF_FRDOC_0001-0036 is no longer open for comment.”
That was supposed to be open for 90 days, until June 29, 2018.
Very odd. Anyone know what’s going on?
Added: I also did a search on the comments submitted before it was closed (remember: there
had been at least 941):

2 of 5

Exhibit A, Pg. 170

6/10/18, 11:25 AM

[Updated] Bump-fire Rule: “Comments Not Accepted” | The Zelm...

http://zelmanpartisans.com/?p=5055

Inquiries have been made to DOJ and the Federal Register. No responses yet.

Carl is an unpaid TZP volunteer. If you found this post useful, please consider dropping something in his
tip jar. He could use the money, what with truck repairs and bills.

ATF

BANS

BUMP STOCK

BUMP-FIRE

BUMP-STOCK-TYPE DEVICES

DOJ

9 THOUGHTS ON “[UPDATED] BUMP-FIRE RULE: “COMMENTS NOT ACCEPTED””
jim
MARCH 30, 2018 AT 12:15 PM

You may submit comments, identified by docket number ATF 2017R-22, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the directions for submitting comments.
Fax: [phone].
Mail: Vivian Chu, Mailstop 6N-518, Office of Regulatory Affairs, Enforcement Programs and
Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington DC 20226. ATTN: 2017R-22.

3 of 5

Exhibit A, Pg. 171

6/10/18, 11:25 AM

[Updated] Bump-fire Rule: “Comments Not Accepted” | The Zelm...

http://zelmanpartisans.com/?p=5055

jim
MARCH 30, 2018 AT 12:22 PM

Try this link:
https://www.regulations.gov/document?D=ATF-2018-0002-0001

 Carl Bussjaeger
MARCH 30, 2018 AT 1:07 PM

That’s nice, but according to that page the hundreds of comments already submitted are
gone.

Mike Murray
APRIL 2, 2018 AT 11:38 AM

Thanks for that, Jim.
The link works, and I shamelessly used part of Carl Bussjaeger’s refutation of mechanical
concept that “it’s a machine gun”.
It’s not, and if this passes it’s one more step toward banning any semi-auto firearm.
Bastards.

 Carl Bussjaeger
APRIL 2, 2018 AT 11:59 AM

“It’s not, and if this passes it’s one more step toward banning any semi-auto firearm.”
Exactly.
“Bastards.”
Yep.

Comrade X
MARCH 30, 2018 AT 4:20 PM

Tyrants don’t need no stinkin comments!

4 of 5

Exhibit A, Pg. 172

6/10/18, 11:25 AM

[Updated] Bump-fire Rule: “Comments Not Accepted” | The Zelm...

http://zelmanpartisans.com/?p=5055

jim
MARCH 30, 2018 AT 4:57 PM

Roger that, too many games or too many secrets (remember that movie?). I hope people are
waking up to the fact dems and repubs are the same animal. Stock up with everything you
can get. Never again….

Comrade X
MARCH 31, 2018 AT 12:12 PM

I hate to be a broken record but ;Yep, a one party system; the big government party with
two branches, a D & a R.

pigpen51
MARCH 30, 2018 AT 9:40 PM

I just had flashbacks of Richard Nixon. Yes, I am old enough to remember him talking on the
television.
What I remember is him saying ” The American people have a right to know if their president
is a crook. Well, I am not a crook.” Shortly, he resigned his office, because he was found to be
a crook. And he knew that if he stayed he would be impeached. Based on his covering up the
burglary into Watergate hotel, not for actually doing the burglary or even ordering it, but
just trying to hide it.
So I think that I can agree with pretty much all that have spoken here that this is a crooked
deal, that once the BATFE’s saw the way that the comments were running, they simply did
away with them and started over. And that it will happen again, until they get the results that
they want. The Dems and the Repubs are one and the same, and that it is prudent to stock
up, no matter what the political climate is.

5 of 5

Exhibit A, Pg. 173

6/10/18, 11:25 AM

Exhibit 6
(Motion in Limine, United States v. Friesen)

Exhibit A, Pg. 174

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 1 of 57

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,

Plaintiff,
vs.

LARRY DOUGLAS FRIESEN,

Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. CR-08-041-L

DEFENDANT'S MOTION IN LIMINE TO PROHIBIT GOVERNMENT' S
INTRODUCTION OR REFERENCE TO RECORDS MAINTAINED IN THE
NATIONAL FIREARMS REGISTRATION AND TRANSFER RECORD

COMES NOW the Defendant, Doug Friesen, and moves this Honorable Court to prohibit
the Government from introducing, mentioning, or otherwise allude or refer to any records from
the National Firearms Registration and Transfer Record (NFRTR). In support of said Motion,
Defendant Friesen submits the following, to-wit:
The NFRTR is a data base administered by the Bureau of Alcohol , Tobacco, Firearms
and Explosives 1 (ATF) to track legally owned machine guns and other "firearms" 2 required to be

1

The Bureau of Alcohol, Tobacco and Firearms was renamed the Bureau of Alcohol, Tobacco, Fireanns and
Explosives under legislation which transferred it from the Department of the Treasury to the Department of Justice,
and its law enforcement and administrative functions from the Secretary of the Treasury to the Attorney General, on
January 24, 2003. 6 U.S.C. § 53 1; 116 Stat. 2135 (2003).
2

Under the NFA a "firearm" is a tenn of art, and means " ( I) a shotgun having a barrel or barrels of less than 18
inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26
inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels ofless than 16
inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length ofless than 26
inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a
machinegun; (7) any silencer ... and (8) a destructive device. The tenn 'firearm' shall not include an antique

Exhibit A, Pg. 175

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 2 of 57

registered under the National Firearms Act of l 9343 (NF A). Said database is inaccurate and
incomplete; its error rate is currently unknown; and that unless it can be independently and
reliably validated, NFRTR data should be excluded as evidence in a criminal trial.
ATF routinely uses NFRTR data to justify seizing and forfeiting firearms it deems to be
unregistered or illegally possessed, issuing search and/or arrest warrants, producing Certificates
of Nonexistence of a Record (CNR) for NF A firearms at criminal trials which attest that no
record of registration for particular firearms can be located in the NFRTR; determining that a
specific firearm is not registered to a specific person; and for other law enforcement activities
such as approving or disapproving applications to transfer ownership of NF A firearms.
There are no known data that reliably establish the current accuracy and completeness of
the NFRTR. The last audit of the NFRTR according to Generally Accepted Government
Auditing Standards (GAGAS), by the Treasury Department Inspector General (Treasury IG) in
1998, raises more questions than it answers. The reasons are that the audit ( 1) di sclosed "critical
error" rates of 4.3 percent and 18.4 percent for one category ofNFRTR transactions, and (2) was
4

limited in scope. The bad news was reliably documented April 23, 1998, when Treasury IG
auditor Gary Wilk reported in a Work Paper:

firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the
Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a
collector's item and is not likely to be used as a weapon.'' 26 U.S.C. § 5845(a).
3

26 U.S.C. § 5801 et seq.

4

These errors apply to Form 4467 data, which may be more inaccurate than the 4.3% critical error rate which can be
calculated from data the Treasury JG disclosed in its December 1998 audit report. Office of Inspector General, U.S.
Department of Treasury, Audit Report on Allegations Concerning the Bureau ofAlcohol, Tobacco, and Firearms '
Administration ofthe National Firearms Registration and Transfer Record, OIG-99-018, Dec. 18, 1998 at 12,
available at http://www.nfaoa.org/documents/TreasurvOIG-99-018- 1998.pdf. (Hereafter December 1998 Treasury
IG Report.) Treasury IG auditor Carol Burgan stated that "error definitions for critical data fields during sampling,.
include weapon serial number and registrant's last name (each must " be 100% correct"), and " weapon description").
Work Paper F-25, Feb. 29, 1998, available at http://www.nfaoa.org/documents/Work Papers F.pdf. Treasury lG
auditor Gary Wilk detennined "our Discovery sample indicated a 18.4 percent error rate, one error per error Fonn

2

Exhibit A, Pg. 176

Case 5:08-cr-00041 -L

•

Document 123

Filed 03/19/2009

Page 3 of 57

Form 4467 was a critical indicator for~ audit. We determined. based on our discovery
ample, that the combined error rate for original documentation and the computer database
18... pett.enl

=

WU

• w
7

able to determine that the error rate wu in excess, with 9S percent confidence, +/ ofthe NFABrancb specified error rate limit of~+~-) S ~· Based on our
Dilcovery error estimate we did not implement the ~ st•tiatical sampling plan.

Coaduaioa:

The NFA database - National firearms Registration and Firearms~ (NFRTR) ~oes not
contain less than the s percent error rate limit for Critical data established by the Chic( rareamn
and Explosives Division, ATF.
5

During a June 17, 1998, meeting at Treasury Department Office oflnspector General
Headquarters to discuss the foregoing audit findings , an NF A Branch representative

4467 in a 'Critical' field ." Work Paper H-1 + Attachments H 1-H 143, April 6, 1998, available at
http://www.nfaoa.org/documents/Work Papers H.pdf.
Form 4467 (" Registration of Certain Firearms During November 1968") was used to register unregistered NF A
firearms during an amnesty period from November 2, 1968, to December 1, 1968, established by the Gun Control
Act of 1968 (P.L. 90-618; Stat. 1235, § 207(b)). The 1998 Treasury lG audit was limited to three categories of NF A
transactions (approximately 3 .3 percent of the total 2,571 ,766 transactions "for the years 1934 through July 31,
1998" (December 1998 report, id. at 2); none included Form I , Form 2, Form 3, Form 4 and Form 5 categories,
which account for 2,184,454 transactions (85 percent of total transactions). These forms differ according to whether
the applicant is a private citizen, government agency, or Special Occupational Taxpayer (SOT) licensed to
manufacture and/or deal in or import NF A firearms.
s Work Paper H-0, April 23, 1998 at 2, reviewed May 7, 1998, by Audit Manager Robert K. Bronstrup. In
"Discovery" sampling, the auditor draws a random sample, typically 60 to 70 records or more, to determine the
presence or absence of irregularities and the need for a full audit. lf no irregularities are found , the data base is
presumed to be error-free and a full audit is not conducted. 1f even 1 irregularity is found, the data base cannot be
assumed to be error-free; the audit must be extended; and a larger sample drawn to reliably estimate the error rate
for the data base. Herbert Ar¥Jn, Handbook ofSampling for Auditing and Accounting. New York: McGraw-Hill
Book Company, 1984 at 132-140.
Treasury lG auditor Gary Wilk reported that after reviewing "528 records and documents" in Discovery sampling:

• 'W_e ~scovered a to~ ~f39S errors or omissions·ofwruch 176 were Critical to the NFA
nuSSJon and the renwrung 219 were Administrative. .
Work Paper H-0, April 23, 1998 at I.

3

Exhibit A, Pg. 177

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 4 of 57

~ked for an eq>lanation of the analysis results obtained by the OIG audit of the

physical and electronic records maintained by ATF and known as the NFRTR lit£urther, added
that
for asking was that the res1:1lts obtained by the OIG ~udit w.er~ disappointing at
best and could have serious consequences for the ATF firearms registry nuss1on.

lteason

6

After Treasury IG auditor Gary Wilk "offered that perhaps ATF would prefer to identify
a term other than ' critical ' as the identifier for the errors identified by this audit report," 7 one or
more NF A Branch representatives asked the Treasury IG auditors to change the definition of
"critical error" to obtain a lower rate, and the auditors did so. The Treasury IG did not mention
or publish the 18.4 percent rate (or any other error rate) in its December 1998 report or its
October 1998 report; whether "critical errors" were present in other major NFRTR categories
was not addressed.
The Limited audit findings the Treasury IG published regarding errors in the NFRTR as
shown in the table below, copied from the December 1998 Treasury IG report, are misleading.
In part the reasons are that, as will be documented in thi s motion, the Treasury IG auditors did
violated GAGAS under at least two major standards: (1) failing to extend the audit to detennine
the impact of the large number of "critical errors" disclosed as the result of Discovery sampling
analysis, which required them to report their effects upon the audit results, in view of the
auditors' fai lure to fully disclose the results of their Discovery sampling analyses , and (2) failing
to be organizationally independent. This motion will later discuss the implications of violating
GA GAS .

6

Work Paper F-37, June 30, 1998 at I , available at http://www.nfaoa.org/documents/Work Papers F.pdf. In this
Work Paper, Treasury IG auditor Gary Wilk "explained that our definition [of "critical error"] had come from our
understanding" of definitions provided earlier by NFA Branch representatives, who now " appeared to obtain an
improved appreciation of the specific requirements that determined the outcome of the audit."
7

Id. at I.

4

Exhibit A, Pg. 178

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 5 of 57

SUMMARY OF SAMPLE DISCREPANCIES
LE1TER

FORM4467

OTHER
~

..

TOTAL
~-

,.

Database Re rts
Name:
Miss
Incorrect

Serial Number:
Miss
Incorrect

Com

r Records Not Found

Records Not Found
MnceDaneour

2
0

1
0

0
0

0
1
0

0
0
10

0
0
0

0

4

16

3

0

0

3
0

0
1
10

20
3
6
15
16
37
TOTALS
Somce: Database analysis results are depend.em on the retrieval medlods used. Tbe results
shown above are based on a combination of dala retrieval methods.
8

Sworn testimony in Freisen by NFRTR custodian Denise Brown in this Court on
September 17, 2008, about the current accuracy of the NFRTR was not informative or
encouraging. When asked by defense counse l "how accurate are the NFRTR records?"
Custodian Brown replied: " I don 't have a number." When asked to confim1 whether " there are
inaccuracies in them [NFRTR data], are there not, ma'am?," she answered " Yes, there are." 9
A TF officials have willfully failed to disclose that A TF has (l) lost or destroyed firearm
registration documents, (2) added registration documents provided by firearms owners to replace
those which ATF lost, destroyed, or could not locate, (3) knowledge that the NFRTR contains

8

December 1998 Treasury TG Report at 12, available at http://www.nfaoa.org/documentsffreasurvOIG-99-0181998.pdf.
9

United States ofAmerica vs. Larry Douglas Friesen, Case No. CR-08-41 L, United States District Court for the
Western District of Oklahoma, Transcript of Jury Trial, Vols. f-Vill , Sept. I 7-0ct. I, 2008, before the Honorable
Tim Leonard, U.S. District Judge at 75-76. (Hereafter United States ofAmerica vs. I.Any Douglas Friesen (2008).)

5

Exhibit A, Pg. 179

Case 5 :08-cr-00041-L

Document 123

Filed 03/19/2009

Page 6 of 57

serious material errors that affect the reliability of its certifications in federal court that a
particular firearm is not registered to a defendant, and (4) from time to time, depending on the
circumstances, inconsistently applied various definitions of "critical error" in characterizing
errors in the NFRTR, as this motion will document. Their actions, reported in documents created
and published by the Government since 1979, particularly during the 1990s and continuing to
present, violate due process, and obstructjustice. 10 There is evidence, discussed throughout this
motion, that A TF has been withholding Brady material 11 by failing to disclose potentially
exculpatory evidence at criminal trials. Both the Attorney General and his predecessor
(Secretary of the Treasury) have failed to establish a new amnesty period to correct errors in the
NFRTR because firearm registration documents are missing, as will be shown is required by the
Criminal Division of the Department of Justice. Consequently, ATF 's use ofNFRTR data
whose validity and reliability has not been independently established does not represent an
acceptable standard for federal law enforcement in criminal prosecutions.
The Congress heard testimony in 1979 that ATF alleged J. Curtis Earl, a federally
licensed NFA dealer, illegally possessed 4 75 unregistered firearms. 12 More than two decades
later, the attorney who represented Mr. Earl informed a Subcommittee Chairman during a 2001
Congressional bearing about continuing inaccuracies in NFRTR records, that Mr. Earl
(T]urned to his file cabinet and began to produce the original records of their
registration, and one by one the fireanns came off the floor and back onto his
10

There are no published law review articles on the NFR1R, and little pertinent case law. The most comprehensive
legal review ofNFRTR issues to date is in an unpublished article. Joshua Prince, "Violating Due Process:
Convictions Based on the National Firearms Registration and Transfer Record when its 'Files are Missing"' (2008),
available at http://www.nfaoa.org/documents/Violating Due Process20Aug2008.pdf
11

Brady vs. Maryland, 373 U.S. 83 (1963).

12

Congressional Hearing, Committee on Appropriations, United States Senate, Oversight Hearings on Bureau of
Alcohol, Tobacco and Firearms, 96th Cong., 1st Sess. at 39 (1979), available at
http://www.nfaoa.org/documents/ 1979 Hearing Excerpts.pdf.

6

Exhibit A, Pg. 180

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 7 of 57

racks. At the end, he could show that he had registered every single one of these
475 fireanns. ATF's records were grossly incorrect. 13
Jn November 1979, in response to a request by then-Senator James A. McClure, the Criminal
Division of the Department of Justice stated if ATF determines that "a particular individual or
weapon is registered" and ATF finds that its " files are missing," then ·'the only solution would be
to declare another amnesty period." 14

•

Sections of this Memorandum that include the preceding

quoted phrases are reproduced be low.
No amnesty period was established as the result of Mr. Earl's case.
~ov;?ntccn

problcn .?.:.::~::s i!'\ !:~!c rcco!:"c1 ~y:?te!:l { . lee Pi? . 3-t,) •
"

The

!Jic;nific=ir.t of th~sc in tcrr.J!J .of its effect on ~'le validit·.r
of a certification i:; ..:h.;rt) bot.lt the inc!<::.7- card a nd t.'le re< is-

ru>::>t

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th\l onl
f
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5

If this nroblnn actual!

to dc,;clarc \\nothgr

to <lo this untlcr

or.t.~2sty

c~:i~tiuq

cxist~d

c.criod.

the

o~l·

s olution would be

Ti1c fJc crotary

s

C!;loow~rod

lcqigletion.

15

13

Letter to Ernest S. lstook, Jr., Chairman, Subcommittee on Treasury, Postal Service and General Government
dated April 10, 200 I , from David T. Hardy, Esq., available at http://www.nfaoa.org/documents/BardHard.pdf.
14

U.S. Department of Justice, Criminal D ivision, Memorandum: Response to letter from Senator McClure, by Philip

B. Heymann and Lawrence Lippe, Nov. 29, 1979 at 4, available at
http://www.nfaoa.org/documents/DOJamnestvMemo 1979.pdf.
Under§ 207(d) of the Gun Control Act of 1968, the Secretary of the Treasury (now the Anomey General) is
empowered to administratively establish unlimited numbers of amnesty periods lasting up 90 days per amnesty
period, with immunity from prosecution, "as the Secretary determines will contribute" to purposes of the l\TfA, upon
publication in the Federal Register of his intention to do.
IS

[d. at 4.

7

Exhibit A, Pg. 181

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 8 of 57

In 1997, as the result of allegations by Eric M. Larson, a private citizen, 16 the Chairman,
House Committee on Government Reform and Oversight, directed the Treasury IG to audit the
NFRTR. 17 One of the audit reports, published in 1998, describes the use and results of
Discovery sampling to establish there were "discrepancies" in three categories ofNFRTR data,
including missing or incorrect name; missing or incorrect serial number; computer records not
found; and original records not found.18 The Treasury JG failed to investigate a credible
allegation that "ATF had registered firearms for which the agency had no documentation, but
their owners did," 19 and "did not include a review of the accuracy of ATF' s certifications in
criminal prosecutions that no record of registration of a particular weapon could be found" in the
NFRTR. 20
Continuing efforts by citizens, federally licensed firearms dealers and gun collectors, and
testimon ies and statements from 1996 to 200 1 at Congressional hearings involving the accuracy

16

Eric M. Larson has been a Senior Analyst, U.S. Government Accountability Office (GAO), since 1987. Mr.
Larson' s research, Congressional testimonies from 1996 to 2001 , and continuing work involving the 1\1FRTR has
been and continues to be done in his personal capacity as a private citizen, and does not represent the policy or
position of GAO.
17

Letter from Dan Burton, Chairman, Committee on Government Reform and Oversight, House of Representatives
dated June 25, 1997, to the Honorable Valerie Lau, Inspector General, Department of the Treasury. Work Paper D4, October 14, 1997, by Diane Kentner at 5, available at http://www.nfaoa.org/documents/Work Papers D.pdf.
Chairman Burton' s letter states: "From the correspondence and testimony I received . .. it appears that the concerns
raised by Mr. Larson may be valid and legitimate. Consequently, I believe an investigation by the OIG into [his)
allegations would be appropriate to reveal any possible improprieties or mismanagement at the ATF, and to
recommend solutions that would improve and strengthen ATF's registration and record-keeping of fireanns ."
18

December 1998 Treasury IG Report at 12, available at htto://www.nfaoa.org/documentsfrreasuryOIG-99-0 I 81998.pdf. The 1998 Treasury IG reports do not use the term " critical error," and instead refer to them as
"discrepancies."
1
9

Congressional Research Service, Memorandum: ATF's National Firearms Registration and Trasfer Record:
Issues Regarding Data Accuracy, Completeness. and Reliability, by William J. Krouse, Nov. 28, 2005 at 12,
available at http://www.nfaoa.org/documents/CRSmemoNFRTROOO I .pdf. The memorandum also states: "While
the OlG found discrepancies in the sampled records ... the critical error rates were not given in the text of the audit
report. Nevertheless, based on its own finctings and ATF efforts to improve the 1\lfRTR, the Treasury OJG chose
not to perform a full sampling and audit of the NFRTR." Id. at 14.
20

Id. at 12.

8

Exhibit A, Pg. 182

Case 5:08-cr-00041-L

Document 123

Filed 03119/2009

Page 9 of 57

and completeness of the NFRTR resulted in another Government examination of the NFRTR. In
the June 2007 report of its "review" of the NFRTR, the Department of Justice Inspector General
(Justice IG) stated:
We reviewed ATF processes related to requesting records checks from the NFRTR and
determined that when an error is detected, the NF A Branch staff thoroughly research the
NFRTR and the imaging database to find out if a weapon is actually registered.
Additionally, the NF A requires owners to retain the approved NFA weapons application
as proof of a weapon 's registration and make it available to ATF upon request. If the
NFA weapons owner can produce the registration fiaperwork, ATF assumes the
error is in the NFRTR a nd fixes it in the database. 1 (emphasis added]
The Justice IG's finding that "ATF assumes the error is in the NFRTR and fixes it in the
database" when fireanns owners produce copies of their registration documents leaves
unanswered questions. Commenting on the foregoing determination, Stephen P. Halbrook, a
nationally and internationally recognized authority on U.S . firearms law, observed:
. .. if the owner or the executor of a deceased owner cannot find the registration
paperwork, which may be lost or destroyed, and if the record cannot be found in the
NFRTR, then a voluntary abandonment of the firearm may be induced or even a criminal
prosecution initiated. On such issues the report is not sufficiently informative.22
The loss or destruction of an NF A firearm registration document by anyone is not a
trivial matter because all violations of the NFA are serious felony offenses, and the penalties are
substantial.23 Persons who are convicted of illegal possession of a machine gun are singled out
for particularly harsh treatment. The reason is that under Title 18 § 922(0), the Government is

11

U.S. Department of the Justice, Office oflnspector General, The Bureau ofAlcohol, Tobacco, Firearms and
frplosives' National Firearms Registration and Transfer Record, 1-2007-006, June 2007 at 31 , available at
http://www.nfaoa.org/documents/DOJ-OlG2007NFRTRreport.pdf. Hereafter June 2007 Justice IG Report.

22
Stephen P. Halbrook. Firearms Law Deskhook: Federal and State Criminal Practice. 2008-2009 Edition.
Thomson West Publishing, 2008 at 575.
23

Violators may be fined not more than $250,000, and imprisoned not more than 10 years, or both. In addition, any
vessel, vehicle or aircraft used to transport, conceal or possess an unregistered NFA firearm is subject to seizure and
forfeiture, as is the weapon itself. 49 U.S.C § 781-788, 26 U.S.C. § 5861and § 5872.

9

Exhibit A, Pg. 183

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 1O of 57

not required to prove that a machine gun is not registered to convict a defendant of Possession of
Unregistered Firearm.
The 2007 determination appears to meet the standard the Crim inal Division of the
Department of Justice established in J 979 for a new amnesty period as "the only solution" when
ATF·s "files are missing."
When Eric M. Larson filed a FOIA request to the Justice IO to obtain copies of the Work
Papers created during its review of the NFRTR, to further clarify its determination, the Justice IO
responded by sending them to A TF ' s Disclosure Division fo r processing.24
It is unusual for an Inspector General to send Work Papers to an agency over which it has
oversight responsibi lity for FOIA processing, because of the potential for conflict of interest it
represents fo r both the agency and the Inspector General. Despite Mr. Larson' s repeated efforts
to obtain them, A TF has thus far not provided copies of the requested Work Papers. A copy of
the July 25, 2008, letter ATF sent to Mr. Larson after receiving the Work Papers from the Justice
Department IO, appears on the next page.

~ Letter from Marilyn R. LaBrie, Disclosure Specialist, ATF dated July 25, 2008, to Eric M. Larson, bearing
identifier REFER TO: 08-726.

2

10

Exhibit A, Pg. 184

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 11 of 57

U.S. Department of Justice

•

Bureau of Alcohol, Tobacco,
Firearms and Explosives

JUL 2 5 2~J£

Washington. DC 20226
www..atf.gov

REFER TO: 08-726

Mr. Eric Larson
P.O. Box 5497
Takoma Park, MD 20913
Re: Work Papers - Report Number 1-2007-006
Dear Mr. Larson:

This is in reference to your Freedom of Information Act request, that you submitted to the
Department of Justice. Your request was forwarded to this Agency together with a large volume
of records.
It is our intent to grant your request in part. We are sorry that our processing bas been delayed
but we will endeavor to provide a response as soon as possible.
We are processing your request as an "all others requestor" therefore you are entitled to 100 free
copies and 2 free hours of search. We will inform you if we anticipate any costs for copies that
are not covered by the foregoing.
We regret the delay and wiU do all we can to provide a response.
Sincerely,

·-~

i"- L~-_ l ._~ Lc.'St_-:. ~
Wtaril~

~

LaBrie
Team Leader, Disclosure Division

The Government still declines to establish an amnesty period to correct errors in the
NFRTR. For example, in a January 14, 2009, letter, the Department of Justice Deputy Inspector
General Paul K. Martin told Senator Barbara Mikulski, Chairman, Subcommittee on Commerce,
Justice, Science and Related Agencies, Committee on Appropriations, the following:

11

Exhibit A, Pg. 185

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 12 of 57

U.S. Department of Justice
Office of the Inspector General

Januacy 14, 2009
The Honorable Barbara A Mikulski
United States Senate
Hart Senate Office Building
Suite 503
Washington, D.C. 20510-2003
Attention: Benson Erwin
Dear Senator M.tkulski:
We received your correspondence of October 28, 2008, fmwarding a letter
from Mr. Eric Larson regarding the Office of the Inspector General's (OIG)
review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF)
management of the National Firearms Registration and Transfer Record
(NFRTR) database and Mr. Larson's Freedom of Information Act (FOIA) request
to the OIG. We will first address the concern with the OIG's review of the
NFRIR and, second, with Mr. Larson's FOIA request.
Mr. Larson stated in his letter that he was concerned that the OIG did
not review the "material inaccuracies" in the NFRIR and these errors "expose
Innocent firearms owners to legal jeopardy." Mr. Larson also asks the OIG to
issue an opinion on the need for an amnesty period to register National
Firearms Act (NFA) weapons. We are aware of Mr. Larson's concern about
errors in the NFRIR and his desire for a new amnesty period for the
registration of additional NFA weapons. However, our review focused on ATF's
management of the NFRI"R and the processing of NFA weapons' forms and did
not address the issue of an amnesty pertod. The OIG has no opinion on the
establishment of a new amnesty pertod in which to register NFA weapons.
WhJle our review found that there are some technical and programming issues
that could cause administrative errors in records, we also found that ATF is
taking the approprtate actions to correct these issues and ls proactlvely
correcting any errors found in individual records. Moreover, we found no
instance in which errors in the NFRI"R resulted in inapproprtate crtmina1
charges against individuals or federal firearms licensees.

Regarding Mr. Larson's FOIA request, the OIG received a FOIA request
from Mr. Larson on July 26, 2007, seeking information pertaining to our
review, including the work papers associated with the review. We have fully
processed this request.
12

Exhibit A, Pg. 186

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 13 of 57

On August 16, 2007, we provided Mr. Larson with a copy of the report
relating to our review. By letter dated September 18, 2007, we informed Mr.
Larson that the work papers contained three categortes of material: (1)
documents that ortginated with other offices/agencies; (2) public source
documents; and (3) documents generated by the OIG that contain information
ortginating from other offices/ agencies. We asked Mr. Larson whether he
wanted copies of the public source material and whether he wished us to refer
the material originating with the other offices/agencies to those entitles. We
also informed him that we would process the documents generated by the OIG
after consultation with the other offices/agencies.
By letter dated September 27, 2007, Mr. Larson responded that he
wanted copies of the public source documents and that we should make the
referrals to the other entitles. We thereafter referred to the Department of the
Treasury and the ATF documents that originated with their offices. We
informed Mr. Larson of these referrals, telling him that the Department of the
Treasury and ATF would respond directly to him regarding the referred
documents. We also sent Mr. Larson copies of the public source matertal.
After consulting with ATF regarding the OIG-generated matertal, we
informed Mr. Larson on December 5. 2008, that these documents were exempt
from disclosure pursuant to 5 U.S.C. §552(b)(5). We also informed Mr. Larson
regarding his light to appeal our determination.
We are forwarding a copy of this letter to Mr. ·L arson.
Please feel free to contact us 1f you have additional questions about the
work of the OIG.
Sincerely,

r~IVl=A--

Paul K. Martin
Deputy Inspector General
cc: Mr. Ertc Larson

While Deputy Inspector General Martin correctly states " [w]e have fully processed" Mr.
Larson' s FOIA request, his statement is misleading because the Justice IG transferred the
documents Mr. Larson requested to ATF for FOIA processing. The Justice I G's action is
reminiscent of how the Government long avoided disclosing documents pertinent to Waco in

13

Exhibit A, Pg. 187

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 14 of 57

response to a FOIA request by shifting the paperwork and related responsibilities between the
Department of Justice, ATF, and the Texas Rangers, before a Federal District Judge ordered a
halt to such evasions and ordered that the documents be produced for his Court, and they were. 25

" Institutional Perjury": The Busey Videotape and Leasure
The most recent efforts to persuade ATF to render the NFRTR accurate and complete
originated from statements about its inaccuracy during an October 1995 "ROLL CALL
TRAINING" session at A TF headquarters that was also videotaped. 26 During the session, which
was broadcast throughout ATF, then-NF A Branch Chief Thomas Busey stated " ... when we

testify in court, we testify that the database [NFRTRJ is 100 percent accurate. That's what
we testify to, and we will always testify to that. As you probably well know, that mav not be
100 percent true." 27 (Emphasis added). Asserting the error rate in the NFRTR was recently
reduced as the result of activities of a "quality review team," Mr. Busey stated:
.. . when I first came in a year ago, our error rate was between 49 and 50 percent, so you
can imagine what the accuracy of the NFRTR could be, if your error rate' s 49 to 50
percent. The error rate now is down to below 8 percent, and that' s total. That's common
errors and critical errors.28

25
David T. Hardy, This Is Not An Assault: Penetrating the We ofOfficial Lies Regarding the Waco Incident. Xlibris
Corporation, 200 I at 91-108.
26

A certified copy of the session is transcribed under the title "ROLL CALL TRAINING, 10-95, TOM BUSEY."
Treaswy, Postal Service. and General Government Appropriations for Fiscal Year 1997. Hearings Before a
Subcommittee of the Committee on Appropriations, House of Representatives. 104th Cong., 2d Sess., Part 5 at 182205, available at http://www.nfaoa.org/documents/ J996testimonv.pdf. (Hereafter Congressional Hearing, House of
Representatives, Treaswy, Postal Service, and General Government Appropriations for Fiscal Year 1997.)
27

Id. at 192.

28

ld. at 202. Mr. Busey was apparently referring to an internal ATF "Quality Review" initiative that "commenced
operations on July 25, 1994," according to a "productivity report" prepared February 9, 1996. Treaswy, Postal
Service, and General Government Appropriations for Fiscal Year 1998. Hearings Before a Subcommittee of the
Committee on Appropriations, House of Representatives. I 05th Cong., 1st Sess., Part 5 at I02, available at
http://www.nfaoa.org/documents/ 1997testimony.pdf. (Hereafter Congressional Hearing, House of Representatives,
Treaswy, Postal Service, and General Government Appropriations for Fiscal Year 1998.)
In response to Mr. Larson's FOlA request for information about the quality review initiative Mr. Busey described,
A TF sent approximately 100 loose pages consisting of weekly reports and other documents. The result of the

14

Exhibit A, Pg. 188

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 15 of 57

Mr. Busey ' s statements that ATF personnel "always testify" in court that the NFRTR " is
100 percent accurate," and "[a]s you probably well know, that may not be I 00 percent true,"
were termed "institutional perjury" by an attorney who learned of the videotape, obtained a
transcript of Mr. Busey 's statements by filing a FOIA request, and published an article about the
incident.

29

During the session Mr. Busey also said the error rate in the NFRTR was between 49

percent and 50 percent in the year before he arrived, and "we know you 're basing your warrants
on it, you' re basing your entries on it, and you certainly don 't want a Form 430 waved in your
face when you go in there to show that the guy does have a legally-registered [NFA firearm].
I've heard that's happened. I'm not sure." 31
The videotape of Mr. Busey ' s remarks, now available on the Internet, has more impact
than his published words. The reasons are that Mr. Busey's statements were not spontaneous
remarks; Mr. Busey prepared his statements in advance, can be seen reading them, and smirks
while saying: "I' ve heard that's happened. I' m not sure." In response to Mr. Larson ' s FOIA
request for a copy of the Busey videotape, ATF responded:

initiative is unclear because it is not apparent whether there was a final report, and there are no separate explanations
or summaries of the weekly reports.
29

"Institutional Perjury," by James H. Jeffries III. Voice for the Defense, Vol. 25, No. 8, October 1996 at 28-30;
available at http://www.nfaoa.org/documents/Jeffriesarticle.pdf, reprinted in the Congressional Record (Extensions
of Remarks), Vol. 142, August 2, 1996 atE1461-E1462, available at
http://'www.nfaoa.org/documents/JeffriesCongRec.pdf
30

A TF Form 4, currently titled " Application for Tax Paid Transfer and Registration of Firearm," is prepared in
duplicate original and used to transfer the ownership of registered NF A firearms . After ATF approves the Form 4
application, ATF (1) keeps one approved copy for entry into the NFRTR, and (2) sends the other approved copy to
the firearm owner (transferor), who must subsequently transfer the firearm (and the other approved copy) to the new
owner (transferee) within a reasonable time or cancel the transfer. The NF A prohibits the physical transfer of the
firearm by the transferor to the transferee before ATF approves the transfer.
31
Congressional Hearing, House of Representatives, Treaswy, Postal Service, and General Government
Appropriations for Fiscal Year 1997, available at http://www.nfaoa.org/documents/ l 996testimony.pdf.

15

Exhibit A, Pg. 189

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 16 of 57

You ha~ ftlqUeSled "a c:omplc9c md ~ copy of die videoclpe aaled by the 84ftai of

Alcobol. Tobecco md F"uecms wtiidl piaures Mr. lbomu Buley,Cbief, Nacional Fiftamu A.J:;t
8nnch, darinl 1 "'Roll c.ll TC'lliainl Sasicle. or ...,._ Oc:lobcr 11, I 99S". Yow requ$ is

dmied ~to rsc1e 5, u.s.c. 552<bX6>11 rew- oftllis video uipr WIXdd mrnr;r.... an
inwsioa of Mr. 8-y's priwcy.

32

The Busey videotape was used, in part, to overturn five convictions of John 0. LeaSure
for possession of unregistered fireanns in a May 1996 bench trial , during which ATF Specialist
Gary Schaible testified he was aware of "occasions ... in the NF A Branch of clerks throwing
away transmissions because they don't want to fool with them" rather than process them (Mr.
LeaSure testified he FAXed registration documents to ATF in 1994, and ATF claimed it was
unable to find a record ofthem). 33 Under cross-examination, when asked "that's one of the
things [NFA Branch clerks throwing away documents] that could happen to you?," Mr. Schaible
replied "Certainly .''34
Citing Mr. Schaible' s testimony (in which he also confirmed the Busey video had been
broadcast throughout and was common knowledge within ATF Headquarters), the presiding
Judge ruled " ... it throws a disagreeable proposition on my finding somebody guilty on records
when their chief man (Mr. Busey] says they were 49 percent wrong," and dismissed five

32

Letter from Marilyn R. LaBrie, Disclosure Specialist, AlF, to Eric M. Larson dated March 18, 1998, bearing
symbols L:D:MRL 98-514. Treaswy, Postal Service, and General Government Appropriations for Fiscal Year
1999. Hearings Before a Subcommittee of the Committee on Appropriations, House of Representatives. 105th
Cong., 2d Sess., Part 5 at 170, available at http://www.nfaoa.org/documents/ l 998testimonv.pd( Hereafter
Congressional Hearing, House of Representatives, Treasury, Postal Service, and General Government
Appropriations for Fiscal Year 1999.
A videotape of the training session was obtained by an attorney who subpoenaed it for trial and made a copy when
the U.S. Attorney that prosecuted the case failed to submit a timely order to the court to prohibit its public
disclosure, available at http://wwv;.nfaoa.org/documents/rollcall highlights.mp4 .
33
United States ofAmerica vs. John Daniel LeaSure, Crim. No. 4:95cr54, E.D. Va.- Ne\.\rport ews Div.,
Transcript of Proceedings before the Honorable John A. MacKenzie (May 21 , 1996) at 42-43, available at
http://www.nfaoa.org/documents/LeaSureTrial.pd( (Hereafter United States ofAmerica vs. John Daniel LeaSure
( 1996).)
34

Id. at 42-43.

16

Exhibit A, Pg. 190

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 17 of 57

convictions under the NFA for possession of unregistered fi rearms.35 The LeaSure transcript
states that Mr. Sch iable was a witness "called on behalf of the Government, having been first
duly sworn, was exami ned and testified" to the above facts. 36 ATF did not appeal the verdict.
ATF acted to contain the damage resulting from Mr. Busey ' s statements by (I) adding
"corrections" by Mr. Schaible to transcribed copies of the videotape of Mr. Busey ' s remarks
disclosed by ATF in response to FOIA requests, and (2) requesting the Audit Services Division
of the Department of the Treasury to audit the NFRTR. On February 13, 1996, Mr. Schaible
stated under penalty of perjury that, to the best of his knowledge, no NF A Branch personne l have
ever testified that the NFRTR is 100 percent accurate, and "the reference to an error rate of 49-50
percent is based on an informal, undocumented estimate by personnel from the Firearms and
Explosives Regulatory D ivision." 37
In Rith, a 1999 court case that included a challenge to the accuracy and completeness of
the NFRTR arising from the Busey videotape, after hearing opposing evidence the Court ruled
"[t]he record establishes that the NFRTR database has sufficient guarantees of trustworthiness to
satisfy the Sixth Amendment." 38 The Court based its opinion on (1) statements by Mr. Busey
that "a quality review team ... instituted in 1994" had reduced "the critical-error rate to below
three percent," and (2) "a copy of an audit performed February 7, 1996, by the Audit Services
Division of the Department of the Treasury" showing a 1.5 percent "critical-error" rate.39 The

35

Id. at 45.

36

Id. at 23.

37

Congressional Hearing, House of Representatives, Treaswy, Postal Service, and General Government
Appropriationsfor Fiscal Year 1997, available at http://www.nfaoa.org/documents/ l 996testimony.pdf
38

United States ofAmerica vs. Rith, 164 F.3d 1323 at 1336, 51 Fed. R. Evid. Serv. 197 (I 0th Cir. 1999). Hereafter
United States of America vs. Rith (1999).

39

Id. at 1336.

17

Exhibit A, Pg. 191

Case 5 :08-cr-00041-L

Document 123

Filed 03/19/2009

Page 18 of 57

Court added: "the accuracy of the registration check is buttressed by a second level review by a
branch chief."40 It is unclear whether the Audit Services Division of the Department of the
Treasury published a formal report of its 1996 audit of the NFRTR; the audit processes it
followed are unknown and may not have been fully disclosed to the Court.
A TF and the Audit Services Division may have perpetrated a fraud upon the Court in
Rith. The reasons are that (1) Mr. Busey's statements about improvements in the "critical-error"

may have been self-serving, (2) there is no evidence that a final report on the "quality review
team" accomplishments was rendered, or that the results of the "accomplishments" and reduction
of the "critical-error" rate were independently validated, (3) it is unclear whether the 1996 audit
was conducted according to GAGAS, and (4) the Audit Services Division auditors may have
been improperly influenced by NFA Branch representatives to manipulate the outcome of the
audit.
The Audit Services Division is a sister component of ATF; has no oversight authority
over ATF; and the purpose of the audit was to establish that the NFRTR was accurate enough to
justify criminal prosecutions. It is improbable that one component of a federal law enforcement
agency wou ld engage in conduct that would reflect badly upon another component, or the agency
itself; and questioning the legal basis for a federal law enforcement activity would be sensitive
because of potential legal liabilities, such as overturning convictions and payments to citizens for
damages for wrongful convictions.
There are reasons to doubt the independence of Treasury Department and other
Government officials regarding their characterization of "errors" in the NFRTR. There are also
reasons to question the validity and reliability of Mr. Busey's characterization of what he termed

40

Id. at 1336.

18

Exhibit A, Pg. 192

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 19 of 57

"common errors" and "critical errors" and "error rate" in the October 1995 "ROLL CALL
TRAINING" session because (1) these terms do not correspond to terms used by the quality
control team, and (2) inspection of " Weekly - Quality Review Report" documents disclose that
the quality review team manipulated the NFRTR error rate by changing the definition of
" Significant Error" by renaming it "Error.'.4 1 Error and error rate reports created by the quality
review team, obtained via a FOIA request by Mr. Larson, are not straightforward and their
meaning is difficult to interpret; for example, one weekly report states:
llnce 6/30/ 9• reviewed ~ Errors l l i l Sigiiilicant erro~
Collmon Error rate .01'
Si gnificant error rate .01'

fil

42

No valid and reliable overall error rate of any type could be identified from any of the
documents because numbers of "Errors" and "Significant e1Tors" were different among nearly
l 00 different weekly reports ATF disclosed in responding Mr. Larson 's FOIA request.

41

ATF's "Quality Review" team manipulated the definition of"error'' as follows. One document states: "On
approximately October 3, 1994, we began defining and separating the significant errors from the common errors,"
and this document defined " Significant Errors" as shown below:

llpificant Errors :

l.
2.

3.

4.
-

s.
6.

Mispelled and/or lnc:oaiplete IWDeB .
Voided appl ic:ati on--didn' t indicat e
current fire&J:lll po•••eaor.
$200/ $5 remittance not posted.
ti.ver mailed approved f orm to
transferor
Approved wrong fintarm to trilllSf•re•.
Approved f orm never updated in N'FRTR.

Congressional Hearing, House of Representatives, Treaswy, Postal Service, and General Government
Appropriations for F iscal Year 1998 at I 03, availah le at http://www.nfaoa.org/documents/ I997testimonv .pdf.
Another weekly report reclassified " Significant Errors" as "Errors" except for slightly changing one type of error,
namely, "2. Voided application - - djdn' t indicate previous owner," as shown below:
Errors :

l.
2.
l .

4.
5.
' ·

Mispelled and/ or Ineoaiplete ~.
Voided applic:ation--didn' t indicace· previoua ownar.
$200/ $5 remit t ance not posted .
llever mailed approved form to tran11feror
Approved wr-ong firelll"1ll to transfen..
Approved form never updated in HFRnt.

Id. at I 04.
42

Id. at 103.

19

Exhibit A, Pg. 193

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 20 of 57

NFRTR Data Inaccuracies: Early Statistical Evidence. 1992 to 1996
Because of Mr. Busey's statements that records of Forms 4 could not be located in the
NFRTR, Mr. Larson sought to determine if there was any independent statistical evidence that
ATF had lost or destroyed NF A registration documents by analyzing publicly available NFRTR
data on "NF A registration activity" from 1992 to 1996. Mr. Schaible's testimony LeaSure
indicated that ATF may have added registration documents obtained from firearms owners to the
NFRTR after discovering that NF A Branch clerks had thrown documents away rather than work
on them.
Under a FOlA request, Mr. Larson obtained copies of reports of annual ''NFA
registration activity" from 1992 to 1996 from the NFA Branch, which list 11 categories of
fireanns registration activity represented in the NFRTR. 43 Inspection of the data indicates that
some data lack face validity ; that is, does not measure what it purports to measure. The reason is
that there are records of NF A registration activity during and prior to the I 920s, a logical
impossibility because the NF A was not enacted until 1934. Just as when a clock incorrectly
strikes 13 on the hour, causing one to question what hour it really is and raising doubts about

43

The NFRTR data Mr. Larson obtained are available in Eric M . Larson, Work Papers on Errors in the National
Firearms Registration and Transfer Record, and Other Issues Regarding the Bureau ofA/cohol, Tobacco, and
Firearms. Prepared for the Honorable Pete Sessions, House of Representatives, Washington, D.C., April 2, 1999
(unpublished), inserted at 5-6, available at http://www.nfaoa.org/documents/Critigueofl 9981Greports.pdf.
The NFRTR data categories are: Form 1, Forni 3, Form 4, Form 5, Form 6, Form 9, Form 10, and Form 4467, and
differ according to whether the applicant is a private citizen, government agency, or Specia.J Occupational Taxpayer
(SOT) licensed to manufacture, import, and/or deal in NFA firearms , and whether the transfer is tax paid or tax
exempt. Form 2, currently titled "Notice of Firearms Manufactured or Imported," is a record of notice to ATF used
exclusively by and sent to A TF by SOTs, not an application form. The "Letter" category has been used to register
or transfer NF A firearms when ATF forms have not been available, but these transactions are uncommon.
Treasury IG auditors reported that ATF has not fom1ally defined the "Other" category, and stated it included "a
procedure where movie industry supply houses and movie industry property masters filed applications by telegraph
in lieu of filing a Form 3 in order to expedite processing by ATF." October 1998 Treasury IG Report at 18,
available at http://www.nfaoa.org/documents/TreasuryOIG-99-009- I998.pdf.

20

Exhibit A, Pg. 194

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 21 of 57

what hour it really was during all the other times the clock was supposed to be stri king correctly
on the hour during previous strikes, records of NF A registration activity before 1934 raise doubts
about the accuracy of records of NF A registration activity for other years.
These data tables of NF A registration activity during 1992 to 1996 are reproduced below
in the same form ATF sent them to Mr. Larson.

RUM:

Sl.llOU OF AlaJltOl, TOIM:CO AllD F lllEAAflS

DATA fHROUCH 1Zlll 1'Z

l/01193

U:ll

44'7

OTIER

TOTAL

l

30
lS
lYI
106
450
717
749
7l6
llS
l9
l7
1a
Zl

17Z040
lasa<o'>
203577
151754
13161
71960
I057Z4
430IS
41591

t*A REIOISTllAflOll ACTIVITY • Alel\IAL COllPAIUSOll

n
199Z
19'1
19'1
1919
196&
1917
1916
l ffS
lff•
l ffS
l9&Z
1981
1'80

1979
1'78

1977
1976
l97S
lt74
197'
197Z
1971
1971
1969
1968
1967
1'66
1'>6S

!'""
190
96Z
.. 961

96 1
.,~.. l') 19S9
19<.I T.l l 9<t9
1931 TO 1'l•
1<>21 ro 19z9
•lllOll 10 19~0
,-'l l ::"'~I

.... T.".:.

F4

FS

Z66SZ
Z0914
ZZ8U
Z3605
l97H
:Y,OZ

65Z7
Sl9•
6807
&165
7699
&lll

46442
42117
56015
11191
IS19
9 3&8

ZZ944

tSSlZ

5158
SSZ4

""
6245

t <.7ZO

3911

tlllZ
11417
8 1'1
68lt

SZll
2770

Ytl7
l17Z
Z67l
Z7ll
1614
lSU
1257
1737
1754
lUO

Fl

lS7

71%')6

~

7e06Z

69Z
Z7l

18193
6'1'13Z

34Z

Z<.861

09
9lS
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4$1
324
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163
108
81

174Z7
6'1'157
14666
14¥.6
lllH

77

1'}88

ll
7a
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16

178
l~l
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1017
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209
191
19
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366
11 t,4
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1Z"6
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937
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27Z

sa
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36
lSlO
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641
744
709
734
6'9
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66%9

6S74
114ZZ
lZ

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71tl
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32-4
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4714
548
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3040
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l

36841

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745

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11
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14Z

139

116

aoa

204

789
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654
2917
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716

152
1411
1150
161

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3
4

l
1

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l

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591
4 57

14
l
10
lS
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611

11

66
144
tal
4S

3U
lZ9
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7Z9

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7

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6

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1
19

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170

38766

szun

so9sn

7957!

zso4n

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14441

17

109'9

26
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11973
15134
7'46

zz

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6821

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1563
1141
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z o•6
5•417

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16
19
19
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19
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6111
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41"5
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3465
1856

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snt.
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29684

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21

Exhibit A, Pg. 195

Case 5 :08-cr-00041-L

Document 123

Filed 03/19/2009

Page 22 of 57

llUREMI f1f .UCOIQ. , JOUCCO AllD FlllUllMS

DATA J . .DUCtt 1U31/9l

llfl llECOfSTRAJION ACTIVlTY • ~l COllPAIUSOIC

voa

n

1'191
l"Z
1'91
1991
1969
1960
1967
1966
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1964
1963
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1911
1'6•
197'1
19711

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1'7362
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69927

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197 5
1971,
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1970
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176109
1&4016
20444&
15189:5
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6 7625
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5"00

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2ZIS6
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27127
18113
1473
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11420
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71011

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22
Exhibit A, Pg. 196

Case 5:08-cr-00041-L

DAf A THflOUCll I ZFl

l.f,..

Document 123

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Page 23 of 57

Filed 03/19/2009

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Exhibit A, Pg. 197

Case 5:08-cr-00041-L

Document 123

!l~U Of

Filed 03/19/2009

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24

Exhibit A, Pg. 198

Case 5 :08-cr-00041-L

Document 123

Filed 03/19/2009

Page 25 of 57

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Mr. Larson arranged the Form 4 data from 1992 to 1996 by and across single years to
determine if the number of registrations changed over time. As shown in the following table, the
total number of Form 4 registrations increased by 625 during 1992 to 1996, for registrations that
occurred since 1934 by single years through 1996 and during unknown years (registrations for

25

Exhibit A, Pg. 199

Case 5:08-cr-00041-L

Document 123

Filed 03119/2009

Page 26 of 57

years in and before I 968 have been combined). Mr. Larson reported these results in I 997 in
Congressional testimony, as shown below.
Table 4

runn 4 ('I'u-Psid) Transfel5 from 1934 to 1996, and During Unknown Yems, u

Reported

b)' A1F Dm:lng 1992 IO 1996 in the National F\nwms ~and Tnnsfer Record:
Calc:ulaOons Showing Results of Annual and OYerall Cllanges Have Been Added

llll

~

a-..

lB! ~~~ ~ CbmR!B Cblmc J&:i§
(2)

IPIMI
111116
11194
lllU3
11192

1991
111110
11189
11188
ID87
11186
11185
1984
1983
1982
1981
1980
1979

1978
1977
11176
1975
1974

una

1972
1971
1 70
.
9
1969
1968

< 1968
Unknown

CB.ANGE
Totals

(3)

8,165
7,699
8,311
6,168

7,74fJ
6,&ri6
5,400
6.821
8,176
7,703
8,318
6,162

0
+29
+10
+H
+11
+4
+7

3,524

3,526

3,911

3,913
s,ro&
2,771
3,735
3,040
2,150
1,878
1,535
979
fRl
579
363
261
36

+2
+Z
+1
+l
+1
0
0
-1
0
0
0
0

6,r;J:T
5,390

6f!JY7

S,203
2,770
3,734
3,0.0
2,150
1,879
1,535
979
667
579
353
281
36

10
13
192
2,780

22

10
13
Im
2,785
23

+4

0

(4)

7,838
7,819
6,568
5,411
6,830
8,176
7,7'17
8,321
5,172

3,529

0
+70
+U
+11
+9

0
+4
+3
+10

(6)

8,069
7$70

7JJ37
6,573
5,420
6,835
8,181
7,712
8,300
5,174

S,532

3,.915

+8
+2

3~

+3

3~

2,770

-1
+2

2,770
3,741
3,()46
2,151
1,878
1,537

3,1'.J7
3,M4
2,151
1,879

1,537
983
667

579
353

0
0
0
0

261
36
10

+l
+5
+l
+tz

193
2,79'l

79,573 87,413

(4){2)=
(5)

13

3,916

(6}(4):
(7)

(8}

6,367

(2}(1)=

(I)

0

0
+32
+18
+6
+9
+5
+6
+5
+9
+2

8,086
7,887
1,8(;1)
6/>77
5,423
6,84.1
8,186
7,714
8,331
6,174

+1'7
+17
+II
+4

+8
+l
0

3,537

+6

3,919
3,208
2,771
3,741

+S

+8

+l
+l

3,()(6

0

..

983
668
579

0
+4
+2
0
-1
0
0
+I
0

363

0

0

262

0
0
0
0

36

+l
0

+4

+l
+l
+2
+4

0
0
0

+7
26
+3
+150

95,338

10

0
0
+1
-1
25
-1
+100
103,668

13
194
2,791

(8}{6)(9)

..
+S

+6

+I
+l

0

0

0
0
+1
983
0
r;ee
+1
519
0
854
+1
262
0
36
0
0
10
13
0
194
0
2,983 +191
25
0
+281
110,014

2,151
1,878
1,538

0

....
+17

+101
+IO
+SS

+U
+11
+15
+20
+11
+11
+6

+l
+7
+1

-1
+3

.,
+I

0
+l
+l
0

0
0
+2
+203

.,

+as

Oa1a 50W'Cle: Bureau of Akoho1, Tobaoco and F\reanns. AD numbeIS shown in boktr.ce t;Jpe
44
were cakulakd by Ede M. I.anon.

Mr. Larson ' s analysis used arithmetic calculations to determine if there are changes in
NFRTR data, which could mean that registrations were being added after the fact, years after

44

Congressional Hearing, House of Representatives, Treasury, Postal Service. and General Government
Appropriations for Fiscal Year 1998 at 71 , available at http://www.nfaoa.org/documents/1997testimony.pdf. Mr.
Larson found similar patterns of apparent additions of registrations for Forms I, 2, 3, 5, 4467, and "Letter" and
"Other" categories.

26
Exhibit A, Pg. 200

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 27 of 57

ATF approved the original registration and concluded NFRTR reporting for a given year. For
example, the number of registrations for 1992 changed from 6,527 to 6,556 in 1993, a difference
of 29; similarly, the number of registrations for 1992 changed from 6,568 in 1994 to 6,573 in
1995, an increase of 12. Inspection of these Form 4 data disclose that the number of registrations
in 1992 (6,527) increased to 6,577 in 1996. Put another way, A TF added 50 registrations during
1992 to 1996, for the year 1992, which gives the appearance that A TF could have added 50
Forms 4 to the NFRTR during that period. Using the same arithmetic calculations to analyze
total Form 4 registrations for all years from 1992 to 1996, Mr. Larson determined that total
registrations increased by 625; again, the implication is that ATF may have added 625 Forms 4
to the NFRTR after being unable to locate them in the NFRTR, and NFA firearms owners
provided ATF with copies of their approved Forms 4. Note that 203 registrations were added for
years in or before 1968.
In an effort to determine whether he may have made any errors of fact or omission, Mr.
Larson asked NF A Branch officials if the increases in registrations resulted from A TF added
copies of lost or destroyed NF A registrations back into the NFRTR, after obtaining them from
firearm s owners, or if there was another explanation. NFA Specialist Gary N. Schaible told Mr.
Larson if an error was detected on a form and the form was misclassified, it wou ld be reclassified
as a Form 4, a Form 4467 or whatever form was correct, and that it would be re-entered in the
NFRTR in the year that the registration occurred.45 Mr. Schaible also stated ·'I assume that' s
happened," in response to Mr. Larson's question: "Has ATF ever added a firearm to the NFRTR,
after a lawful owner produced a valid registration, because A TF had no record of the firearm in

4

s Id. at 95.

27

Exhibit A, Pg. 201

Case 5 :08-cr-00041-L

46

the NFRTR?"

Document 123

Filed 03/19/2009

Page 28 of 57

In addition to Mr. Schaible' s comments, NFA Branch Chief Nereida W. Levine

told Mr. Larson in a January 7, 1997, Jetter that correcting errors in entering data according to
Form number or year of registration "may result in an adjustment to previously generated
statistics.',.47 NF A Branch Chief Levine concluded:
fi nally, you. aalted whether a fireara would be

~'lid• CS to
the RegU t .ry U a ~r•on po&H!a11e d a Y&l i d ~ ~atni.tion
1
that - • nee i n the itegiatry. The doc:'umant t1 ' per &Qn
~·-• is h i.s or ber evide n ce of r99i•tra~1oa .
It
-14 be added to the llllational FireaTins Registration
and Tranefer Reoor d i t the i~o~tion was not a l ready
in t h11 RecoTil .
48

If no registrations were added to the NFRTR, explanations by NF A Branch
representatives that changes in annual ''NFA registration activity" could result from correcting
errors in Form number and/or year of registration means such changes would be a "zero-sum"
game, and represent classification errors. In other words, if the annual changes resulted from
reclassified data, total registrations from all categories would not change.
To determine if the number of total registrations did not change, Mr. Larson analyzed
total registrations (for all categories) for each year from 1992 to 1996 using the same arithmetic
calculations he used to analyze Form 4 data. He found that total registrations increased each
year and totaled 18,869 for the period from 1992 to 1996, and that registrations had been added
to all NFRTR data categories for each year.

Mr. Larson concluded the discrepancies he observed in NF A registration activity, and
statements by ATF representatives, required additional evidence to reliably determine the
reason(s) for the increased number of reported registrations. While A TF personnel adding
46

Id. at 97. This question was asked and answered twice.

47

Letter from Nereida W. Levine, Chief, NF A Branch, Bureau of Alcohol, Tobacco and Firearms, dated Jan. 7,
1997, to Eric M. Larson, bearing symbols E:RE:F :GS. Congressional Hearing, House of Representatives,
Treasury, Postal Service, and General Government Appropriations for Fiscal Year 1999 at 110-111 , available at
http://www.nfaoa.org/documents/1998testimony. pd f.

48

Id. at 41.

28

Exhibit A, Pg. 202

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 29 of 57

registrations was one possible explanation, there was insufficient statistical and evidence upon
which to reliably base such a conclusion. For example, there also could have been flaws in
computer software, problems with reporting functions resulting from editing, inadequate internal
quality controls or checks, and so forth, so Mr. Larson concluded that a formal investigation was
needed, and did not present his findings as definitive. Because he was unable to conduct
additional research according to standard social sciences practices, Mr. Larson asked appropriate
Government officials to determine if ATF was adding registrations to the NFRTR. 49

Coverups in an internal ATF investigation, and a udit of the NFRTR by th e Treasury IG
A TF and the Treasury IG conducted separate investigations in 1997 and 1998,
respectively, of allegations by Mr. Larson that ATF had mismanaged the NFRTR, and there is
valid and reliable evidence that each entity avoided determining whether ATF had added
regi strations. Each covered up facts and failed to diligently investigate Mr. Larson' s complaint.
All of Mr. Larson's allegations will not be reviewed in this motion, but it is instructive to note
that the Treasury IG censored his most serious allegation. Although an audit Work Paper dated
October l 0, 1997, prepared Treasury IG auditor Diane Kentner, states the following:

49

Because NFRTR data are protected from disclosure under the NFA (26 U.S.C.A. § 5848) and considered "tax
return" information prohibited from disclosure under the tax code (26 U.S.C.A. § 6103), it was not legally possible
for Mr. Larson to visit the NF A Branch to inspect NFRTR data or observe procedures involving NF A registration
activities conducted by NF A Branch personnel.

Because the names and addresses of individual NF A firearms owners and SOTs are also protected from disclosure,
it was not possible for Mr. Larson to conduct ordinary social science research, such as drawing representative
random samples to try and contact or survey them to investigate what their experiences may have been regarding
NFA paperwork for guns in their inventory for which they had valid registration documents, but for which ATF
could find no record in the NFRTR. Similarly, Mr. Larson was legally prohibited from accessing the computerized
NFRTR data base, and thus was unable to inspect these data, run tabulations and cross-tabulations, or conduct other
analyses.

29
Exhibit A, Pg. 203

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 30 of 57

(OIG Follow Up)
> Did ATF add additional firearms to the NFRTR that were originally registered on
Form 1 or 4467 during 1934 to 1971 , for which ATF lost or destroyed original
records.
50

there is no evidence in either of its 1998 reports on the NFRTR, or in the 1998 audit Work
Papers, that the Treasury JG fully investigated Mr. Larson 's allegation.
Mr. Larson's original allegation, reproduced below, states:
L ATP~ hPe deliberatdJ destroyed original &arm~ documents dial
thq are required bf law to maintain, as noted m swvm tellltimOl1:1 ln 11196 b7 A'Jll' Special
Agent Gary N. Schal!lle.• In analyses or data made pubHc bJ ATP, I round that during um
Co 11186, ATF m-.y haw 8lided 119 or man! f1reamia to the NPK'l1l wbidl wen: origimlb
tt:giaCaed an Poma 1 or POan 4467 during 1934 to 1971, rot wtlk:h ATP Jost or ~1
destnmd the ocildmJ ~
I :>

The Treasury IG censored Mr. Larson 's allegation in its October 1998 audit report, and is
reproduced on the following page.

so Work Paper D-5, October 10, 1997 at 1, available at http://www.nfaoa.org/documents/Work Papers D.pdf.
51

Letter to Valerie Lau, Inspector General, Office oflnspector General, Department of the Treasury, dated May 10,
1997, from Eric M . Larson. Congressional Hearing, House of Representatives, Treasury, Postal Service, and
General Government Appropriations for Fiscal Year 1999at 99, available at
http://www.nfaoa.org/documents/ I998testimony.pd f.

Form I ("Registration of Firearms") was used from 1934 to 1968 to register unregistered NFA firearms; after 1968
it was titled " Application to Make and Register a Firearm" because the Gun Control Act of 1968 prohibited the
registration of unregistered NF A firearms after the 1968 amnesty period expired (a citizen can " make" and register
an NFA firearm by paying a $200 tax and first obtaining ATF's approval to do so). ATF created Form 4467
" Registration of Certain Firearms in November 1968") under§ 207(b) of the 1968 Act to accept registrations of
unregistered firearms, with immunity from prosecution, during the amnesty period from November 2, 1968, to
December 1, 1968.
The year 1971 specified in Mr. Larson's complaint relates to a different allegation that ATF had improperly
registered unregistered NF A firearms after the 1968 amnesty period expired. Such registrations would violate the
NFA, because " [n]o firearm may be registered by a person unlawfully in possession of the fireann after December 1,
1968, except that the Director, after publication in the FEDERAL REGISTER of his intention to do so, may establish
periods of amnesty, not to exceed ninety (90) days in the case ofa single period with such immunity from
prosecution as the Director determines will contribute to the purposes of " the NFA, as stated A TF's published
regulations in the Code of Federal Regulations, 1969 edition at 93. See 26 C.F.R. I 79. l 20(a)(3)(b), available at
hnp://blo2.princelaw.com/assets/2008/7/7/ l 969-CFR-A TF-amnestv-regs.pdf.

30

Exhibit A, Pg. 204

Case 5:08-cr-00041-L

Alleptioll 1.

Document 123

Filed 03/19/2009

Page 31 of 57

Destructio11 of Documents
"ATF employees have dellberately destroyed oripw firearms
relistradon documents that they are required by law to maintain,
•noted in sworn testimony in 1996 by [an ATF SpedaHst]."

52

In the internal 1997 ATF investigation, which was completed before the Treasury IG
started audit work to investigate Mr. Larson' s allegations, Mr. Schaible contradicted his
testimony in LeaSure about NF A Branch employees destroying N FA documents in 1994 by
stating under oath to ATF Special Agent and internal investigator Jeff Groh:
In response to LarllOQ 1 • tir•t alleqatian reqard.ingtestillony in u. s. Oist riot court.
aade reference to oertai.n d ocu.enta being destroyed at
the Nf'A Branch.
• s tated h• m-4•· tbe cmmeota :
in referance to t.houands o f Tit.le ·II fJ.re.arM
·
manu factured by
that ware .beiai.J
e.xported to
Various .amiraoturers vara
f o rvarcling the papervorlt f or these tir.uU. BoWeVer •

not all of the papervorlt vas entere d. prvperly. ·into t:be
NFA systai. It was suspe c t ed that SOiie. or tb.e coatra.ct
e11pl oyees bad destroyed s cme ot th• ~ts iD an
effort to reduce ca- l oad . &daita t:b&t
IArson -Y have conatrued from h is te.tillony that A'J7
eapl o y - -re deatroyir19 docu.ent.s, .bQt tbi• ·was not
th• c.se.
li1l9gested that . i.f.. t.bare' V.S· .an
i n cre-• in any li1FA f.ire&.r11 r 99i strat.ione, it -:r bave
resulted fro. tbe changes made to reflect. diffarant
for11 nuabers ~in9 loc.ted and entered or froa tbe
t r ansposit.ion ot r99.istration d ate. oa the o r iqioal
for . .
S ucb c:hanqea would have been added to tM Jl'FR'l'R. 53

The October 1998 Treasury IG report stated that Mr. Scha ible
... was referring to an incident in 1988 when NFA Branch management suspected that
two contract employees were disp osing of documents. These contract employees were

52

October 1998 Treasury JG Report, at 7, available at http://www.nfaoa.or!?/documents/TreasurvOIG-99-009l 998.pdf.

53
" [REDACTED], et al." Report of Investigation, by [REDACTED], Bureau of Alcohol, Tobacco and Firearms,
September 8, 1997 at 90. Congressional Hearing, House of Representatives, Treaswy, Postal Service, and General
Government Appropriations for Fiscal Year 1999 at I 02-103, available at
http://www. n faoa.org/documents/ I 998testi mony .pdf.

Mr. Schaible's reference to "Title II firearms" refers to Title II of the Gun Control Act of 1968 (Title IT is also, but
less commonly, known as the National Firearms Act of 1968); consequently, NF A firearms are also referred to as
Title Il firearms. Special Agent Groh, representing ATF Internal Investigations, contacted Mr. Larson and advised
that he had been assigned to investigate his allegations, is the author of the foregoing Report oflnvestigation.

31

Exhibit A, Pg. 205

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 32 of 57

immediately removed from their assignment to the NF A Branch. The employees could
not be hired or fired since they were employed by a contractor.54
In LeaSure, Mr. Schaible testified under oath he was aware of "occasions ... in the NF A
Branch of clerks throwing away transmissions because they don ·t want to fool with them" rather
than process them (Mr. LeaSure testified he FAXed registration documents to ATF in 1994, and
ATF claimed it was unable to find a record of them). 55 Under cross-examination, asked "that's
one of the things [NFA Branch clerks throwing away documents] that could happen to you?,"

Mr. Schaible replied "Certainly."56 In response to a question whether "people have been
transferred and fired as a result of that, haven ' t they," Mr. Schaible answered: "The only
situation I can remember is, no, they weren' t transferred. No, they weren't fi red. They
eventually quit, yes, but, no, nothing like transferred or fired." When asked "Did [ATF] ever
continue anybody in that particular job after they threw someth ing away, threw an important
transmission away or destroyed it or put it in the shredder or whatever they did? [ATF]
continued them doing that kind of work?" Mr. Schaible said " With monitoring, yes." 57
Regarding Mr. Schaible' s contradictory statements, made under oath , the October I 998
Treasury IG audit report concluded:

October 1998 Treasury IG Report at 7, available at http://www.nfaoa.org/documentsffreasurvOIG-99-0091998.pdf.

S4

ss United States ofAmerica vs. John Daniel LeaSure (1996) at 42-43, available at
http://www. n faoa.org/documents/LeaSureTrial .pd f.

s6 Id. at 42-43.
57

Id. at 43.

32

Exhibit A, Pg. 206

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 33 of 57

Our review of the allegations showed that:

1. National Firearms Act (NFA) documents bad been desttoyed
about 10 ye8rs ago by contract employees. We could not obtain
an accurate estimate as to the types and number of records
destroyed.
58

The limited scope of the Treasury IG audit is troubling because Discovery sampling
analysis disclosed a large number (176) of "critical errors" 59 which the Treasury JG failed to
mention or publi sh in either of its 1998 audit reports, compared with 37 "discrepancies" it
identified in its December 1998 report;60 and despite finding large numbers of "critical errors,"
there was no effort to reliably estimate the accuracy and completeness of the NFRTR.
The 1998 Treasury IG audit also raises reasonable doubt about the validity of Certificates
of Nonexistence of a Record (CNR) that ATF provides to courts to certify that no record of
registration for particular firearms can be located in the NFRTR. The reason is that the Treasury
IG auditors formally declined to evaluate the accuracy of procedures ATF uses to search the
NFRTR to legally justify issuing CNRs, which are also issued to attest that specific firearms are
not registered to specific persons. NFRTR data are also routinely used for other law enforcement
activities, including legal justifications for issuing search warrants.

58

October 1998 Treasury IG Report at 1, available at http://www.nfaoa.org/documents/TreasuryOIG-99-0091998.pdf.

59

Work Paper H-0, April 23, 1998, at I.

60

December J998 Treasury JG Report, at 12, available at http://www.nfaoa.org/documents/TreasuryOIG-99-0181998.pdf. The "discrepancies" identified in the December 1998 Treasury JG Report are identified as "critical
errors" in audit Work Papers.

33

Exhibit A, Pg. 207

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 34 of 57

The "Objectives, Scope and Methodology" section of the December 1998 Treasury IG
report states:

Our scope did not include a review of the accuracy of ATF' s certifications
in criminal prosecutions that no record of registration of a particular
weapon could be found in the registry. We also did not evaluate the
procedures that A TF personnel use to search the registry to enable them to
provide an assurance to the court that no such registration exists in specific
cases. Accordingly, this report does not provide an opinion as to the
accuracy of the registry searches conducted by A TF.
Audit work was perfonned from October 1997 through May 1998. Our
review generally covered ATF' s administration of the registry for the
period October 1, 1996 through March 31, 1998.
Our work was conducted in accordance with Government Auditin&

Standards issued by the Comptroller of the United States, and included
~ch audit tests as we determined necessary.
According to the edition of Government Auditing Standards the Treasury IG used in its
audit of the NFRTR, the Treasury IG auditors failed to comply with an applicable audit standard,
"abuse," as stated below:
Abuse is distinct from illegal acts and other noncompliance. When abuse occurs, no Jaw,
regulation, contract provision, or grant agreement is violated. Rather, the conduct of a
government program falls far short of societal expectations for prudent behavior.
Auditors should be alert to situations or transactions that could be indicative of abuse.
When information comes to the auditors' attention (through audit procedures, tips,
or other means) indicating that abuse may have occurred, auditors should consider
whether the possible abuse could significantly affect the audit results. If it could, the
auditors should extend the audit steps and procedures, as necessary, to determine if
the abuse occurred and, if so, to determine its effect on the audit results [emphasis
added]. 62
61

Id. at 4.

62

See Chapter 6, " Field Work Standards for Performance Audits." Government Auditing Standards, by the
Comptroller General of the United States. 1994 Revision. Washington, D.C. : U.S. Government Printing Office,
1994at75.

34

Exhibit A, Pg. 208

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 35 of 57

There is no statement in the 1998 Treasury JG reports that the auditors (1) considered whether
decreasing the "critical error" rate at the request of the audited party at interest (NF A Branch
representatives) to achieve a desired result "could significantly affect the audit results," or (2)
attempted "to determine its effect on the audit results." In a Work Paper documenting the 1998
audit procedures and activities, the Audit Manager attested that "abuse" was not an issue:

Ref.

Initials

N/A

2.12 Auditors have been alert
to situations or
transactions that could be
indicative of illegal acts
or abuse, and have
extended audit steps as
necessary (GAS 6.26, 6.32,
6.35).
(Support is

stctement in audit
quidelines to be alert to

these situations or
transactions, and any
related work performed.)
3

The conduct of the Treasury IG auditors, who under Government Auditing Standards are
required to be "independent,"64 clearly "falls far short of societal expectations for prudent
behavior." The reasons are that the Treasury IG auditors (I) manipulated audit procedures at the
request of NF A Branch representatives for the purpose of deliberately decreasing the "critical
error" rate of the NFRTR because the 18.4 percent "critical error" rate the Treasury JG auditors
found was "disappointing at best and could have serious consequences for ATF' s firearm

63

Work Paper Bundle A; page 5. The initials RKB are those of Treasury IG auditor Robert K. Bronstrup, identified
in Work Paper A-I as the "Lead Auditor"; and as "Audit Manager" in the October 1998 Treasury IG report at 27,
and December 1998 Treasury IG report at 49.

64

Government Auditing Standards, by the Comptroller General of the United States. 1994 Revision. Washington,
D.C.: U.S. Government Printing Office, 1994 at 22. See Chapter 3, "General Standards," which states: " In all
matters relating to the audit work, the audit organization and the individual auditors, whether government or public,
should be tree from personal and external impairments to independence, should be organizationally independent,
and should maintain an independent attitude and appearance."

35
Exhibit A, Pg. 209

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 36 of 57

registry mission," (2) left unanswered whether "critical errors" exist in other NFRTR categories,
(3) failed to reliably estimate the "critical error" rate of the NFRTR, as required by Discovery
sampling rules and procedures, by increasing the size of the sample and conducting additional
analysis, (4) chose to avoid resolving reasonable doubts (created by their audit findings) about
the accuracy and completeness of the NFRTR, and by extension the validity and reliability of
ATF's Certifications of Nonexistence of a Record (CNRs) that "provide an assurance to the court
that no such registration [for an NF A firearm] exists in specific instances."

Congressional Hearings on the NFRTR from 1996 to 2001, and related issues
Each year from 1996 to 2001 , Mr. Larson and other concerned citizens provided
testimony or statements to the Congress about the accuracy and completeness of the NFRTR. 65
The most important outcomes of these testimonies and statements were (1) the 1998 Treasury
Department Inspector General audit of the NFRTR, and (2) appropriations language that
allocated $1 million to ATF, with instructions to use it to render the NFRTR accurate and
complete. There is no evidence, however, that either of the foregoing outcomes rendered the
NFRTR accurate and complete, or resulted in a valid and reliable estimate of the NFRTR error
rate. Consequently, the accuracy of the NFRTR is still currently unknown .
The Treasury JG auditors did not follow GAGAS to reliably estimate the "critical error"
rate of the NFRTR database, in part, because NF A Branch representatives inappropriately
requested them to manipulate the definition of "critical error" to achieve a lower rate, but that is
not the who le story. The reason is that the Treasury IG auditors requested an Assistant Director
at the U.S. Government Accountability Office to advise them how to conduct D iscovery

65

These Congressional testimonies and statements are listed in Mr. Larson's VITA, which has been separately
submitted to this Court, and include a variety of issues not relevant to Friesen; they are not listed or reviewed in this
motion.

36

Exhibit A, Pg. 210

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 37 of 57

sampling in its 1998 audit, 66 and with knowledge of correct procedures for doing so declined to
follow his advice. Consequently, the "critical error" rate for the NFRTR database was not
estimated in the 1998 audit.

Mr. Larson ' s requests to top Government officials with oversight responsibility over ATF
to conduct meaningful oversight, particularly over ATF 's continuing mismanagement of the
NFRTR, failed. For example, when Mr. Larson expressed concerns to Treasury Department
Inspector General David C. Williams about the integrity of the 1998 audit based on the Treasury
JG censoring his most serious allegation against ATF, and that the audit was conducted during a
period that included the regime of the his corrupt predecessor (who resigned in 1998 following
Senate bear ings documenting her misconduct), Dennis S. Schindel, Assistant Inspector General
for Audit, responded in a January 7, 1999, letter:

66

The Treasury IG auditors infonnally requested Barry Seltser, Assistant Director and Manager, Design,
Methodology and Technical Assistance Group, U.S. Government Accountability Office (GAO), for advice in
conducting sampling procedures and data analysis in its 1998 audit of the NFRTR. At a January 20, 1998, meeting
at GAO Headquarters, which included Sidney Schwartz, Mathematical Statistican, GAO; Carol Burgan, Auditor
[DELETED], Robert Broostrup, Audit Manager, and Gary Wilk, Auditor:

Mr. Seltser suggested that we use "discovery" sampling for the top three Forms that we were
concerned about (Form 4467, Other, and Letter categories). In discovery sampling, about 6070 items are selected from each category and tested for "critical" and "non-critical" errors. If
no errors are found in this discovery sample, then we could make a statement about the
category. If ~ors are found, then we must expand our sample based on a mathematical

formula.
Work Paper F-19, prepared by Carol Burgan, January 24, 1998 at I.
The Treasury IG auditors did not follow Mr. Seltser's recommendation to " expand our sample based on a
mathematical formula" after discovering "critical errors" in the Discovery samples. Mr. Seltser' s advice was
infonnal; representative of the kind of infonnal advice GAO typically and often renders to Executive Branch
agencies upon request; and GAO was not involved in the Treasury IG 's 1998 audit of the NFRTR.

37

Exhibit A, Pg. 211

Case 5 :08-cr-00041-L

Document 123

Filed 03/19/2009

Page 38 of 57

De a r Mr. Larson :
Mr . Wi lliams has as ke d me to res p ond to you r lette r of
November 5, 1998 .
I n that le t t er you exp re s sed concer n that t h e
previou s Ins p e c tor Genera l, Va l e rie Lau and o t h er s may have tried
to c omp romise a cong r e ssionally d ire c ted a udit of the fir ea rm
r egistrat ion practices of t h e Burea u o f Alcohol , Tob acco and
Firearms (ATF) .
Since my o ffi c e o v ersaw the wo r k , I a ssured
Mr . Wi l l iams a n d wi sh to assure you that no effort to inf luence
the audi t occurred .
67

In March 1999, Mr. Schindel told Mr. Larson the 1998 audit "determined there were
errors in the [NFRTR] based on statistically valid sampling methodologies." He added that ATF
" is operationally responsible for correcting the errors in the [NFRTR] data base," and it is
"A TF ' s management responsibility to identify and correct all of the records that may be in error
in the registry." 68
Similarly, Mr. Larson expressed concerns to then-ATF Director John W. Magaw, who
answered them in a November 19, 1999, letter:

Your allegatio ns concerning my staff are totally
without foundation.
I have been advised of all your
allegations concerning the Bureau of Alcohol, Tobacco
and Firearms' (ATF) administration of the National
Firearms Act (NFA), beginning with your attempts in
1987 to have certain firearms removed from the statute
up through the recent issuanc e of the Off ice of the
Inspector General (OIG) reports.
I have reviewed the
OIG reports and agree with my staff that most of your
allegations are witho~t merit.

67

Eric M. Larson, Work Papers on Errors in the National Firearms Registration and Transfer Record, and Other
Issues Regarding the Bureau ofAlcohol, Tobacco, and Firearms. Prepared for the Honorable Pete Sessions, House
of Representatives, Washington, D.C., April 2, 1999 (unpublished), inserted at 36-37, available at
http://www.nfaoa.org/documents/Critigueofl 9981Greports.pdf.
68

Letter from Dennis S. Schindel, Assistant Inspector General for Audit, Office oflnspector General, Office of
Inspector General, Department of the Treasury dated March 25, 1999, to Eric M. Larson.

38
Exhibit A, Pg. 212

Case 5 :08-cr-00041-L

Document 123

Filed 03/19/2009

Page 39 of 57

We have carefully considered the recommendations made
by the OIG and are working to ensure that the NFRTR
continues to be an accurate and reliable database of
firearms transactions.
69

The foregoing statements by Assistant Inspector General for Audit Schindel and ATF
Director Magaw, each of whom were key Government officials who had major and significant
federal law enforcement responsibilities in 1999, are not worthy of belief.
Congress appropriated $500,000 for fiscal year 2002 for ATF to use "with the aim of
reducing processing times and ensuring the completeness and accuracy of the NFRTR." 70 The
appropriations hearing records included questions by the Subcommittee on Treasury, Postal
Service and General Government about the NFRTR, including the need for " [a]n independent,
annual audit of the [NFRTR] database covering registration to retrieval ," and when it would be
"possible to confinn the completeness and accuracy of the NFRTR." 71 Congress again
appropriated $500,000 for fiscal year 2003 for improving ATF ' s licensing and regulatory
operations, " including making significant progress in correcting remaining inaccuracies within
the NFRTR database." 72

69

Letter from John W. Magaw, Director, Bureau of Alcohol, Tobacco and Firearms dated November 19, 1999, to
Eric M. Larson at 1 and 3, available at http://www.nfaoa.org/documents/MagawLetterl 999toLarson.pdf.

70

Report No. 107-152, to accompany H.R. 2590, Treasury, Postal Service, and General Government Appropriations
Bill, 2002. 107th Cong., lst Sess., House of Representatives (2001) at 20. These funds were approved in The
Treasury and General Government Appropriations Act, 2002, P.L. 107-67, 115 Stat. 514 (2001).
71

"Regulatory Processes and Resources," Treaswy, Postal Service, and General Government Appropriations for
Fiscal Year 2002. Hearings before a Subcommittee of the Committee on Appropriations, House of Representatives,
l07th Congress, 1st Sess., Part I at 476-479.

72

Report No. 107-575, to accompany H.R. 5120, Treasury, Postal Service and General Government Appropriations
Bill, 2003. 107th Cong., 2d Sess., House of Representatives at 19 (2001 ). These funds were approved in Report
No. 108-10, Conference Report to accompany H.J. Res. 2, l 08th Cong., l st Sess. at 1324-1 325 (2003).

39

Exhibit A, Pg. 213

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 40 of 57

The Subcommittee was influenced by an independent statistical expert, Dr. Fritz J.
Scheuren, who advised them in response to its request for his review of responses ATF provided
to three questions asked by the Subcommittee.

73

Dr. Scheuren stated, in part:

Tec:hnolo17 question.. My readiDc oltbe OJO npone ngelU that Tfrf Mlioua
problw wae UDCO¥mecl in AlYa recordbepinc .,.--.. In &d, in my lcac
aperienc:e, I CaJlllOt think al any in.M..,... when pGmW reeal.. ""'obq;ned I
wu g:reatly tloubl8d. tberefon, by A'l'Fa comment that i1 " ••. band llOthinc in the
OIG report to julti(y a statutory or adminiatntive c1a_,._• n.e a1dam.atian
Coaduaoas. I can only olrer a qualified opinion cm the ATYa ao..nren but il their
resp cnaee ue to be takea at
value. two ccmdu.ai.oll.a aiee: (1) ATP h.u aer:iowi
mateJial weabieaaa in ib fintarm registration 8J1t8m which it baa yet to
acknowleclce and (2) the ATP &iepa taken to i.mprow it.a nicordbeping clearlJ lack
thoroagb!l- and probably lack timelineas as well
Recommeadadou. Let me alftt three ncommendatiom to the Committee for its
conaideraticm.: (1) ATP abould be ukecl to enpp u outaide audit orp.niatiou to
cive a more complate aaeesament al the weakneaaea iD their m.tinc firearms
system. The ecope al the OJG audit was too n.anow. 'l"h.- aactita ahould be aDDual.
induclinc • full teet al the system from reciatntion to retDrtaL 1be Poet Office has
such audit pnctices and afFer8 a model of.the caarpletenw needed. (2) ATF should
be aabcl to coodact. thorough bend>markiJic e8'art lookiDg at recordbepi.ac
pradicas an.d how they an changing both within pem.ment and iD orpnizatiana
lib iD.9uraDc@ companies that have to keep files for long perioda. nm
benchmarking will require another (separate) outade contnctor experienced iD
condueciDg well atudiee.. (3) The UM ol record liDbp technologiea to eest ud
update the ATF &re.nu sys&em Clo reduce ita iaobrtiCJD are we.th lltudy. A ma&cb
with the SSA decedmt Se ii m ua=ple, bat there are other ~t systema
that micbt be looked at tu0..P-1bly J~idatim wou1.cl be needed but before~
legi.a)ation ATP should encace ~ or more ezperta in recorcl liDbce techniquea u
CODMlltanta on the preeent '"matchahility" al the .,..._ ud need.a for its fublft
·matcbahilicy."
74

r.ce

Dr. Scheuren's influence is evident in the following exchange between the Subcommittee
and ATF, which subsequently occurred during ATF's appropriations hearing:

Qtaatio•: An indcpeodeat, ammal audit of the dllblbac eow:ring rcgislntion to
retriewl?
A.mwer: We do oot believe an indcpandent mlit oftbe datahue u oecdc:d. The
ongoing e:ff'oru we arc makiQg to ensure the c:ompletmeu and accuracy ofdie NFRTR by
imaging and indexin& the documeD1s, perfunning datahaee vcrificatioa, and linking die retrieval
system wi:dl the imaging systam will rault in stroD& iaternal ~ for tho NFR.TR.
75

73

Treaswy, Postal Service, and General Government Appropriations for Fiscal Year 2002. Hearings Before a
Subcomminee of the Comminee on Appropriations, House of Representatives. 107th Cong., 1st Sess., Part 3 at 2325, available at hnp://www.nfaoa.org/documents/200 Istatement.pdf. (Hereafter Congressional Hearings, House of
Representatives, Treasury, Postal Service, and General Government Appropriations/or Fiscal Year 2002.) Fritz J.
Scheuren, Ph.D., a past elected President of the American Statistical Association, is currently Vice President,
Statistics, National Opinion Research Center (NORC), University of Chicago.
74

Lener from Fritz J. Scheuren dated May 23, 2000, to the Honorable Jim Kolbe, Chaim1an, Subcomminee on
Treasury, Postal Service, and General Government. Jd . at 24-25.

40

Exhibit A, Pg. 214

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 41 of 57

There is currently no evidence that ATF has satisfactorily complied with Congressional
instructions to render the NFRTR accurate and complete. The Treasury IG tenninated another
NFRTR audit in 2002 before it was completed, and a former staff member stated: "We found
there were still serious problems with the NFRTR data that, to the best of my knowledge, are still
uncorrected."76
In 2007, seven years after ills Congressional statement, because private citizens expressed
concerns to him about the accuracy and completeness of the NFRTR, Dr. Scheuren reanalyzed
the NFRTR database situation. In a December I I, 2007, letter, to the Congress, Dr. Scheuren
reiterated and expanded his concerns about the consequences of "serious material errors" in the
NFRTR that ATF "has yet to acknowledge," and added: "In my considered professional
judgment, these errors render the NFRTR questionable as a source of evidence in federal law
enforcement."77

In or about 2006, possibly in response to the Justice IG' s "review" of the NFRTR, ATF
created a new form entitled "Fireanns Inspection Worknote: NF A Inventory Discrepancies," a

75

Congressional Hearing, House of Representatives, Treaswy, Postal Service, and General Government
Appropriations for Fiscal Year 2002. Hearings Before a Subcommittee of the Committee on Appropriations, House
of Representatives. 107th Cong., I st Sess., Part 1 at 479, available at
http://www.nfaoa.org/documents/l\lfRTRdocpack.pdf, at Tab 4.
In October 2008, Mr. Larson filed a FOIA request to ATF for (I) documents pertinent to this "imaging system" and
how it may help render the NFRTR accurate and complete by "imaging and indexing the documents," including any
evaluation of the accuracy and completeness of the " imaging system"; that is, whether complete documentation is
available for firearms for original registration and each subsequent transfer; (2) documents that describe the search
procedures ATF uses to provide assurances to the Court that no record of a firearm registration can be located in the
NFRTR, and (3) a copy of the current NFRTR procedures manual. ATF has not provided any documents in
response to any of the foregoing FOIA requests to date.
76

For additional information, see Stephen P. Halbrook, Firearms Law Deskbook: Federal and State Criminal
Practice. 2008-2009 Edition. Thomson West Publishing, 2008 at 572-573.
77

Letter to the Honorable Alan B. Mollohan, Chairman, Subcommittee on Commerce, Justice, Science, and Related
Agencies, Committee on Appropriations, House of Representatives dated December 11 , 2007, by Fritz J. Scheuren,
Vice President, Statistics, National Opinion Research Center, University of Chicago, at I , available at
http://www.nfaoa.org/documents/Scheuren Committee Chair Letter.pdf.

41

Exhibit A, Pg. 215

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 42 of 57

copy of which Mr. Larson obtained by a FOIA request. 78 A copy of this form is reproduced as
received by Mr. Larson from ATF on the following page.

78

Letter to Averill P. Graham, Chief, Disclosure Division, Bureau of Alcohol, Tobacco, Firearms and Explosives
dated January 24, 2007, by Eric M. Larson, available at http://www.nfaoa.org/documents/FOIA-FRTRJan2007.pdf.

42

Exhibit A, Pg. 216

0

Ill
(/)

co

01

0
())
0

0
#

I Manufacturer/Importer

Model

Type

I

Date

Caliber/ I Serial Number Transferred

I Trans(cmd to or
Received From:

I

()
""'\
I

0

Nature of the discrepancy

Inventory

0
0

~
.....

r•
0

0

()

c

3
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.......

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w

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Prepared Bv:

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--...I

Revised 2117106

+:>.

\,,.)

p

0--

.9-.:>

1of1

NFA Inventory

Exhibit A, Pg. 217

Case 5 :08-cr-00041-L

Document 123

Filed 03/19/2009

Page 44 of 57

In his January 2007 FOTA request, Mr. Larson also requested ATF to provide

2) Written or audio instructions to ATF personnel which provide guidance
and/or definitions of what constitutes an "error" or "discrepancy" in the
NFRTR.. These would include classroom training materials, flash cards, a
manual or similar guide, instructions imparted via DVD, videotape or similar
mediums of communication. These instructions would most likely be given
to ATF Inspectors, but may also be given to Legal Document Examiners,
A TF Special Agents, and others.
79

ATF stated that a search failed to locate such documents responsive to Mr. Larson 's
FOIA request, and he appealed. In a letter dated October 2, 2007, Janice Galli McLeod ,
Associate Director, Office oflnformation and Privacy, Department of Justice, stated:
After carefully considering your appeal, I am affirming ATF's action on your request.
A TF conducted a search for records responsive to your request and was unable to locate
any records pertaining to the National Firearms Registration and Transfer Record
documentation you referred to in your request. I have determined A TF's response was
correct.80
Associate Director McLeod 's statement may be valid and reliable evidence that ATF and
the Department of Justice have improperly denied a FOIA request. It is hard to believe that a
form ATF inspectors are supposed use to record "discrepancies" in the NFRTR database after
encountering them during compliance inspections of SOTs would not have been given
instructions regarding and procedures to fo llow in to reliably identify and report suspected
"discrepancies," when the stated "purpose" of the form is to "reconcile discrepancies" in the
NFRTR. It is not reasonable to believe ATF has not defined the tem1 "discrepancy," because
otherwise there would be no reason for the new form to exist.

79

Id. at 1.

so Letter to Eric M. Larson from Janice Gail McLeod, Associate Director, Office oflnforrnation and Policy, U.S.

Department of Justice dated October 2, 2007, bearing identifiers RE: Appeal No. 07-196 I, Request No. 07-458,
BE:REG, available at http://www.nfaoa.org/documents/McLeodDOJletter2007.pdf.

44
Exhibit A, Pg. 218

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 45 of 57

According to SOTs who have been inspected in or after 2006, A TF personnel who
encounter a discrepancy in NFRTR data are required to assign each discrepancy a "control
number" and forward the information to the National Firearms Act Branch for resolution. Are
there not tabulations, analyses, and other performance measures used to eva luate the accuracy
and completeness of the NFRTR? Are there no records of the type and number of discrepancies?
Associate Director McLeod ' s statement that no documents responsive to Mr. Larson' s FOIA
request can be found at National Firearms Act Branch is unworthy of belief.

Giambro: A 2007 federal court case involving the NFRTR

Jn 2008, the United States Court of Appeals for the First Circuit upheld the validity of
NFRTR data, including its use in twice creating a Certificate of None:ldstence of a Record, in
affirming a conviction for Possession of Unregi stered Firearm. 81 The Court of Appeals based its
decision mainly on Rith, testimony on the NFRTR's reliability by A TF Specialist Gary N.
Schaible, and stated " [a]lthough both the Rith court and the district court here acknowledged past

81

United States ofAmerica vs. Dario Giambra, United States Court of Appeals for the First Circuit, No. 08-1044,
October 2, 2008, available at http://www.ca I .uscourts.gov/cgi-bin/2etopn.pl?OPfN ION=08- I044P.O I A. Hereafter
Court of Appeals, United States ofAmerica vs. Dario Giambra (2008).

The Court of Appeals decision was based on United States vs. Dario Giambra, United States District Court, District
of Maine, Criminal Action, Docket No. 07-14-P-S. Transcript of Proceedings, before the Honorable George Singal,
U.S. District Judge, Sept. 25, 2007, available at htto://www.nfaoa.orl?/documents/GiambroTrial I .pdf; rest of
transcript continued at http://www.nfaoa.org/documents/GiambroTrial2.pd( Hereafter United States ofAmerica vs.
Dario Giambra (2007).
The firearm , a Model 1908 Marble's Game Getter Gun, is a low-powered small-game over-and-under combination
gun (has .22 long rifle/.44 Game Getter barrels 12" in length) with a folding shoulder stock, and was designed
mainly for trappers, hunters and outdoorsmen. The Model 1908 Game Getter is classified as " Any Other Weapon"
under the NFA (26 U.S.C. § 5845(a)(5)), was last manufactured in 1914. Jn excellent condition, accompanied by
the original box, a 12" barrel Model 1908 Game Getter is valued at $2,500 or more. Ned Schwing, "Marble's Game
Getter Gun NFA, Curio or Relic," 2005 Standard Catalog of Firearms: The Collector 's Price & Reference Guide.
15th Edition. Iola, Wisconsin: KP Books, 2004 at 728.

45

Exhibit A, Pg. 219

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 46 of 57

problems with the NFRTR, both emphasized that the ATF has addressed problems with the
database and improved its reliability."
The Court of Appeals did not state that it specifically reviewed either of the 1998
Treasury IG audit reports, or the 2007 Justice IG report (all were introduced in Giambra), in its
opinion and went on at length to affirm the District Court decision to exclude Mr. Larson as an
Expert Witness. In particular, the Court of Appeals cited the District Court finding that Mr.
Larson 's motion in limine testimony 82 was not "based upon sufficient facts or data," not "the
product of reliable principles and methods," and that Mr. Larson had not "applied the principles
and methods reliably to the facts of the case." 83 The Court of Appeals stated that "suppositions .
. . and conjecture abound(ed]" in Mr. Larson' s testimony, and the District Court "was well
within its discretion" to "conclude that ... the data on which Larson based his ana lysis was
'purely anecdotal. "'84
The Court of Appeals decision was criticized the same day it was published.85

82

United States ofAmerica vs.Dario Giambro, United States District Court, District of Maine, Criminal Action,
Docket No. 07-14-P-S. Transcript of Proceedings before the Honorable George Z. Singal, United States District
Judge, Sept. 24, 2007, available at http://www.nfaoa.org/documents/GiambroMotionlnLimineLarsonTestimony.pdf. HereaHer Larson testimony, United States ofAmerica vs.Dario Giambra (2007).

An enhanced version of Mr. Larson's testimony. with insertions of the Exhibits to which he referred has been
created for ease of reference to said Exhibits, is available at
http://www.nfaoa.org/documents/GiambroLarsonMotionlnLimineTestimonvWithExhibits.pdf.
83

Court of Appeals, United States ofAmerica vs. Dario Giambra (2008).

84

Id.

85

See "CA I: First Bends to Help Government Prove Negative in Antique Gun Registration Case," Oct. 2, 2008.
The critique states: "US v.Giambro, No. 08-1044 affim1s a conviction for possessing an antique gun. (He was
acquitted of a number of state charges.) The least interesting issue is under 26 U.S.C. 5861 (d), where the court
holds that the defendant need not have specific knowledge of the registration requirement, but just knowledge of the
statutory elements of the guns subject to the registration requirements. More interesting is the admission of the
A TF's ' Certificates of Nonexistence' of a registration record. The maker of the certificate testified. The First's
analysis isn't that satisfactory. It basically says ' other circuits have upheld their use' even though there used to be
problems. Finally, and without much analysis, the First says that it was fine for the District Court to exclude the
testimony of an expert witness that had done some statistical analysis on the reliability of the ATF's system of gun
registration. Because the First speaks in broad, general terms (and throws around words like ' Daubert'), it doesn't

46
Exhibit A, Pg. 220

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 47 of 57

Mr. Larson' s motion in limine testimony was based upon, and is not materially different
from , most of the evidence presented in this motion. It was not until his motion in limine
testimony in Giambro that Mr. Larson concluded ATF had been adding firearm registrations to
the NFRTR after being confronted with NFA firearms owners with their copies of the
registrations, based on the 2007 Justice I G report, and that is what he stated. 86 For more than a
decade, Mr. Larson qualified his concerns that, e.g., ATF "may have" added registrations to the
NFRTR after losing their copies or records of them, because Mr. Larson did not believe the
evidence he cited was sufficiently conclusive. 87 It was only after the Justice JG report reported
in 2007 that ATF had added registration documents to the NFRTR that he concluded otherwise
(the Treasury IG confirmed his allegation that "National Firearms Act (NFA) documents had
been destroyed").88

Giambro differs from Friesen because (1) Mr. Giambro never contended the NFRTR was
inaccurate with respect to him, and told one of his attorneys he had not registered the firearm, 89

seem like it was taking this issue seriously." Available at http://appellate.typepad.com/appellate/2008/J O 1-firstlea
bends.html.
86

Larson testimony, United States ofAmerica vs.Dario Giambro (2007) at 67-68.

87

It would have been inappropriate for Mr. Larson to attempt to estimate or publish (such as in a professional,
refereed journal) a "critical error" rate of, e.g., ATF adding firearm registrations it had lost or destroyed to the
NFRTR, because any such estimate would not have been based on valid and reliable evidence.
Results of Discovery sampling analysis by Treasury IG auditors in 1998 provided valid and reliable evidence of
"critical errors" in the NFRTR database, but the auditors failed to extend the audit as GA GAS required and estimate
the " critical error" rate, or explain the effect of these "critical errors" upon the audit. Because the NFA (26 U.S.C.A.
§ 5848) and the tax code (26 U.S.C. § 6103) each prohibit Mr. Larson from accessing these data, he was unable to
estimate the "critical error" rate for NFRTR data.
88

October 1998 Treasury IO Report at 1, available at http://www.nfaoa.org/documents/TreasuryOIG-99-009l 998.pdf.

89

An unexplored aspect of Giambro is whether his late father - from whom Mr. Giambro inherited the Game Getter
and 203 other firearms, and who instructed him to always keep an accompanying "certificate" in the original
wooden box provided by the manufacturer along with the gun - had registered the Game Getter or acquired it
through a lawful transfer approved by ATF, and ATF withheld the registration record to enable a prosecution after
Mr. Giambra was acquitted in state court of an unrelated firearm wounding charge on grounds of self-defense. This

47
Exhibit A, Pg. 221

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 48 of 57

(2) that attorney misunderstood the NF A and attempted to register the fi rearm on Mr. Giambro 's
behalf, and (3) both attorneys petitioned the District Judge to exclude Mr. Giambro 's statements
and the attempt by one attorney to register the firearm, because the NF A prohibits using
information resulting from an attempt to register an NFA firearm in criminal prosecutions,90
which could have predisposed the District Judge to fail to adequately consider evidence at trial
that the NFRTR is inaccurate and incomplete.
In Friesen, this Court questioned the reliability of NFRTR data

On September 17, 2008, this Court expressed concerns about the validity and reliability
ofNFRTR data in Friesen, in part because the "government has relied almost exclusively" upon
NFRTR data in "many of its exhibits. " 91 In further explaining the reasons that "persuade[d] me
to allow the testimony [of Dr. Scheuren] and overrule the motion" by the Government to exclude
him as an Expert Witness, the Court stated:
One is, of course, the duplicate records of Exhibit 100, and then the government's record
of the same firearms, which both appear - I've never heard satisfactorily explained why
there were two of those records. Secondly, the other relationship to the issue over the
accountability of the other guns that are on the government's chart. And thirdly, the issue,
unexplored aspect is significant because (1) there are no independent checks on whether ATF personnel are truthful
about their inability to locate a registration document, (2) as the evidence in this motion has reliably documented and
contends, there is reasonable doubt regarding ATF's integrity in characterizing the accuracy and completeness of
NFRTR data, (3) there has been no publicly known independent evaluation of the adequacy of the search procedures
ATF uses to certify to a court that a particular firearm is not registered, and (4) it is not uncommon for persons who
inherit registered NF A firearms to be unaware of the need to apply to have ownership of the firearm transferred to
them. In such cases, as long as the firearm remains in the chain of inheritance, ATF does not typically initiate
criminal action and allows a reasonable time for the firearm to be transferred to the lawful heir. Based on Mr.
Giambro 's statement, he did not register the Game Getter. It is unclear whether (1) the Game Getter was registered
to Mr. Giambro's father (ATF attested that it was not), and (2) Mr. Giambro was aware oftbe legal requirement for
a registered NF A firearm to be transferred to a lawful heir after the death of the registered owner. Because Mr.
Giambra may have been suffering from mental illness to some extent, which could have further complicated his
legal situation, he did not fully participate in his own defense. Mr. Giambro, whose assets include a $3.5 million
passbook savings account, chose to remain in jail for 5 months until trial because he believed the Government would
make corrupt use of the bail money he would have had to post to be released.
90

United States of America vs. Dario Giambro, United States District Court, District of Maine, Criminal Action,
Docket No. 07-14-P-S. Motion in Limine re: Evidence of Disclosure oflnformation During Compliance Attempt
(26 U.S.C. 5989), July 24, 2007, available at http://www.nfaoa.org/documents/GiambroPart6.pdf.
91

United States ofAmerica vs. Lany Douglas Friesen (2008), Vol. Vl at 1012.

48
Exhibit A, Pg. 222

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 49 of 57

the fact that the government has relied almost exclusively on many of its exhibits which
are records from the [NFRTR]. 92

Regarding this Court' s first concern, NFRTR Custodian Denise Brown' s failure to
satisfactorily explain the existence in NFRTR records why there are two approved Forms 2
bearing different dates and the same serial number (E683) as that of the STEN machine gun that
ATF acknowledges it lawfully transferred to Mr. Friesen in 1996, ind icates a lack of knowledge
of the NFRTR database and, possibly, of procedures NF A Branch personnel use to file or
retrieve fi rearm registration documents (or records of them). 93
Relevant to this Court' s second concern was "the other relationship to the issue over the
accountability of the other guns" the Government introduced into evidence to try and explain the
characteristics of the STEN machine gun at issue in Friesen. ATF' s characterization of
"weapon description" of the STEN machine gun as a Mark II,94 a point this motion will further

92

Id., Vol. VJ at 1011 - 1012.

93

Defense counsel asked NFRTR Custodian Denise Brown to explain the significance of a Form 2 dated April 20,
1986, entered as Defense Exhibit I 00, bearing serial number E683, provided to the defense under Discovery. The
Government said the NFRTR contains a record that a STEN machine gun bearing serial number E683 is registered
to Mr. Friesen (Vol. 1, Id. at 15). Custodian Brown testified that the firearm ATF approved for transfer to Mr.
Friesen was "E683, STEN Mark II ... approved February 22, 1996" (Id. at 48-49), and that the "birthing
document" for that E683 STEN Mark Il is a certified Form 2 dated May 14, 1986, submitted to ATF by
manufacturer Charles Erb Od. at 68).
94

At issue in Friesen is whether the STEN machine gun bearing serial number £683 manufactured by Mr. Erb is the
same one he manufactured, or if another STEN machine gun bearing serial number £683 was substituted in its
place. Consequently, also at issue is the accuracy of the STEN "weapon description" based on (I) data from the
NFRTR, and documentation in the custody of ATF, and (2) examinations of the STEN seized by ATF, by ATF
officials, by Mr. Erb, by transferees who previously owned the STEN, and by a defense Expert Witness. The
Government contends the STEN that ATF lawfully transferred to Mr. Friesen is a Mark II, based on the description
on the Form 2 submitted by Mr. Erb (Id. at 15) and by previous transferees wbo were available to testify, all of
whom denied that the STEN in Friesen was the STEN they had previously owned, and by others as described below.
Because one previous transferee is deceased (Vol. IV at 674-675), descriptions by other previous transferees are not
described in this motion.
After examining the firearm at trial in Friesen, Mr. Erb testified it was not the gun he manufactured "as £683" (Vol.
IV at 590); was "made to resemble a STEN Mark III" (Id. at 574); and that the gun " is a MARK Ill" (Id. at 579).
Len Savage, an Expert Witness for the defense who examined the STEN testified: "It appears to be a Sten Mark 11-S
tube that was completed with Sten Mark IlI components." Vol. VU at 1349. Mr. Erb testified: "The barrel is the
same on a Mark lil and a Mark II. They are the same length ." Vol. IV at 589.

49
Exhibit A, Pg. 223

Case 5 :08-cr-00041-L

Document 123

Filed 03/19/2009

Page 50 of 57

develop, is relevant to the Court' s second concern. Defense counsel agrees that ATF approved
the lawful transfer of a STEN machine gun bearing serial number E683 to Doug Friesen in 1996,
and disagrees with the Government's characterization of that STEN as a Mark II. Defense
counsel notes that to validate the its description of the STEN machine gun bearing serial number
E683 as a Mark II, the Government sought "confirmatory" information that the Mark II
description was valid and reliable. The Government sought this "confirmatory" information
because Dr. Scheuren testified: " I find the existing [NFRTR] records are quite useful in an
exploratory setting, but they are not accurate enough by themselves to be used in a confirmatory
way," including "for purposes of prosecution." 95
The Government asked Dr. Scheuren ifNFRTR data could be reliably verified each time
the firearm was transferred by independently obtain ing such data from each transferee, he would
consider the NFRTR data to be accurate for that firearm. Dr. Scheuren replied in the affirmative.
On redirect, defense counsel asked " . .. although you didn't come here to testify about this, if
there is a break in the link, for example, one of these witnesses didn't testify, would that cause
you a concern?" Dr. Scheuren answered: " [J]f there was gap in the evidence, yes. If there was a
chain of custody break, yes." The significance of Dr. Scheuren 's answer is that "one of these
witnesses" is a deceased transferee,96 which breaks the chain of evidence.

Also at issue is whether the STEN machine gun manufactured by Mr. Erb was (l) an unfinished tube, not a finished
receiver, (2) finished by Mr. Erb as a STEN Mark TI, (3) finished by someone other than Mr. Erb in as a STEN Mark
Il, Mark 11-3, or Mark III, or ( 4) whether Mr. Erb registered air on one or both of the Forms 2 he submitted to ATF;
that is, that Mr. Erb had not physically manufactured a S1EN Mark II or a finished or unfinished receiver.
The issue of who manufactured or finished the S1EN machine gun in Friesen has not been resolved.
95

Id., Vol. VJ at I 024.

96

Id., Vol. IV at 674-675.

50

Exhibit A, Pg. 224

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 51 of 57

This Court' s third concern about Friesen - "the fact that the government has relied
almost exclusively on many of its exhibits which are records from the [NFRTR]"97 - is justified
for three major reasons.
First, the "critical error" rate of the NFRTR is currently unknown, and efforts to discern
or estimate it even informally are compromised because ( 1) A TF officials changed the definition
of a " Significant Error" in 1995 by renaming it an "Error," and (2) Treasury IG auditors
manipulated the definitions of "critical error" in 1998 at the request of NFA Branch
representatives, to subjectively lower the "critical error" rate of the NFRTR. Dr. Scheuren
testified that " in fact, their reworking of the original 1998 data is data fishing. And you cannot
make a statement about the reliability, the probability of your being right with that data fishing,
that exercise. So they should have done another audit sample. 98
Second, relevant to Friesen, there is no law or regulation that requires A TF to physically
inspect an NFA firearm at the time of its original manufacture (or as a condition of or during any
subsequent transfer), and ATF has not presented any evidence that it has done so. Because one
transferee who possessed the STEN machine gun bearing serial number E683 is deceased, the
chain of evidence has been broken and it is not possible to reliably confirm even by sworn
statements of all living previous transferees that ATF ' s contention that STEN is a Mark II is
correct. Even if all living transferees so testified, there is no logical reason for any of them to
testify to a "weapon description" with which the Government disagrees, because doing so would
put the onus of alleged illegal manufacture of the STEN upon that previous transferee and
subject him to the hazards of prosecution.

97

Id., Vol. VJ at 1012.

98

Id., Vol. VJ at 1030.

51

Exhibit A, Pg. 225

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Document 123

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Third, although ATF has identified "weapon description" as a "critical" data fie ld,99 that
is not the most critical problem with the NFRTR data A TF uses and the concern stated by this
Court in Friesen about "the issue, the fact that the government has relied almost exclusively on
many of its exhibits which are records from the [NFRTR]." 100 The reason is that based on ATF's
inability to physically locate original documents that literally are NFRTR data, there is
reasonable doubt whether Exhibits based on NFRTR data that the Government entered into
evidence in Friesen are based on valid and reliable evidence. During the 1998 audit A TF was
unable to provide original documentation to validate computerized data routinely generated by
the NFRTR. ATF 's inability to locate original documents to reliably validate computerized
NFRTR data is an audit finding in the December 1998 Treasury IG report as follows:
A TF provided copies of other records to clarify the [37] discrepancies [reported in our
audit results]. These other records, for example, included microfiche records and other
registry database reports. We examined these records but we could not fully determine if
the records sufficiently resolved the discrepancies. 101
A TF' s inability to locate original documents, and the Treasury IG auditors' inability to
reliably validate computerized NFRTR data, is further discussed in an audit Work Paper that was
not reviewed and signed by Audit Manager Robert K. Bronstrop until December 18, 1998, the

99
Treasury IG auditor Carol Burgan stated that "error definitions for critical data fields" include "weapon
description." Work Paper F-25, Feb. 19, I 998, at l. During a January 21 , 1998, meeting at ATF Headquarters that
included ATF participants ("[redacted), Chief, Firearms and Explosives Division," and [redacted)), Carol Burgan,
Auditor [redacted), and Gary Wilk, Auditor, agreed that

Critical errors would include: serial number of the weapon, name of weapon owner,
address of owner, date of application (if·applicable), date of birth, and · eapon
w
description. Address of owner is important however, owners do not have to report
intrastate mov~ (only interstate).
Work Paper F-22, January 26, 1998, prepared by Carol Burgan, at l. Both Work Papers in this footnote available at
http://www.nfaoa.org/documents/Work Papers F.pdf.
100

United States ofAmerica vs. Larry Douglas Friesen (2008), Vol. VI, at l 0 I 2.

101

December 1998 Treasury IG Report, at I 2, available at http://www.nfaoa.org/documents/TreasurvOIG-99-0181998.pdf.

52

Exhibit A, Pg. 226

Case 5:08-cr-00041 -L

Document 123

Filed 03/19/2009

Page 53 of 57

same day the December 1998 Treasury IG report was published, suggesting there was the most
extreme of concerns about this audit finding. In fact, Jess than 3 weeks before the report was
issued, Treasury IG auditor Gary Wilk determined and stated the following conclusion:

Conclusion:

Examination of the ATF of the photo copied records did not permit this
auditor to fully determine whether the discrepancies continued to exist within
the computerized NFRTR database. The materials did not clearly
de~onstrate that the computer system, typically in use, provides reliable and
valid data when a search is performed. ATF did demonstrate that they have
the capacity to generate various information from various sources but the
original documentation remains missing and the accuracy ofthe
documentation provided cannot be assured.
102

At the outset of Friesen on Sept. 17, 2008, this Court stated: "the evidence that I exclude
... is [if] it' s not relevant to this case, or secondly, it' s not reliable evidence." 103 The conclusion
of Treasury IG auditor Gary Wilk constitutes reasonable doubt that computerized NFRTR data
are valid and reliable. To the extent any Exhibits introduced by the Government in Friesen are
based upon computerized NFRTR data, such exhibits may not be " reliable evidence" and should
be excluded by this Court as evidence in a criminal trial unless the validity and reliability of the
NFRTR data upon which such Exhibits are based can be independently and reliably validated.

In addition to other evidence presented in this motion that NFRTR data are inaccurate,
incomplete and, therefore unreliable, there is also valid and reUable evidence that statements by
ATF inspectors (including statements of ATP inspectors involved in Friesen), which are based
on NFRTR data may not be reliable. The reason is that the 2007 "review" of the NFRTR by the
Justice JG concluded:
. .. continuing management and technical deficiencies contribute to inaccuracies in the
NFRTR database. For example, NF A Branch staff do not process applications or enter
102

Work Paper F-52, November 30, 1998, prepared by Gary Wilk, at 1, available at
http://www.nfaoa.org/documents/Work Papers F.pdf.
103

United States ofAmerica vs. Douglas Lany Friesen (2008), Vol. I, at 5.

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Exhibit A, Pg. 227

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 54 of 57

data into the NFRTR in a consistent manner, which leads to errors in records and
inconsistent decisions o n NF A weapons applications. 1n addition, the NF A Branch has a
backlog of record discrepancies between the NFR TR and inventories of federal firearms
licensees that were identified during ATP compl iance inspections. Further, the NFRTR's
software programm ing is flawed and causes technical prob lems for those working in the
database. The lack of consistency in procedures and the backlog in reconciling

discrepancies, combined with the technical issues, result in errors in the records,
reports, and queries produced from the NFRTR. These errors affect the NFRTR' s
reliability as a regulatory tool when it is used during compliance inspections of
federal firearms licensees. 104 [emphasis added)

The Justice IG eval uators did not define the terms "error" or "discrepancy" in the 2007
report, and their " review" did not include determining the extent to which N FRTR data are
accurate and complete. The 2007 Justice IG report acknowledges Jack of an NFRTR procedures
manual and inadequate training of staff.

105

"Supervisors' inadequate training led to variations in

their direction and inconsistent decisions about approvi ng or disapproving N F A weapons

.
.
·
reg1strat1on an d trans fier app 1 .
1cat1ons. ,,106
NFRTR data that cannot be independently and reliably
validated should be excluded from a criminal trial

The totality of evidence presented and documented in this motion establishes that federal
law enforcement officials, and representatives of the Treasury Department, have willfully
engaged in systematic efforts to cover up the fact that the NFRTR contains serious material
errors, and that its error rate is currently unknown, among other issues relevant to Friesen. The
Treasury Department's successor, the Department of Justice, has a lso declined to consider valid
and reliable evidence that the NFRTR is inaccurate, incomplete and, therefore, unreliable.
104

June 2007 Justice JG Report at iii, available at http://www.nfaoa.org/documents/DOJOIG2007NFRTRreport.pdf.
105

"The NFA Branch does not provide staff with a comprehensive standard operating procedures manual," and NF A
Branch staff stated that they did not have adequate written direction on how to enter data such as abbreviations in
the NFRTR ... and who has responsibility for correcting errors in the NFRTR." Id. at v.
106

Id. at v-vi.

54

Exhibit A, Pg. 228

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 55 of 57

Attestations or testimonies about NFRTR data by ATF and other Government officials are, as
demonstrated in this motion, not worthy of belief.
The totality of the breadth, depth and diversity of reliably documented evidence
presented in this motion justifies this Court prohibiting the Government from using any NFRTR
data that cannot be independently and reliably validated in prosecuting Doug Friesen in a
criminal trial.
Reasonable doubt about the accuracy and completeness of the NFRTR has been reliably
established by a variety of documented evidence published by a diverse array of Government
entities that include (1) the Executive Branch (Justice IG, Treasury IG, ATF, Audit Services
Division of the Treasury Department); (2) the Legislative Branch (Congressional Research
Service, the Congress in the Congressional Record, Congressional Hearings in 1979 and during
1996 to 2001; and "report language" in reports on appropriations bills; and (3) the Judicial
Branch (the sworn testimony of and official documents presented by ATF officials in Friesen).
Also regarding the Judicial Branch, in 2007 the Government implied Mr. Larson ' s
research was not customary or diligent when he was asked by an Assistant United States
Attorney during a federal court hearing to confirm that he " .. . never had personal or direct
access to any ATF documents internally? And you've never had personal or direct access to the
NFRTR?" 107 Because NFRTR data are protected from disclosure under the NFA (26 U.S.C.A . §
5848), and are also considered "tax return" information prohibited from disclosure under the tax
code (26 U.S.C.A. § 6103), it was not legally possible for Mr. Larson to obtain "personal or
direct access" to the NFRTR and related documents under the NF A; moreover, neither could any
other person, with the limited exception discussed below.
107

Larson Testimony, United States ofAmerica vs. Dario Giambro (2007) at 79, available at
http://www.nfaoa.org/documents/GiambroMotionlnLimine-LarsonTestimonv.pdf.

55

Exhibit A, Pg. 229

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 56 of 57

To any extent ATF may claim that NFRTR documents, data or records of them are
protected "tax return" information that cannot be disclosed and decline to provide that
information to defense counsel under any Discovery motion, ATF cannot decline to disclose that
information to this Court. The reason is that after reviewing pertinent statutes, ATF determined
in 1978:

· ··-·-- -- - - -:--- 1.n
the return aub•ltted by the .tranaferor. lxoept · for
•ectlon ClOl(o)(l) whlcb .authorlse• tbe dl1olo1ure ·of
•ubtltl• I (l.e., Chapter• 11-SJ) tax lnforaatlcn to
Pedetal ••ployeea who•• offlalal duties ·require 1uab
inforaatlon, the only dlacloaure aubaection re9ardlnt
Cbapter ·53 return• and return lnformatfon ta section
610J(d) 9overnln9 dlaaloaure to State tax otflolal1
IPha .. • . , . . , _... ..1--- __ . _ " --• -- • · -·
-. 108 t
~-..,.•••••

•u~•~••19

Since this Court is constituted by a Federal employee "whose official duties require such
information," there is no legal basis for A TF to refuse to disclose "tax return" information if it is
relevant and required, including potentially exculpatory evidence under Brady. Accordingly, to
the extent this Court believes it could be better infonned about the accuracy and completeness,
and val idity and reliability, ofNFRTR data by obtaining documents or information that may
constitute "tax return" information, Doug Friesen respectfully requests this Court to consider
compell ing A TF to disclose such information for review by this Court for these proceedings.
Conclusion

For the reasons set forth above, Defendant requests this Honorable Court grant a
hearing on this motion and, thereafter to exclude, under F.R.E. 803(10), any evidence

108

Memorandum to Director, A TF, from ATF Chief Counsel regarding Freedom of In formation Act Appeal of
[redacted] dated August 18, 1980, bearing symbols CC-18,778 RMT, at 14, available at
http://www.nfaoa.org/documents/ ATFmemoTaxlnfo6 l 03.pdf

56

Exhibit A, Pg. 230

Case 5:08-cr-00041-L

Document 123

Filed 03/19/2009

Page 57 of 57

derived from a search of the N FRTR that has not been independently and reliably
validated.

Respectfully Submitted.

SI 1<.c.MJ a 1t cA-. JvJt.c;..t.
Mack K. Martin , OB.# 5738
Kendall A. Sykes, OB.#21837
125 Park A venue,Fifth Floor
Oklahoma City, Oklahoma 73102
Telephone
( 405) 236-8888
Facsimile
[phone]
Emai I: [e-mail]
Kenda Il@ Marti n lawoffi ce. net
Attorneys for Defendant
Larry Douglas Friesen

CERTIFICATE OF SERVICE
I hereby certify that on Thursday, March 19, 2009, I electronically transmitted the
attached document to the Clerk of the Court using the ECF System for filing and transmittal of a
Notice of Electronic Filing to the following ECF registrants: Mr. Edward J. Kumjega, Assistant
United States Attorney.

57

Exhibit A, Pg. 231

Exhibit 7
( Attorney General Eric Holder held in
contempt of Congress )

Exhibit A, Pg. 232

Attorney General Eric Holder held in contempt of Congress - POLITICO.com Print View

Page 1 of 4

See how Goldman Sach5 is helping
Titan International grow.
10 0

POLITICO
Attorney General Eric Holder held in contempt of Congress
By: John Bresnahan and Seung Min Kim
June 28, 2012 04:43 PM EST

The House has voted to hold Attorney General Eric Holder in contempt of Congress over his
failure to turn over documents related to the Fast and Furious scandal , the first time Congress
has taken such a dramatic move against a sitting Cabinet official.
The vote was 255-67, with 17 Democrats voting in support of a criminal contempt
resolution , which authorizes Republicans leaders to seek criminal charges against Holder.
This Democratic support came despite a round of behind-the-scenes lobbying by senior
White House and Justice officials - as well as pressure from party leaders - to support
Holder.
Two Republicans, Reps. Steve LaTourette (Ohio) Scott Rigell (Va.), voted against the
contempt resolution .
Another civil contempt resolution, giving the green light for the House Oversight and
Government Reform Committee to sue the Justice Department to get the Fast and Furious
documents, passed by a 258-95 margin . Twenty-one Democrats voted for that measure.
But dozens of other Democrats marched off the floor in protest during the vote, adding
even more drama to a tumultuous moment in the House chamber.
The heated House floor fight over Holder capped a historic day in Washington, coming
just hours after the Supreme Court, just across the street from the Capitol, issued its
landmark ruling upholding most of Barack Obama's health care law. The passions of the
day were evident inside the Capitol, where Democrats accused Republicans of ginning up
the contempt vote for political purposes while Republicans continued to charge the Justice
Department with a cover up on the Fast and Furious scandal.
The fight over the Holder contempt resolution also drew intense interest from outside
groups ranging from the NAACP to the National Rifle Association.
In a statement released by his office, Holder blasted the contempt votes as "politically
motivated" and "misguided," and he singled out Rep. Darrell Issa (Calif.) , chairman of the
Oversight and Government Reform Committee and lead Republican on the Fast and
Furious probe, for special criticism .
"Today's vote is the regrettable culmination of what became a misguided - and politically
motivated - investigation during an election year," Holder said in his statement. "By
advancing it over the past year and a half, Congressman Issa and others have focused on
politics over public safety. Instead of trying to correct the problems that led to a series of
flawed law enforcement operations, and instead of helping us find ways to better protect
the brave law enforcement officers, like Agent Brian Terry, who keep us safe - they have
led us to this unnecessary and unwarranted outcome. "

Exhibit A, Pg. 233
12/7/2013
http://dyn.politico.com/printstory.cfm?uuid=EE3F7BOA-6740-499F-8836-47489F9B7A17

Attorney General Eric Holder held in contempt of Congress - POLITICO.com Print View

Page 2 of 4

Holder added: "Today's vote may make for good political theater in the minds of some, but
it is - at base - both a crass effort and a grave disservice to the American people. They
expect - and deserve - far better."
White House officials also slammed House Republicans for the unprecedented contempt
vote. White House Communications Director Dan Pfeiffer said GOP congressional leaders
"pushed for political theater rather than legitimate congressional oversight. Over the past
fourteen months, the Justice Department accommodated congressional investigators,
producing 7,600 pages of documents, and testifying at eleven congressional hearings ...
But unfortunately, a politically-motivated agenda prevailed and instead of engaging with
the President in efforts to create jobs and grow the economy, today we saw the House of
Representatives perform a transparently political stunt.
However, Speaker John Boehner (R-Ohio), in a brief interview with POLITICO, blamed
Holder for the standoff. Boehner said the Justice Department wanted to turn over some
Fast and Furious documents - but not all - if the House agreed to drop the contempt
resolution, a deal that neither Boehner nor Issa was prepared to make.
''The idea that we're going to turn over some documents, and whatever we turn over is all
you're gonna get and you have to guarantee that you're never going to seek contempt, no
deal," Boehner said.
Boehner added that Holder never sought a personal meeting with him to resolve the fight,
despite suggestions from some Obama administration officials that Holder asked to do so.
(Also on POLITICO: Report: Holder said no 'BS' on guns)

Issa also said the House had to take such a move in order to get to the bottom of the Fast
and Furious scandal.
"Throughout this process, I have reiterated my desire to reach a settlement that would
allow us to cancel today's vote," Issa said. "Our purpose has never been to hold the
Attorney General in contempt. Our purpose has always been to get the information that
the Committee needs to complete its work, and to which it is entitled."
Issa also pointed out that then Speaker Nancy Pelosi (D-Calif.) backed a call for a
contempt resolution against the Bush White House over the firing of U.S. attorneys back in
2008, which he raised to counter Democratic charges of partisanship.
The practical, immediate impact of the contempt votes will be minimal. Holder remains as
attorney general with strong backing from Obama, and any criminal referral after the
contempt vote is unlikely to go far.
In a floor speech before the vote, Boehner stressed that Holder and the Justice
Department needed to be held accountable for not providing sufficient answers to
Congress about what happened during Fast and Furious.
"Now, I don't take this matter lightly. I frankly hoped it would never come to this," Boehner
said . "But no Justice Department is above the law and no Justice Department is above the
Constitution, which each of us has sworn to uphold."
( Also on POLITICO: Brown: Eric Holder should resign)

But the GOP-led move infuriated other Democrats, especially minority lawmakers, who
see racism and unbridled partisanship in the Republican drive to sanction the first AfricanAmerican to hold the attorney general post in U.S. history.

Exhibit A, Pg. 234
12/7/2013
http://dyn.politico.com/printstory .cfm?uuid=EE3F7BOA-6740-499F-8836-47489F9B7A17

Attorney General Eric Holder held in contempt of Congress - POLITICO.com Print View

Page 3 of 4

The Democratic walkout was led by the Congressional Black Caucus, many of whom
gathered outside the Capitol while their GOP colleagues moved against Holder.
Rep. Elijah Cummings (Md.), the top Democrat on the Oversight and Government Reform,
charged that Republicans, led Issa, had been unfairly targeting Holder for months.
''They are finally about to get the prize they have been seeking for more than a year holding the attorney general of the United States in contempt," Cummings said . "In reality ,
it is a sad failure. A failure of leadership, a failure of our constitutional obligations and
failure of our responsibilities to the American people."
Rep. Gerald Connolly (D-Va.), who serves on the Oversight panel, called the vote "a
craven , crass partisan move that brings dishonor to this body."
A procedural motion by Rep. John Dingell (D-Mich.), calling for further investigation before
any contempt vote, was defeated by Republicans.
During the floor debate, a group of nine black lawmakers, led by Rep. Sheila Jackson Lee
(D-Texas), raised a question of the privileges of the House, accusing Issa of interfering
with the investigation and withholding critical information from Democrats. The motion
disapproved of Issa for "interfering with ongoing criminal investigations, insisting on a
personal attack against the attorney general of the United States and for calling the
attorney general of the United States a liar on national television," which "discredit[ed] ...
the integrity of the House." The motion was not allowed to proceed .
For his part, Issa insisted that the House must act in order to get to the bottom of what
happened in the botched Fast and Furious program.
During this under cover operation, federal agents tracked the sale of roughly 2,000
weapons to straw buyers working for Mexican drug cartels. The sting operation failed, and
weapons related to the Fast and Furious program were found at the shooting scene when
a Border Patrol agent was killed in Dec. 2010.
Relying on what they said was inaccurate information supplied by the Bureau of Alcohol,
Tobacco, Firearms and Explosives - which comes under DOJ - senior Justice officials told
lawmakers in Feb. 2011 that no guns were allowed to "walk" to Mexico. That letter was
later withdrawn by the Justice Department as inaccurate.
Issa has been investigating what happened during Fast and Furious for 16 months, and
he subpoenaed the Justice Department last October. Since that time, his panel has been
squabbling over what documents will be turned over. Justice officials note that 7,600
pages of Fast and Furious material has already been given to Issa, but the California
Republican has demanded more.
Obama asserted executive privilege on some of the documents Issa is seeking shortly
before the Oversight and Government voted on party lines to approve a contempt
resolution against Holder.
Despite a face-to-face session between Issa and Holder recently, the two men never
reached a compromise to end the standoff.
Since the Justice Department would have to seek an indictment of Holder - a department
he oversees as attorney general - no criminal charges will be brought against him.
Previous administrations, including the Bush administration in 2008, refused to seek
criminal charges against White House officials when a Democratic-run House passed a
criminal contempt resolution over the firing of U.S. attorneys.

Exhibit A, Pg. 235
12/7/2013
http://dyn.politico.com/printstory.cfm?uuid=EE3F7BOA-6740-499F-8836-47489F9B7A17

Attorney General Eric Holder held in contempt of Congress - POLITICO.com Print View

Page 4 of 4

Boehner's office, though, is expected to submit a criminal referral to the U.S. attorney for
the District of Columbia, Ronald Machen, in the next few days, according to a Republican
official.
lssa's aides have already begun discussions with the House General Counsel's office
over the anticipated lawsuit against DOJ, but it is not clear when that the legal challenge
will be filed .
© 2013 POLITICO LLC

Exhibit A, Pg. 236
12/7/2013
http://dyn.politico.com/printstory.cfm?uuid=EE3F7BOA-6740-499F-8836-47489F9B7Al 7

Exhibit 8
(Testimony of Gary Schaible)

Exhibit A, Pg. 237

364
CR-10-01047 - PHX- ROS(DKD}, November 29, 2012
1

UNITED STATES DISTRICT COURT

2

FOR THB DISTRICT OF ARIZONA

3

4

United States of America ,
5

Plaintiff,
6

vs.

7

Randolph Benjamin Rodman and Idan
c. Greenberg,

CR-10-01047-PHX-ROS(DKD}
8

De fendants.
November 29, 2012
8:46 a.m.

9

10
11

12
BBFORB:

THB HONORABLE ROSLYN O. SILVER, CHIEF JUDGE

13
RBPORTBR'S TRANSCRIPT OF PROCBBDINGS

14
15

Jury Trial - Day 3

16

(Pages 364 through 587)

17
18
19
20
21

Official Court Reporter:
Blaine Cropper, RDR, CRR, CCP

22
23

Sandra Day O'Connor U.S. Courthouse, Suite 312
401 West Washington Street, Spc. 35
Phoenix, Arizona 85003 - 2151
602.322.7245/(fax) 602.322.7253

24
25

Proceedings Reported by Stenographic Court Reporter
Transcript Prepared by Computer-Aided Transcription
United States District Court

Exhibit A, Pg. 238

365
CR - 10-01047-PHX-ROS(DKD), November 29, 2012
N D B X

1

I

2

TBSTIMONY

3

WITNBSS

Direct

Cross

Redirect

GARY SCHAIBLE

370

388
414

422

DANIEL PINCKNEY

444

455
477

482

KENDRA TATE

486

493
496

504

JASON FRUSHOUR

511

519

RALPH FOX

523

532

538

SCOTT H. COLE

540

550

552

JOHN BROWN

4

Recross

554

443

5
6
7

8
9

10
11

12
13

E X H I B I T S

14

Number

Ident Rec ' d

15

3

86-0012729 model 1919 machine gun

542

16

5

86-0013454 model 1919 machine gun

524

17

19

A6042075 model 1919 machine gun-PICTURE
ONLY

558

23

820101086 model 1919 machine gun

569

31

820101592 model 1919 machine gun

569

42

Blue ribbon certification for 86-0012726

385

48

Blue ribbon certification for A6041868

405

49

Blue ribbon certification for A6041869

404

53

Blue ribbon certification for A6042000

406

54

Blue ribbon certification for A6042001

408

55

Blue ribbon certification for A6042026

408

18
19
20
21
22
23
24
25
United States District Court

Exhibit A, Pg. 239

370

GARY SCHAIBLE - Direct
1

PROCEEDINGS

2

(Jury enters.)

3

(Court was called to order by the courtroom deputy.)

4

(Proceedings begin at 8:46.)

5

THE COURT :

Please be seated.

6

Good morning.

7

All right.

8

MR. VANN:

08:46:25

We're ready to go.

Counsel , ready?
Yes, Your Honor.

Gary Schaible .

GARY SCHAIBLE,

9

10

called as a witness herein by the Government, having been first

11

duly sworn or affirmed to testify to the truth, was examined

12

and testified as follows:
COURTROOM DEPUTY :

13

14

State your name for the record,

spell your last name, please .

15

16

08:47:00

THE WITNESS:

My name is Gary Schaible .

08:47:08

S - C-H - A-I-B - L- E.

17

COURTROOM DEPUTY:

18

Great.

Have a seat right up here .

DIRECT EXAMINATION

19

BY MR. VANN:

20

Q.

Good morning, Mr. Schaible.

21

A.

Good morning.

22

Q.

Can you please tell the jury what it is that you do?

23

A.

I'm well, I'm assigned to the firearms and explosives

24

division in bureau headquarters of Bureau of Alcohol, Tobacco,

25

Firearms & Explosives and most of my time is spent in the NFA

08:47:42

08:47:58

United States District Court

Exhibit A, Pg. 240

371
GARY SCHAIBLE - Direct
1

branch, which is part of this division, and I would write

2

letters, do rule-makings, provide -- well, not technical but

3

interpretations of the statutory requirements of the National

4

Firearms Act, occasionally process forms.

5

the record, make sure it's maintained.

6

Q.

And how long have you been employed at ATF?

7

A.

40 years.

8

Q.

40 years?

9

A.

Yes.

10

Q.

And in that 40 years, where was the majority of your time

11

spent?

12

A.

In the National Firearms Act branch.

13

Q.

What positions have you held in the National Firearms Act

14

branch?

15

A.

16

branch chief and a program manager which was retitled to

17

pre-liaison analyst.

18

Q.

19

job and of some the things related to this case, do you know

20

either of the defendants sitting here today?

21

A.

I know Mr. Rodman.

22

Q.

You do know Mr. Rodman?

23

A.

Yes.

24

Q.

Please explain your relationship with Mr. Rodman to the

2s

j ury .

I ' m a custodian of

I have been a supervisor coordinator.

All right.

08:48:02

08:48:19

I have been the

~~8 :V

08:48:36

Now, before we get into the details of your

08:48:57

08:49:09

United States District Court

Exhibit A, Pg. 241

396

GARY SCHAIBLE - Cross
1

A.

Yes.

2

Q.

Oh.

3

that you wrote or the referral that you wrote indicated that

4

one of the guns was in the possession of a licensed SOT in

5

Virginia, John Brown?

6

A.

7

sent to the field, yes.

8

Q.

9

information that you received; right?

09:38:48
Okay.

I am mistaken.

The memo that -- the letter

09:39:04

That I believe is correct as far as the referral memo we

Correct.

And the basis of that referral memo was the
And that's what I'm

10

asking about.

11

A.

Well, again, it started with what was on the Internet.

12

Q.

Yes.

13

A.

But we didn't receive any other information .

14

Q.

But you wrote a letter with that fact in it when you wrote

15

the letter to - -

16

A.

Right.

17

Q.

Pardon?

18

A.

I interrupted there.

19

Q.

The memo that you wrote, you personally wrote a memo for

20

the signature of the Deputy Assistant Director to Phoenix;

21

correct?

22

A.

Correct.

23

Q.

And in that letter, you stated that a licensed SOT in

24

Virginia was in possession of one of the Clark firearms, did

25

you not?

09:39:19

09:39:36

I'm sorry.

I interrupted you there.

I'm sorry.

I'm sorry.

09:39:53

09:40:14
United States District Court

Exhibit A, Pg. 242

397
GARY SCHAIBLE - Cross
1

A.

That was part of the information, correct.

2

Q.

Okay.

3

A.

Okay.

4

Q.

Now, Virginia is in the jurisdiction of the special agents

5

in the Falls Church office; correct?

6

A.

Correct.

7

Q.

And did you make a referral to that off ice?

8

A.

No.

9

Q.

Do you know if anyone did?

10

A.

I would have to guess yes but I don ' t know.

11

Q.

Well, you do know that you were involved in the

12

abandonment of one of the firearms in November; correct?

13

A.

Yes.

14

to.

You're referring to November 2006.

15

Q.

Correct.

16

A.

Yes.

17

Q.

And you were present when a special agent from the Falls

18

Church office accepted abandonment of one machine gun,

19

A6042075; correct?

20

A.

21

abandonment .

22

Q.

Right .

23

A.

I know the agent was there, Doug Quartetti, someone from

24

Firearms Tech.

25

Q.

09:40:15

Well, that's what I asked about .

09:40:26

09:40:38

I ' m not sure of the date exactly you're referring

But you have personal recollection of that?

09:40:58

I was there.

I don't know the number but I was there for the

09:41:16

And who else was there, if you recall?

I'm not quite sure who.

The agent, Doug Quartetti , where was he assigned?

09:41:33

United States District Court

Exhibit A, Pg. 243

398

GARY SCHAIBLE - Cross
1

A.

Falls Church.

2

Q.

All right.

3

involved in the investigation?

4

A.

No.

5

Q.

Now, moving on to another subject, I 'm going to go through

6

a number of the certificates, Mr. Schaible, and I'll move as

7

fast as I can.

09:41:37

And do you have any knowledge of how he became

There ' s a lot of them there.

Let's take number 60.

8

09:41:51

Do you have that?

9

A.

Yes.

10

Q.

Just a cursory review.

11

A.

Yes.

12

Q.

And what do you call that in the jargon of ATF, blue

13

ribbon certificate?

14

A.

A blue ribbon certificate, yes.

15

Q.

That's a common name.

16

A.

Yes.

17

Q.

Would you explain to the members of the jury what a blue

18

ribbon certificate is?

19

A.

20

of the registry, the National Firearms Registration Transfer

21

Record, and report the results where they would, you know , say

22

that after a diligent search of the record, this is what I

23

found or didn't find, would sign off on it.

24

to the branch chief who would sign off on the blue cover sheet

25

saying that they basically recognize the specialist's signature

You've seen what that is?

09:42:37

09:4 2:49

This is where someone in the NFA branch would do a search
09:43:01

It would go, then,

09:43:24

United States District Court

Exhibit A, Pg. 244

399

GARY SCHAIBLE - Cross
1

in this case.

2

Q.

3

within that packet is what ' s in the official record, the NFRTR;

4

right?

5

A.

Correct.

6

Q.

Okay now,

7

something called a screen shot.

8

A.

Right.

9

Q.

And would you describe what that is?

10

A.

For each firearm in the registry, we maintain basically a

11

transaction history starting with the first registration and

12

basically moving up.

13

current time would appear on the top of the list and we do some

14

color coding in there, that if it's a magenta color, as far as

15

the database goes, that identifies the current registrant.

16

Q.

17

machine gun is described.

18

A.

Correct.

19

Q.

And the descriptive data, the manufacturer,

20

firearm,

21

overall length are all described on the top line; correct?

22

A.

Correct.

23

Q.

And that is the same information that appears on the Forms

24

3 and Forms 4?

25

A.

09:43:28

In a few sentences, that is a certificate that everything

09:43:47

if you'll go to the first few pages,

there is

09:44:01

So whoever it's registered to at the

09:44:23

And you -- in the top there, the serial number of the

the type of

the model, the caliber, the barrel length and the

Right.

09:44:43

09:45:03

United States District Court

Exhibit A, Pg. 245

400
GARY SCHAIBLE - Cross
1

Q.

Those are the six items of information; correct?

2

A.

Correct.

3

Q.

So that when -- this is a snapshot of the computer as it

4

exists on the date that is in the upper right-hand corner?

5

A.

I don't have a date in the upper right - hand corner.

6

Q.

On the screen shot, you don ' t have a date and time?

7

A.

No, not on the screen shot, no.

8

Q.

All right.

9

that date would be the effective date that this thing was

09:45:03

09:45:23

But since it's in the blue ribbon certificate,

10

prepared.

This is a shot of the computer as it appeared on

11

that date?

12

A.

Correct .

13

Q.

Now,

14

A.

Yes.

15

Q.

The description is manufacturer, MIX; type; model.

16

that.

17

five seven five,

18

A.

M'hum.

19

Q.

And the overall length of the barrel is 11 inches;

20

correct?

21

A.

Correct.

22

Q.

Now,

23

went from Clark to my client, Mr. Rodman, for this machine gun.

24

A.

Okay.

25

Q.

How is the caliber barrel length and overall length --

09:45:50

if you'll look at -- do you have number 60?

And the caliber is 9 millimeter.

That's

09:46:03

The barrel length is

5.75 inches?

09:46:31

if you would move down the forms to the form that

09:46:58

united States District Court

Exhibit A, Pg. 246

401

GARY SCHAIBLE - Cross
1

what appears on the form?

2

A.

3

and an overall length of 41.

4

Q.

5

is inaccurate; correct?

6

A.

They differ, correct.

7

Q.

Right.

09:47:05

On the form it shows .30 caliber.

The barrel length of 24

So each of those in the screen shot, the actual database
09:47:21

8

And when the -- the person that approved it at that

9

time, the examiner, the people that work for you are supposed

10

to correct the record in the NFRTR to conform to the form if

11

it's approved; right?

12

A.

If what was shown on the form is correct, then yes.

13

Q.

Well, if it's approved, that ' s what was approved; right?

14

A.

That's what was approved.

15

error is a different matter.

16

Q.

Is it signed as approved?

17

A.

Yes.

18

Q.

So that the person who received this form received a form

19

that is different than the description in the database?

20

A.

Correct.

21

Q.

Okay.

22

have 64?

23

A.

Yes.

24

Q.

Would you read the description on the screen shot, just

25

the caliber, barrel length, overall length?

09:47:37

Whether it was picked up as an
09:48:04

09:48:21

And now if you ' ll move to the number 64.

Do you

09:49:02

United States District Court

Exhibit A, Pg. 247

402
GARY SCHAIBLE - Cross
1

A.

Caliber,

2

Q.

And now on the Form 3 that came from Clark to Mr. Rodman,

3

for that machine gun.

4

A.

This is from Clark to Mr. Rodman you said?

5

Q.

Yes.

6

A.

Okay.

7

length of 41.

8

Q.

9

feet approximately; correct?

.45; barrel length 6.25; overall length, 11.

09:49:05

Caliber, barrel length, overall length.

09:49:35

It shows .30 caliber; barre l l ength of 24; overall

The variants in barrel length and overall length of three

10

A.

Yes.

The overall length of 41.

11

Q.

And once again, whoever approved that was supposed to

12

change the description in the database and did not; correct?

13

A.

14

that we should look into.

15

Q.

16

that it was approved?

17

A.

September 21, 2000.

18

Q.

And in 12 years nobody looked into it; correct?

19

A.

As far as I know.

20

Q.

Okay.

21

I'm sorry.

22

A.

I have 64.

23

Q.

57, yes.

24

A.

Okay.

25

Q.

And to save a l ittle time, would the same discrepancies

Correct.

09:50:03

If they subpoenaed that, there was something

It would be something to look into.

Number 58.

What was the date

I think that was the one you had.

09:50:26

57,

09:50:40

Number 57.

09:51:03

united States District Court

Exhibit A, Pg. 248

403
GARY SCHAIBLE - Cross
1

appear in that one?

2

A.

A6042028.

3

Q.

And what does the screen shot, the actual computer, say?

4

A.

9 millimeter, 5.75 barrel length, 11-inch overall length.

5

Q.

Okay.

6

A.

I am getting there.

7

barrel length of 22 inches and an overa l l

8

Q.

9

machine gun is concerned as of today, as of the date of the

For instance, what is the serial number?

So the same discrepancies appear in that one.
Yes.

09:51:09

09:51:32

The form shows .30 caliber, a
length of 49.

So that this, the computer, is inaccurate as far as this

10

blue ribbon certificate?

11

A.

Again, they differ .

12

Q.

And the person that has the -- that it ' s registered to has

13

a different gun than the one that's described in the database;

14

correct?

15

A.

Different caliber, barrel length, and overall length, yes.

16

Q.

And the next one is 56.

17

could view the same data, compare the screen shot with the

18

transfer itself and tell me if the screen shot is accurate,

19

whether the computer is accurate.

20

A.

21

Mr. Rodman?

22

Q.

Yes.

23

A.

A6042027 and, yes, our database shows 9 mill i meter with a

24

5.75 barre l length and an 11-inch overall length.

25

shows .30 caliber with a 22-inch barrel length and a 49 - inch

09:52:17

The descriptions, yes.

09:52:35

To save a little time, if you

And this would be for the transfer from Mr. Clark to

09:53:13

This is serial number -- what?

The form
09:53:34

United States District Court

Exhibit A, Pg. 249

404
GARY SCHAIBLE - Cross
1

overall length.

2

Q.

A

3

A.

Correct .

4

Q.

Inaccurate?

5

A.

I ' m sorry?

6

Q.

Inaccurate.

7

A.

Or the form is inaccurate.

8

Q.

Well, the form is approved.

9

A.

Yes.

10

Q.

So the database shows a different description than what's

11

in the database?

12

A.

And, again, should this have been picked up on?

13

Q.

When was that approved, that form?

14

A.

June 1, 2002.

15

Q.

Two thousand and

16

A.

Two.

17

Q.

so in 10 years nobody has picked that up?

18

A.

Correct.

19

Q.

Now, the next one is number 49, Mr. Schaible, the number?

20

A.

A6041869 .

21

Q.

And the description on the form transferring it to

22

Mr. Rodman?

23

A.

24

overall length of 41.

25

Q.

09:53:39

different description; correct?

09:53:43

The database is inaccurate?

09:53:51

Maybe so.

09:54:12

.?

09:54:42

On the form it shows .30 caliber, barrel length of 24,

So the database is inaccurate on this firearm?

09:55:16

United States District Court

Exhibit A, Pg. 250

405
GARY SCHAIBLE - Cross
1

A.

Again, they differ.

2

Q.

And what's the date of the transfer?

3

A.

February 21, 2001.

4

Q.

So that hadn ' t been picked up in 11 years?

5

A.

Correct.

6

Q.

And the next one is number 48.

7

A.

Okay.

8

Q.

serial number?

9

A.

A6041868.

10

Q.

The description in the screen shot, the database?

11

A.

Shows .45 caliber, 5.75 barrel and 11 overall.

12

Q.

And the form transferring it from Clark to my client?

13

A.

. 30 caliber, 24-inch barrel length, 41-inch overall.

14

Q.

Okay.

15

A.

It's different.

16

Q.

And the next one is number 69.

17

A.

Okay.

18

Q.

Serial number?

19

A.

820101457.

20

Q.

And description?

21

A.

In the database, it ' s a .45 caliber, the barrel length of

22

6.25 and overall length of 11.

23

Q.

And the form transferring it from Clark to Mr . Rodman?

24

A.

Shows a caliber of .30, a barrel length of 22, and an

25

overall of 36.

The database shows .45, 5.75, and 11.

09:55:20

09:55:36

09:56:12

The computer, once again, is inaccurate?
09:56:37

09:57:10

09:57:27

United States District Court

Exhibit A, Pg. 251

406
GARY SCHAIBLE - Cross
1

Q.

Okay.

2

A.

February 20, 2008.

3

Q.

4

gun?

5

A.

Different.

6

Q.

And the final one for Mr. Rodman is number 68.

7

A.

Okay.

8

Q.

The serial number?

9

A.

820101546.

10

Q.

And the description in the database?

11

A.

.45 caliber, 6.25 barrel length, 11 - inch overall.

12

Q.

All right.

13

gun on the transfer form from Clark to my client?

14

A.

15

overall.

16

Q.

17

other; right?

18

A.

19

2008.

20

Q.

21

more.

22

A.

Shows a difference in description, yes.

23

Q.

We're nearing the end.

24

that.

25

And the date of the transfer?

Okay.

09:57:28

So the database is inaccurate for that machine

09:57:46

09:58:27

And what is the description of that machine

It is .30 caliber, 22-inch barrel length, and 36-inch

Okay.

09:58:48

And the date of that transfer is the same as the

I don't remember what the other one is.

February 20, correct .

February 20,

And the database is inaccurate once

09:58:57

That is a different machine gun?

I ' m sure you'll be happy to hear

The next one is number 53.

09:59:13

United States District Court

Exhibit A, Pg. 252

407
GARY SCHAIBLE - Cross
1

A.

Okay.

2

Q.

This is a serial number -- what is the serial number?

3

A.

A6042000.

4

Q.

And the description of the machine gun as it appears in

5

the database?

6

A.

7

overall.

8

Q.

9

transferee on that one?

09:59:37

09:59:55

.45 caliber, 5.5 -- I'm sorry, 5.75 barrel length, 11-inch

And the transfer form from Clark to -- who was the

10

A.

I ' m sorry.

Could you ask me that again?

11

Q.

The Form 3 transferring it from Clark, who is the

12

transferee?

13

A.

14

nothing

15

Q.

16

A.

17

Q.

18

transferred to Mr. Clark?

19

A.

Okay.

20

Q.

It's not a

21

A.

It's shown as an any other weapon.

22

Q.

Oh.

23

A.

No.

24

Q.

Okay .

25

A.

Descriptions differ between a form and a database, yes.

10:00:15

From Mr. Clark, I show a transfer to Mr. Clark but

It was never transferred?

10:00:58

nothing transferred from Mr. Clark.
What is the description of the machine gun that was

It's not shown as a machine gun.

Okay .

10:01:10

And does the description match?

So that one is inaccurate?
10:01:25

United States District Court

Exhibit A, Pg. 253

408
GA.RY SCHAIBLE - Cross
1

Q.

2

registration form?

3

A.

Right.

4

Q.

Number 54, what's the serial number of that one?

5

A.

I'm sorry, 54 or 64.

6

Q.

54.

7

A.

Okay.

8

Q.

All right.

9

the computer?

The database does not match the description of the

10:01:30

10:01:45

Five four.
That's A6042001.
And what is the -- how is that described in

10

A.

.45 caliber, 5.75 barrel length, 11 overall.

11

Q.

And how is that same machine gun described on the form

12

transferring it from Mr. Clark to a Richard Simpson?

13

A.

14

of 24 inches and an overall length of 40.

15

Q.

And what's the date of that transfer?

16

A.

October 2, 2003.

17

Q.

All right.

18

has an inaccurate description.

19

A.

It has a different description, yes.

20

Q.

Okay.

21

A.

Okay.

22

Q.

What serial number is that?

23

A.

It is A6042026.

24

Q.

And the description in the computer, in the NFRTR?

25

A.

Shows 9 millimeter, 5.75 barrel length, and an 11 - inch

Okay.

10:02:21

It is shown as a .30 caliber with a barrel length

And so that one is inaccurate.

10:02:50

The computer

Number 55.

10:03:05

10:03:40

United States District Court

Exhibit A, Pg. 254

409

GARY SCHAIBLE - Cross
1

overall length.

2

Q.

3

number was transferred from Clark to Richard Simpson.

4

have the Form 3 there -- Form 4, I'm sorry.

5

A.

Yes, sir.

6

Q.

And how is that machine gun described there?

7

A.

.30 caliber, 23-inch barrel, 45-inch overall.

8

Q.

And so the -- once again, the database is inaccurate?

9

A.

It is different, yes.

10

Q.

Is it accurate?

11

A.

We ll, the 9 millimeter, 5.75, and 11 were what was

12

reported upon manufacture

13

Q.

14

Sometime before ' 86?

15

A.

Right .

16

Q.

Okay.

17

that?

18

A.

Yes, it has.

19

Q.

And anytime the description changes and is approved, the

20

database must be corrected; correct?

21

A.

If the examiner picks up on it and sees a difference, yes.

22

Q.

That's what the examiner is supposed to do?

23

A.

Correct.

24

Q.

All right.

25

10:03:46

Now, that machine gun or machine gun with that serial
Do you

10:04:00

10:04:20

I

would believe?

That would be on the Form 2 from the date of birth.

10:04:37

And it had been transferred a number of times after

Now, the next one is number 59.

10:04:50

10:05:05

united States District Court

Exhibit A, Pg. 255

410
GARY SCHAIBLE - Cross
1

A.

Okay.

2

Q.

What is the serial number of that, Mr. Schaible?

3

A.

A6042030.

4

Q.

All right.

5

description of that machine gun?

6

A.

9 millimeter, 5.75 inch barrel, 11 overall.

7

Q.

All right.

8

serial number was transferred from Mr. Clark to Richard

9

Simpson, correct, on the Form 4?

10:05:27

And what does the computer say is the
10:05:40

And that machine gun or machine gun with that

10

A.

Correct.

11

Q.

And what is the date of that transfer?

12

A.

March 24, 2003.

13

Q.

All right.

14

form?

15

A.

.45 caliber, 10-inch barrel, 33-inch overall.

16

Q.

Correct.

17

A.

It is different, yes, sir.

18

Q.

The next-to - the - last one is number 63.

19

A.

Okay.

20

Q.

Serial number is what?

21

A.

A6044921 (sic) .

22

Q.

And what's the description of that machine gun in the

23

database?

24

A.

It's a

25

Q.

And that machine gun was transferred on a Form 4 from

10:05:57

And how is that machine gun described on the

10:06:07

Once again, the database is inaccurate.

10:06:51

.45 caliber, 5.75 barrel, and 11-inch overall.
10:07:11

United States District Court

Exhibit A, Pg. 256

411
GARY SCHAIBLE - Cross
1

Clark to Richard Simpson on what date?

2

A.

October 2, 2003.

3

Q.

And what is the descr iption?

4

A.

On the form that

5

Q.

On the form.

6

A.

It shows .30 caliber, 19-inch barrel, 41-inch overall.

7

Q.

And so, once again, we have an inaccurate description in

8

the database.

9

A.

A different one, yes, sir.

10

Q.

Okay.

11

Exhibit 71.

12

A.

Okay.

13

Q.

What's the serial number on that one?

14

A.

It is 820101589.

15

Q.

And the description in the database?

16

A.

.45 caliber, 11-inch barrel, 6.25 overall.

17

Q.

And that machine gun was transferred from Clark to a

18

Richard Simpson on what date on the Form 3 - - Form 4, I'm

19

sorry.

20

A.

March 22, 2005.

21

Q.

And the description?

22

A.

.30 caliber, 21.5-inch barrel, 49.5 - inch overall.

23

Q.

So that, once again, the database is inaccurate?

24

A.

Yes, sir, there ' s a difference between the descriptions.

25

Q.

All right.

10:07:16

10:07:33

And the final one is serial number - - or number 71,

10 :07:50

10:08:29

10:08:52

And the certificate that we talked about, the

10:09:15

united States District Court

Exhibit A, Pg. 257

412
GARY SCHAIBLE - Cross
1

blue ribbon certificate, that form is used in criminal cases

2

all over the country to prove the registration of -- the

3

registration or non - registration of a machine gun; correct?

4

A.

5

database, yes.

6

Q.

7

the machine gun in question matches the description in the

8

database, that firearm would be declared nonregistered; right?

9

A.

Could you ask me that one again?

10

Q.

Yes.

11

evidence in criminal cases all over the country all the time of

12

the registration, non-registration of a machine gun; correct?

13

A.

Correct .

14

Q.

And if it does not match the description in the database,

15

it's declared nonregistered; right?

16

A.

17

the following firearm is registered to Richard Alan Simpson and

18

it gives that machine gun.

19

Q.

They certified to the truth of the matter; correct?

20

A.

Certified that it's registered to Mr. Simpson.

21

Q.

Now, in view of this sampling that we've just gone

22

through, would you be surprised to learn that all 34 of the

23

firearms that Mr. Clark transferred,

24

inaccurate?

25

A.

10:09:22

It would be the certified results of a search of the
10:09:41

In other words,

that's evidence that that -- that unless

I'm sorry.

The blue ribbon certificate is evidence, provides

10:10:07

10:10:28

Well, in this case, the certificate says I certified that

10:10:45

the database is

Would that surprise you?

Well, again, I would say there's differences in what the

10:11:08

United States District Court

Exhibit A, Pg. 258

413
GARY SCHAIBLE - Cross
1

description is .

2

Q.

3

wouldn't it?

4

A.

5

inaccurate -- we're relying on what's submitted on the form to

6

transfer these firearms.

7

someone who says under the penalties of perjury, I declare that

8

I've examined this application to the best of my knowledge and

9

believe that it is true, correct, and complete.

10:11:12

Well, a difference in a description would be inaccurate,

And the form is part of that process.

If the form is
10:11:23

And the form is being filed by

So somewhere

10

along the line if a description changed, someone was saying

11

under penalties of perjury that, you know,

12

description.

13

Q.

14

describe the caliber and the barrel length and the overall

15

length accurately on the form?

16

A.

When you say "he," who do you mean?

17

Q.

Oh.

18

each one of those.

19

A.

Well , he ' s filing it under penalties of perjury.

20

Q.

In fact, you've had them in custody since 2008

21

approximately.

22

descriptions were inaccurate?

23

A.

this is the

Well, do you have any basis to believe that he did not

The transferor, Clark .

10:12:03

Clark was the transferor in

10:12:21

Has anyone told you that any of those

No .

24
2s

10:11:44

MR. SANDERS:

I have no further questions , Your

Honor .

10:12:36

United States District Court

Exhibit A, Pg. 259

414
GARY SCHAIBLE - Cross
THE COURT:

1

2

Cross?

Mr. Tate.

10:12:37

CROSS - EXAMINATION

3

BY MR. TATE:

4

Q.

Good morning, Mr. Schaible.

5

A.

My voice is going.

6

Q.

I

How are you, sir?
10:12:54

understand.

7

Mr. Schaible, you ' ve been with ATF in various jobs

8

for about 40 years; correct?

9

A.

Correct.

10

Q.

And in that time, let ' s focus first on a period of time

11

about 2006; okay?

12

was your job in 2006?

13

A.

14

my title was either program manager or industry liaison for the

15

NFA branch.

16

Q.

17

let ' s see if we can put some kind of timeline, although

18

that ' s about six years ago.

19

memo; correct?

20

A.

I ' m sorry, what memo is that?

21

Q.

The memo from Theresa Fickaretta?

22

Theresa Fickaretta memo?

23

A.

I

24

Q.

Okay.

25

Let's focus on that period of time.

10:13:10

What

It would have been -- I forget when my title changed but

Okay.

10:13:33

And at that time, sometime during that period,
I

know

You became aware of the Fickaretta

Would that be fair to say?
10:13:50

You're not aware of the

have no idea which one you're referring to.
All right.

That's okay.

You just told me no.

And at that time in 2006, you were made aware of by

10:14:02

United States District Court

Exhibit A, Pg. 260

Exhibit 9
( Feinstein: Congress Shouldn’t Pass the Buck
on Bump-Fire Stocks )

Exhibit A, Pg. 261

RELATED LINKS
Press Releases
Commentary
Feinstein in the News
Official Photo

Fei.nstei.n: Con9ress Shouldn't Pass the Buck on Bump-Fi.re
Stocks

Video Library

Oct 112017

Washingtan - ln response to comments by Speaker Paul Ryan (R-Wis.) saying that the Bureau of Alcohol ,
Tobacco and Firearms should address bump-fire stocks, Ranking Member of the Senate Judiciary Committee
Dianne Feinstein (D-Calif.) today released the following statement:
"The ATF lacks authority under the law to ban bump-fire stocks. Period. The agency made this crystal clear
in a 2013 letter to Congress, writing that 'stocks of this type are not subject to the provisions of federal
firearms statutes.' Legislation is the only answer and Congress shouldn't attempt to pass the buck.''
###

Exhibit A, Pg. 262

Exhibit 10
(ATF Determinations)

Exhibit A, Pg. 263

U.S. Department of Justice
Bureau of Alcohol, Tobacco,
Firearms and Explosives

Martinsburg, West Virginia 25405

903050:MMK
3311/2010-434

www.atf.gov

JUN 0 7 2010

This is in reierence to y0ur submission and accompanying letter to the Fiream1s Technology
Branch (FTB), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), asking for an
evaluation of a replacement shoulder stock for an AR-15 type rifle. Your letter advises that the
stock (referenced in this reply as a "bump-stock") is intended to assist persons whose hands have
limited mobility to "bump-fire" an AR-15 type rifle. Your submission includes the following: a
block to replace the pistol grip while providing retention for the selector stop spring; a hollow
shoulder stock intended to be installed over the rear of an AR-15 fitting with a sliding-stock type
buffer-tube assembly; and a set of assembly instrnctions.
The FTB evaluation confirmed that the submitted stock (see enclosed photos) does attach to the
rear of an AR-15 type rifle which has been fitted with a sliding shoulder-stock type buffer-tube
assembly. The stock has no automatically functioning mechanical parts or springs and performs
no automatic mechanical function when installed. In order to use the installed device, the
shooter must apply constant forward pressure with the non-shooting hand and constant rearward
pressure with the shooting hand. Accordingly, we find that the "bump-stock" is a firearm part
and is not regulated as a firearm under Gun Control Act or the National Firearms Act.
Per your telephoned instructions, we will contact. you separately to make return delivery
arrangements.
We thank you for your inquiry and trust that the foregoing has been responsive.
Since el)' yours

// ,
---;. ,'

,~

~
· )~

k
-

'

.

~1

5ohn R . Spencer
C ~~Firearms Technology Branch
1

Enclosure

Exhibit A, Pg. 264

/

U.S. Department of Justice
Bureau of Alcohol. Tobacco.
Firearms and Explosives

\lart1mb11111 .

JI hr I 1f)llfllt1 l5405

903050:MRC
3311/2012-196

wwwa1I ge,)\

APR 0 2 2012

This is in reference to your correspondence to the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF), Firearms Technology Branch (FTB), requesting FTB to evaluate an
accompanying stock and determine if its design would violate any Federal statutes.
As background information, the National Firearms Act (NFA), 26 U.S.C. Section 5845(b),
defines " machinegun" as-

" ... any weapon which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, wilhout manual reloading, by a single function ofthe trigger.

The term shall also include the frame or receiver of any such ll'eapon, a11y part desig11ed a11d
ilrte11ded solely a11d exclusively, or combi11ation ofparts desig11ed a11d i11te11ded,for use i11
co11verti11g a weapon i11to a mac/1i11egu11, and any combination ofparts from which a
machinegun can be assembled ifsuch parts are in the possession or under the control ofa
person."
The FTB evaluation confirmed that you have submitted a plastic shoulder stock designed to
function on an AR-15 type rifle (see enclosed photos). For your stock to function in the manner
intended, it has to be attached to an AR-15 type platform that is assembled with a collapsiblestock receiver extension. Along with the shoulder stock, you have submitted what you have
identified as a "receiver module." This module is a plastic block approximately 1-5/16 inch~s
high, about 1-3/8 inches long, and approximately 7/8-inch wide. Additionally, there are two
extensions, one on each side, that are designed to travel in the two slots configured on the
shoulder stock. The receiver module replaces the AR-15 pistol grip.
Further, the submitted custom shoulder stock incorporates a pistol grip. This grip section has a
cavity for the receiver module to move forward and backward. Additionally, two slots have been
cut for the receiver module extensions to travel in. The upper section of the shoulder stock is
designed to encapsulate the collapsible receiver extension. Further, the custom stock is

Exhibit A, Pg. 265

,/

-2-

designed with a "lock pin." When the handle on the lock pin is facing in the 3- to 9-o'clock
positions, the stock is fixed and will not move; and when the handle on the lock pin is facing in
the 12- to 6-o'clock positions. the stock is movable.
The FTB live-fire testing of the submined device indicates that if, as a shot is fired, an
intermediate amount of pressure is applied to the fore-end with the support hand, the shoulder
stock device will recoil sufficiently rearward to allow the trigger to mechanically reset.
Continued intermediate pressure applied to the fore-end will then push the receiver assembly
forward until the trigger re-contacts the shooter's stationary firing hand finger, allowing a
subsequent shot to be fired. ln this manner, the shooter pulls the firearm forward to fire each
shot, the firing of each shot being accon1plished by a single trigger function. Further. each
subsequent shot depends on the shooter applying the appropriate amount of forward pressure to
the fore-end and timing it to contact the trigger finger on the firing hand, while maintaining
constant pressure on the trigger itself.
Since your device is incapable of initiating an automatic firing cycle that continues until either
the finger is released or the ammunition supply is exhausted, FTB finds that it is not a
machinegun as defined under the NFA, 26 U.S.C. 5845(b), or the Gun Control Act, 18 U.S.C.
921 (a)(23).
Please be advised that our findings are based on the item as submitted. Any changes to its design
features or characteristics will void this c lassification. Further, we caution that the addition of an
accelerator spring or any other non-manual source of energy which allows this device to operate
automatically as described will result in the manufacture of a machinegun as defined in the NF A,
5845(b).
To facilitate the return of your sample, to include the module, please provide FTB with the
appropriate FedEx or similar account information within 60 days ofreceipt of this letter. If their
return is not necessary, please fax FTB at 304-616-430 I with authorization to destroy them on
your behalf.
We thank you for your inquiry and trust the foregoing has been responsive to your evaluation
request.

hn R. Spence
, F' earms Technology Branch
Enclosure

Exhibit A, Pg. 266

U.S. Department of Justice
Bureau of Alcohol, Tobacco,
Firearms and Explosives
Assistant Director
Washington, DC 20226
www.at f.gov

APR ·1 6 2013

The Honorable Ed Perlmutter
U.S. House of Representatives
Washington, DC 20515
Dear Congressman Perlmutter:
This is in response to your letter dated March 5, 2013, to the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) to rescind a previous evaluation letter and to classify all bumpfire stocks (to include specifically the Slide Fire Solutions stock) as machineguns.
As you have indicated, machineguns are defined in the National Firearms Title Act, 26 United
States Code Chapter 53 Section 5845(b). The definition has four distinct parts. The first, as you
point out, states that a machinegun is "any weapon which shoots, is designed to shoot, or can be
readily restored to shoot, automatically more than one shot, without manual reloading, by a
single function of the trigger." The remaining portions of the definition go on to state that: "[t]he
term shall also include the frame or receiver of any such weapon, any part designed and intended
solely and exclusively, or combination of parts designed and intended, for use in converting a
weapon into a machinegun, and any combination of parts from which a machinegun can be
assembled if such parts are in the possession or under the control of a person."
In the course of examining a number of bump-fire stocks, ATF found that none of these devices
could shoot nor did they constitute firearm frames or receivers; therefore, the first portion of the
machinegun definition can not apply. Those bump-fire stocks which were found to convert a
weapon to shoot automatically were classified as machineguns and regulated accordinglymost notably, the Akins Accelerator. Other bump-fire stocks (such as the SlideFire Solutions
stock) that ATF determined to be unable to convert a weapon to shoot automatically were not
classified as machineguns.
Reviewing findings with respect to the Akins and Slide Solutions, ATF, in Ruling 2006-2, found
that the Akins Accelerator incorporated a mechanism to automatically reset and activate the firecontrol components of a firearm following the single input of a user. Thus, the Akins
Accelerator acted to convert a semiautomatic firearm to shoot automatically. Conversely, the
Slide Fire Solutions stock requires continuous multiple inputs by the user for each successive

Exhibit A, Pg. 267

-2-

The Honorable Ed Perlmutter

shot. Similarly, other devices exist, such as the Hellfire Trigger, which attach to and act upon
the trigger of a firearm and also work to increase the rate or volume of fire of the firearm. Like
the Slide Fire Solutions stock, the Hellfire Trigger does not provide an automatic actionrequiring instead continuous multiple inputs by the user for each successive shot.
Public safety is always a primary concern of ATF. We remain committed to the security of our
Nation and the fight against violent crime. However, bump-fire stocks that do not fall within any
of the classifications for firearm contained in Federal law may only be classified as firearms
components. Stocks of this type are not subject to the provisions of Federal firearms statutes.
Therefore, ATF does not have the authority to restrict their lawful possession, use, or transfer.
We hope this information proves helpful in responding to your constituent. Please let me know
if we may be of further assistance.
Sincerely yours,

Richard W. Marianas
Assistant Director
Public and Governmental Affairs

Exhibit A, Pg. 268

Exhibit 11
( Rapid manual trigger manipulation
(Rubber Band Assisted) )

Exhibit A, Pg. 269

Exhibit 12
( AK-47 75 round drum Bumpfire!!! )

Exhibit A, Pg. 270

Exhibit 13
( Bump Fire’ without a bump-fire stock, courtesy of
ThatGunGuy45 )

Exhibit A, Pg. 271

Exhibit 14
( How to bumpfire without bumpfire stock )

Exhibit A, Pg. 272

Exhibit 15
(Declaration of Damien Guedes)

Exhibit A, Pg. 273

VERIFIED DECLARATION OF DAMIEN GUEDES

I, Damien Guedes, am competent to state and declare the following based on my
personal knowledge:
1. I am a resident of Whitehall Pennsylvania.

2. In 2014, I became interested in a bump stock device.
3. Prior to purchasing a Bump Fire Systems bump stock device, as I wanted to
ensure the legality of the device, I went on Bump Fire Systems' website wFlv.bumgfix~system~.~-om

- to determine ifthe Bureau of Alcohol, Tobacco,

Firearms and Explosives had approved the device.
4. Bump Fire Systems' website stated that it had obtained approval from ATF and
provided me with a copy of ATF's April 2, 2012 determination letter. A copy of
the letter is attached as Exhibit 1.
5. In reliance on ATF's determination letter of April 2, 2012, I purchased a Bump
Fire Systems bump stock device at a cost of$99.99, plus $6.00 shipping, which I
still own today. A redacted copy of the receipt is attached as Exhibit 2.
6. It is my understanding, based upon ATF' s notice of proposed rulemaking - RIN
1140-AA52, Fed. Reg. No. 2018-06292-that ATF intends to reclassify bump
stock devices as machine guns in violation of Article 1, Section 9 of the United
States Constitution (i.e. Ex Post Fact clause) and to require me to surrender or
otherwise destroy my Bump Fire Systems bump stock device in the absence of
any compensation, in violation of the Fifth Amendment to the United States
Constitution.

Exhibit A, Pg. 274

I declare under penalty of perjury that the foregoing is true and correct to the best
of my information, knowledge and belief. Executed on April

j_, 2018.

~

Damien Guedes

Exhibit A, Pg. 275

Exhibit 1

Exhibit A, Pg. 276

l '.S. Department of ,Justice
Bwuw of Akohol, ·rooacco.

l-111.:arm;-; and l·.xplosivcs

903050:MRC
3311/2012-196

.APR 0 2 2012.

This is in reference to your correspondt.Ti<.:,; to the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF), Firearms Technol•Jgy Bn:mch 0-''l B), reqw:sting FTB to evaluate an
accompanying stock und detcrmbe if ib (k;;lgn would violate any Federal statutes.
As background information. the N1uion;.:i r in.:·nnn:; i\Cl (Nb\), 26 U.S.C. Section 5845(b),
defines '·machincgun" as~~

" ... any weapon which shoots,

1s

d.::.>i>;ncd io sftoot, or can be readily restored to shoot,

c 1JtUiitafic,1iiy nwn::inan um:sriut, i>'Viihu<d fllll!;mti rduu~ii11g, !:)':,; sirrsh.:fiiri-£ikifi-<~/lhe trigger.

The term shall also include the.frame or n:ccfvf'r of'any such ·weapon, any part designed and
int1mded solely and excl11siveiy, or combination ofparts designed and intended,for use in
co11verting a weapon into a machinegun~ and any combination ofparts from which a
machinegun can be assembled if such part:i an~ in the pos~'iession or under the control ofa
person."
The FTB evaluation confirmed that you h.,1.ve submitted a plastic shoulder stock designed to
function on an AR-15 type ritle (see'enclosed photos). For your stock to function in the manner
intended, it has to be attached to an AR.. 15 type platform that is assembled with a collapsiblestock receiver extension. Along with the shoulder stock, you have submitted what you have
identified as a "receiver module." This module isa: plastic block approximately 1-5/16 inches
high, about 1-3/S inches long, and approximately 7/8-inch wide. Additionally, there are two
extensions, one on each side, that ar+.! designed to travel in the two slots configured on the
shoulder stock. The receiver module replaces the AR-15 pistol grip.

FW'ther, the submitted custom shoulder stock hicorporates a pistol grip. This grip section has a
' oaVi!yfor the receiver moduJe,to'move f.orWS,td~ backwm'd. Additionally, two slots have been
•· · · · &the,~i: ·.
·.. ions t9. ~velin. The upper section of the shoulder .stock is

· · · ··

·

iliii~iii•~emioo.
'··""'''

,,

c

)

~

'

,

•

F.urthet, the custom sfock is

'-

'

Exhibit A, Pg. 277

-2-

designed with a "lock pin." When the handle on the lock pin is facing in the 3- to 9-o'clock
positions, the stock is fixed and will not move; and when the handle on the lock pin is facing in
the 12- to 6-o'clock positions, the stock is movable.
The FTB live-fire testing of the submitted device indicates that if, as a shot is fired, an
imermediate an1ount of pressure is applied to the fore-end with the support hand, the shoulder
stock device will recoil sufficiently rearward to allow the trigger to mechanically reset.
Continued intermediate pressure applied to the fore-end will then push the receiver assembly
forward until the trigger re-contacts the shooter's stationary firing hand finger, allowing a
subsequent shot to be fired. In this manner, the shooter pulls the firearm forward to fire each
shot, the firing of each shot being accomplished by a single trigger function. Further, each
subsequent shot depends on the shooter applying the appropriate amount of forward pressure to
the fore-end and timing it to contact the trigger finger on the firing hand, while maintaining
constant pressure on the trigger itself.
Since your device is incapable of initiating an automatic firing cycle that continues until either
the finger is released or the ammunition supply is exhausted, FIB finds that it is !!!ll a
machinegun as defined under the NFA, 26 U.S.C. 5845(b), or the Gun Control Act, 18 U.S.C.
921(a)(23).
Please be advised that our findings are based on the item as submitted. Any changes to its design
features or characteristics will void this classification. Further, we caution that the addition of an
accelerator spring or any other non-manual source of energy which allows this device to operate
automatically as described will result in the manufacture of a maebip~gµn as defined in the NFA,
5845(b).

To facilitate the retun;LQf Y<>ll? Sat'JlP~;·to •
, , ,the~ide, please provide FTB with the
appropriate FedEx 9f &imitltr account blfi .· .
.witmn 60 days of receipt of this letter. If their
return is not necessary, please fa F'fl.,lt 304~'16-4301 with authorization to destroy them on
your b~f.

>

··· "'

We thank Y~''.fo~'.~~ .

mQ~.
'

.

regoin& has been responsive to your .evaluation

.

,'-::~-

Exhibit A, Pg. 278

Exhibit 2

Exhibit A, Pg. 279

From : Bump Fire Systems orders141 @burnpfiresystems.com
.
Subject : Your BUMP FIRE SYSTEMS order receipt from October 30, 2014
Date: October 30, 2014 at 22:27

To:

Your order has been received and is now being processed. Your order details are shown
below for your reference:

Order: #2872
Product

Quantity

Price

AR15 BFSystem

1

$99.99

Cart Subtotal:

$99.99

Shipping:

$6.00 via Flat Rate

Payment Method:

Credit Card

Order Total:

$105.99

Customer details
Email:
Tel:

Billing address
Damien Guedes

Whitehall , Pennsylvania 18052

Exhibit A, Pg. 280

Exhibit 16
(Verified Declaration of Matthew Thompson)

Exhibit A, Pg. 281

VERIFIED DECLARATION OF MATTHEW THOMPSON

I, Matthew Thompson, am competent to state and declare the following based on
my personal knowledge:
1. I am a resident of Hamburg, Pennsylvania.

2. In 2017, I became interested in a bump stock device.
3. Prior to purchasing a Slide Fire bump stock device, as I wanted to ensure the
legality of the device, I went on Slide Fire's website - https://slidefire.com - to
determine if the Bureau of Alcohol, Tobacco, Firearms and Explosives had
approved the device.

4. Slide Fire's website stated that it had obtained approval from ATF and provided
me with a copy of ATF's June 7, 2010 determination letter. A copy of the letter is
attached as Exhibit 1.
5. In reliance on ATF' s determination letter of June 7, 2010, I purchased a Slide Fire
bump stock device at a cost of $134.00, which I still own today.
6. It is my understanding, based upon ATF' s notice of proposed rulemaking - RIN
1140-AA52, Fed. Reg. No. 2018-06292 - that ATF intends to reclassify bump
stock devices as machine guns in violation of Article 1, Section 9 of the United
States Constitution (i.e. Ex Post Fact clause) and to require me to surrender or
otherwise destroy my Slide Fire bump stock device in the absence of any
compensation, in violation of the Fifth Amendment to the United States
Constitution.

Exhibit A, Pg. 282

I declare under penalty of perjury that the foregoing is true and correct to the best
of my information, knowledge and belief. Executed on April Jj_, 2018.

~flft:w-/f[A .

Matthew

Thomp~

Exhibit A, Pg. 283

Exhibit 1

Exhibit A, Pg. 284

U.S. Department of Justice
Bureau of Alcohol, Tobacco,
Firearms and Explosives

Martinsburg, West Virginia 25405

903050:MMK
3311/2010-434

www.atf.gov

JUN 0 7 2010

This is in reierence to y0ur submission and accompanying letter to the Fiream1s Technology
Branch (FTB), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), asking for an
evaluation of a replacement shoulder stock for an AR-15 type rifle. Your letter advises that the
stock (referenced in this reply as a "bump-stock") is intended to assist persons whose hands have
limited mobility to "bump-fire" an AR-15 type rifle. Your submission includes the following: a
block to replace the pistol grip while providing retention for the selector stop spring; a hollow
shoulder stock intended to be installed over the rear of an AR-15 fitting with a sliding-stock type
buffer-tube assembly; and a set of assembly instrnctions.
The FTB evaluation confirmed that the submitted stock (see enclosed photos) does attach to the
rear of an AR-15 type rifle which has been fitted with a sliding shoulder-stock type buffer-tube
assembly. The stock has no automatically functioning mechanical parts or springs and performs
no automatic mechanical function when installed. In order to use the installed device, the
shooter must apply constant forward pressure with the non-shooting hand and constant rearward
pressure with the shooting hand. Accordingly, we find that the "bump-stock" is a firearm part
and is not regulated as a firearm under Gun Control Act or the National Firearms Act.
Per your telephoned instructions, we will contact. you separately to make return delivery
arrangements.
We thank you for your inquiry and trust that the foregoing has been responsive.
Since el)' yours

// ,
---;. ,'

,~

~
· )~

k
-

'

.

~1

5ohn R . Spencer
C ~~Firearms Technology Branch
1

Enclosure

Exhibit A, Pg. 285

Exhibit 17
( Meet One Of The Analysts Who Determined That Bump
Stocks Were Legal )

Exhibit A, Pg. 286

Exhibit 18
( Fastest Shooter OF ALL TIME! Jerry Miculek |
Incredible Shooting Montage )

Exhibit A, Pg. 287

Exhibit 19
(Gun Control Act of 1968, 82 Stat. 1235)

Exhibit A, Pg. 288

82 STAT.]

PUBLIC LAW 90-618-0CT. 22, 1968

1213

Public Law 90-617
AN ACT
To a11w11tl >*'<'tion :l of tbt- Al't of .June 30, 1H54, nl:i amended, providing for the
<
·ontlAuan<:t> of dvll gO\"f'rwnent for the Trul'lt Territory uf the Pacific Islands.

October 21, 1968
(S. 3207]

B e it eruwted by the Senate and IIowse of Repre11entatives of tlte
Un.i,ted States of .d.rnerioa in O<Yngre&ts ats8emb7,ed, That section 2 of the

Pncltic Tru&t
Territory, civil
government.
Appropriation.
81 Stat. 15.
48 USC 1681 noce.

Act of June· :~O, 195! ( 68 Stat. i3:30), as tunended, is amended by deleting ·'~md $35,000,000 for each of the fisen.I years 1968 and 1969, 1' and
iJ1serting in lieu thereof a comma and the following: "for fiscal year
1969l $5,0001000 in addition to the StllllS heretofore appropriated~ for
fisca year 1970, $50,000,000 and for J:iscal year 1971, $50,000,000'.
SEC. 2. The Act of .Jm1e 30, 195± (68 Stat. 330), as amended, is
amended by adding a. ne>Y section 3 as follows:
"SEC. 3. There are hereby authorized to be appropriated such sums
as the Secretary of the Interior m1ty find necessary, but not to exceed
$10,000,000 for any one year, to n.lle\'i11te suffering and damage resulting from major disasters that occur in the Trust Territory of the
l~acific Islands. Such sums shall be in addition to those n.uthorized
fa section 2 of this Act aud shall not be subject to the ]jmitations
jmposed by section 2 of Lhis Act. 'l'he Secretary of the Interior shall
Jctermine whether or not a major d iaaster has occurred in accordance
with the principles and policies of section 2 of the Act of September 30,
lV50 (64 Stat. 1109), as amended (42 U.S.C. 1855a)."
Approved Oct.ober 21, 1968.

Disaster relief.

76 Stal. 111.

Public Law 90-618
AN ACT
To amend tltltt 18, t;nited State!! Code, to provide for l>etter control of the
lnter::;tate traffic ln flrttanns.

Be • t enacted by the Senate and Hou8e of Rep'l'e8entative8 of the
l
United States of America in Oong1'e88 assembled, That this Act may
be cited as the "Gun Control Act of 1968".

TITLE I -ST..iTE FIREARMS CONTROL ASSISTANCE

October 22, 1968
(H. R. 17 735)

0

r ~~ controt

8•

Act

-l

PURPOSE

SEc. 101. The Congress hereby declares that the purpose of this title
js to provide support to Federal, State, and local law enforcement
officials in their fight against crime and violence, and it is not the
purpose of this title to place any m1due or unnecessary Federnl restrictions or burdens on law-abiding citizens with respect to the acquisi-

Exhibit A, Pg. 289

1214

Anle, p. 226.

PUBLIC LAW 90-618-0CT. 22, 1968

(82

STAT.

tion, possessjon, or use of firearms appropriate to the purpose of
hunting, trapshooting, target shooti.njz:, personal protection, or any
other law£ul activity, and that. this titfe is not intended to discourage
or eliminate the private ownershlp or use of firearms by law-abiding
citizens for lawful purposes, or provide £or the imposition by Federal
:·egulations of any procedures or requirements other than those reasonably necessary to implement ancl effectuate the provisions of this
title.
SEC. 102. Chapter 44 of title 18, United States Code, is a.mended
to read as follows :

"Chapter 44.-FIREARMS
"Sec.
"921.
"922.
"923.
"924.
"925.

DetlnlUons.
Unlawful acts.
Llcenslng.
Penalties.
Exceptions: Relief from disabilities.

"926. Rules and regulations.
"927. Effect on State law.
"928. Separability clause.

"§ 921. Definitions
" (a.) As used in this chapter"(1) The term 'person' and the term 'whoever' include any individual, corporation, company, association, firm, partnership, society,
or }oint stock comgany.
' (2) The term interstate or foreign commerce' includes commerce
between any place in a State and any place outside of that State, or
within any possession o:f the United States (not including the Canal
Zone) or the District of Columbia, but such term does not include
commerce between places within the same State but through any place
outside of that State. The term 'State' includes the District of Co1umbia, the Commonwealth of Puerto Rico, and the possessions of the
United States (not including the Canal Zone).
"(3) The term 'firearm' means (.A.) any weapon (including a starter
gun) which will or is designed to or may readily be convertea to expel
a projectile by the action of an explosive; (B) the frame or receiver
of any such weapon; (C) any firearm mtlflter or firearm silencer; or
(D) any destructive device. Such term does not include an antique
firearm.
" (4) The term destructive device' means" (A) any explosive, incendiary, or poison gasi)
" . bomb'
11) grenade
" iii) rocket hu.ving a. propellant charge of more than fou t•
ounces,
"(iv) missile having an explosive or incendiary charge of
more than one-quarter ounce,
" (v) mine, or
" ( v1) device similar to any of the devices described in the
precedmg clauses;

"1

Exhibit A, Pg. 290

82 STAT.

J

1215

PUBLIC LAW 90-618-0CT. 22, 1968

"(B) any type of weapon (other than a shotgun or a shot:.gim
shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes) by whatever name known
which will, or which may be readily converted to, expel a projectile
by the action of an explosive or other propellant, nnd which hns
any barrel with a bore of more than one-half inch in diameter; and
" ( C) any combination of i;>arts either designed or int.ended for
use m converting any device rnto any destructive device described
in subparagraph (A) or (B) and from which a destructive device
may be readily assembled.
The term 'destructive device· shall not include any device which is
neither desi~ed nor redesigned for use as a weapon; any device1
although originnlly designed for use ns a weapon, which is redesigned
for use as a signaling, pyrotechnic, line throwing safety, or similar
device; sui·plus ordnance sold7 loaned, or given by the Secretary of the
Army pursuant to the provisions of section 4684(2) 1 4685, or 4686 of
title 10; or any other device which the Secretary of tne Treasu:y finds
is not likely to be used as a weapon, is an antique, or is a rifle which the
owner intends to use solely for sporting purposes.
" ( 5) The term 'shotgun' means a weapon designed or redesigned,
made or remade, and mtended to be fired from the shoulder and
designed or redesigned and made or remade to use the energy of the
explosive in a fued shotgUJ1 shell to fire through a. smooth bore eitber
a number of ball shot or a. single projectile for each single pull of the

?OA Stet. 26 3.

trio-~r.

'~( 6) The term 'short-barreled shotgun' means ;\shotgun having one
or more barrels less thm1 eighteen incl1es in length and aJlY weapon
made from a shotgun (whether by alt.eration, mOdification or otherwise) if such weapon as modified has an overall length of less than
twenty-six inches.
"(7) The term 'rifle' means a weaipon designed or redesigned, made
or remnde, and intended to be fired from the sbouldor and designed or
redesigned and made or remade to use the energy of the explosive in a
fixed metallic cartric4re to fire only a single pro3ectile thl·ough a rifled
bore for each single pull of the tri o-ger.
"(8) The term 'short-barrel~ rifle' means a rifle having one or
more barrels less than sixteen inches in len~ and any weapon made
from a rifle (whether by alteration, modification, or otherwise) if
such weapon, as modified, has an overall length of less than twenty-six
inches.
"(9) The term 'importer' means any person engaged in the business
of importing or bringing firearms or ammunition into the United
States for purposes of sale or distribution; and the term 'licensed importer' means any such person licensed under the provisions of this

chapter.

" ( 10) The term 'manufacturer' means any person engaged in the
manufacture of firearms or ammunition for purposes of sil.le or dis-

Exhibit A, Pg. 291

1216

Publication in
Federal R"glster

PUBLIC LAW 90-618-0CT. 22, 1968

[82

STAT.

tribution; and the term 'licensed manufacturer' means any such person lfoensed under the provisions of this chapter.
"(11) The term 'dealer' means (A) any person engaged in the
business of selling firearms or ammunition at wholesale or retail, (B)
any person engalied in the business of repairing firearms or of making
or fitting special barrels, stocks, or trigger mechanisms to firea.rms,
or (C) uny person who is a. pawnbroker. The term 'licensed dealer'
means any dealer who is licensed under the provisions of this chapter.
"(12) The term 'pawnbroker' means any person whose business or
occupation includes the talring or receivrng, by way of pledge or
pawn, of any firearm or a'mmunitio11 as security fort.he payment or
rercayment of money.
'(13) The term 'collector' means any person who acquires, holds, or
dispose.s of fu·earms or ammunition as curios or relics, as the Secretary
shall by regulation define, and the term 'licensed collector' means any
such person licensed under the provisions of this chapter.
"(14) The term 'indictment' mcludes an indictment or information
in any court under which a crime punishable by imprisonment for a
term exceeding one year may be prosecuted.
,
"(15) The term 'fugitive from justice' means any person who has
fled from any State to avoid prosecution for a crime or to a.void giving
testimony in any criminal proceeding.
"(16J The term 'antique firearm' means'(A) any firearm (including any firearm with a matchlock,
:flintlock, percus.5ion cap, or s:unilar type of ignition system)
manufactured in or before 1898 ; and
"(B) any replica of any fir~lrm descdbed in subpni·agraph
(A) if such replica"(i) is not designed or l'e<lesigned for nsing rimfire or conventional centerfiie fixed nmmuuitiou, or
"(ii) uses rimfire or conventional centerfire fixed ammuni·
tion which is no longer manufnctnred in the TTnited States
and which is not reaaily a,vailable in the ordina1·y channels
of commercial tnde.
"(17) The term 'ammunition' means ammunition Ol' cn.rtridge cases,
primers, bullets, or propellent powder designed for use in any firearm.
"(18) The term 'Secretary' or 'Secretary of the Treasury' means tho
Secretary of the Treasury or his delegate.
"(19) The term 'published ordinance' means a publis11ed law of
<my political subdivision of a Stat.e which the Sooretal'y determines to
be relevant to the enforcement of this chapter 1u1d wh1eh is C'Ontained
on a list. compiled by the Secretary_, which list shall be published in the
F ederal Register, revised annun.Uy, nnd furnished to each licensee
under this chapter.
"(20) The term 'crime punishable by impriso11me11t for a term exceeding one year' shall not include (A) any Federal or State offenses
pertaining to antitrust violations~ unfn.ir trade practices, restn:1i11ts of
tl'nde. or other similar offenses relating to the regulation of business
practices as the Secretary may by regulation des1gnatei or (B) any
State offense (other than one involving a firearm or explosive) classified by the laws of the State as a misdemeanor and pu11ishable by a
term of imprisonment of two yea.rs or less.
"(b) For the purposes of this chapter, a member of the Armed
Forces on active duty is a resid~nt of the State in which his permanent
duty station is located.
"§ 922. Unlawful acts
" (a) It shall be unla.w£ul" (1) for any person, except a licensed importer, licensed ma.nufa.cturer, or 1icensed dealer, to engage in the business of importing,

Exhibit A, Pg. 292

82 SnT.]

1217

PUBLIC LAW 90-618-0CT. 22, 1968

mtumfactlll'ing, or dealiu~ ~firearms or ammunition, or in the
course of such business to snip, trnnspo1t, or receive any firearm or
ammunition in interstate or foreign commerce;
1
• (2) for any importer, manufa.ctUNr, dealer, or collector
licensed under the provisions of this rhapter to ship or transport
in interstate or foreign commerce any firearm or ammunition to
any person other than a. licensed import.er, licensed manufacturer,
licensed dealer, or licensed collector, except that" (A) this paragraph and subsect.io11 ( b) ( 3) shall not be
held to preclude a licensed importer licensed manu1acturer,
licensed dealer, or licensed collector from returning a firearm
or replacement firearm of the same kind and type to a person
from whom it was received; and this paru.graph shall not be
held to preclude an individual from mailinR: a firearm owned
in compliance with Federal, State, and loca1 law to a licensed
importer, licensed manufactUl'er, or licensed dealer for the
sole pmpose of repai.r or customizing;
" ( B) this pru.·agraph shall not be held to preclude a licensed
importer, Licensed manufacturer, or licensed dealer from
depositit1g a fire.'\rm for conveyance in the mn.ils to any officer,
employee, agent, or watdunan whot pursuant to the provisions
of section 1716 of this title is elicnble to receive thi·on"h the
.
.
bein
mails })lsto1 revo Ivers, an 'd othe.- firearms capable o-:elf_ g
s,
er
concealed on the person, for use in connection with his official
duty; and
" ( 0) nothing in this pnra~rttph shall be construed as
npplyincr in 1my manner in the vistrict of Columbia the Commonwea~th of Puerto Rico, or any possession of the United
States differently than it would apply if the District of
Columbia 1 the Commonwealth of Puerto Rico, or the possession were m fact a State of the United St.at.es;
"(3) for any person, other than a licensed importer, licensed
mn11ufacturer, licen.sed dealer, or licensed collector to transport
into or receive in the State where he resides (or if the person is a.
corporation or other business entity, the State where it maintains
a p1nce of business) any firearm purchased or otherwiSG obtained
by such person outside that State, except that tllis paragraph (.A.)
shall not preclude any person who lawfully acquire$ a firearm by
bequest or intestate succession in a State other than his State
of residence from transporting the firearm into or receiving it
in tho.t State, if it is ln,vful for such person to purchase or possess
such firearm in that State, (B) .shall not apply to the transportation or receipt of a rifle or shot~ obtained in conformity with
the provisions of subsection (b) (3) of this section, and ( C) shall
not apply to the transportation of any firearm acquired in any
State prior to the effective date of this chapter;
"(4) for nny person, other than a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector, to transport in
intet'State or foreign commerce any destructive device, machinegun (n.s defined in section 5845 of the Internal Revenue Code of
1954), short-barreled shot~ or short-barreled rifle, except as
specifically authorized by the Secretary consistent with public
saiety nnd necessity;
"{5) for any person (other than a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector) to transfer,
sen, trade, give? transp?rt, or deliver any firearm to any yerson
(other thn n n hcensecl 1mporter, licensed manufacturer, licensed
dealer, or licensed collector) who the transferor knows or has reasonable cause to belieYe resides in nnv State other thnn that in

62
78 1
stat.
:
63 Stat. 95 .

Post, p . 123 1.

Exhibit A, Pg. 293

1218

PUBLIC LAW 90-618-0CT. 22, 1968

[82

STAT.

which the transferor resides (or other tha11 that in which its place
of business is located if the transferor is a corporation or other
business entity) ; except that this paragraph shall not apply to
(A) the transfer, transportation, or delivery of a firearm made
to carry out a bequest of a :firearm to, or an acquisition by intestate succession of a firearm byt a person who is permitted to
ncquire or possess a firearm under the laws of the State of his
residence, and ( B) the loan or rental of a firearm to any person
for temporary use for lawful sporting purposes; and
" (6) for any ~rson in connection with the acquisition or
attempted acqi1is1tion of any firearm or ammunition from a
licensed importer, licensed manufacturer, licensed dealer, or
licensed collector, knowingly to make any false or fictitious oral
or written statement or to furnish or exhibit any false, fictitious,
or misrepresented identification, intended or likely to deceive such
importer, 1mumfactUI·er, dealer, or coUector "\Tith respect to any
fact material to the lawfulness of the sale or other disJ?osition of
such firearm or nmmunition under the provisions of tins chapter.
"(b) It. shal1 be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed co11ector to sell or deliver" (1) any firearm or ammunition to any individual who the
licensee knows or has reasona:ble cause to believe is Jess than
eighteen years of nge1 and, if the fire1n·m, or ammunition is other
than a shotg'l_:ln or nfle, or ammunition for a shotgun or rifle,
to any iudiv1dua] who the licensee knows or has reasonable cause
to believe is less than twenty-one years of age.
"(2) any firearm or ammunition to any person in m1y State
where the purchase or possession by such person of such .firearm
or ammumtion would be in violation of any State law or any
published ordinance applicable at the place of sale, delivery or
other disposition, unless the licensee knows or has reasonable cause
to believe that the purchase or possession would not be in violation
of such State la \V or such published ordinance;
"(3) tmy firearm to any person who the lfrensee knows or has
reasonable cause to believe does not reside in (or if the person is n
corporation or other business entity, does not maintain a pln.ce of
busmess in) the State in which the licensee's place of business is
located, except that this paragraph (A) shall not apply to the sale
or delh-ery of n. rifle or shotgun to a resident of a State contiguous
to the State in which the Jicensee.'s place of business is located if
the purc11nser's State of residence permits such sale or deJh·ery by
law, the sale fully complies with t]1e legal conditions of sale in both
such contiguous Stutes, and the purcbnser and t.h e licensee have,
prior to the sale, or delivery for sale, of the rifle or shotgun, complied wit.h all of tbe requirements of section 922( c) aJ?plicahle to
mtrastate transactions other thnn nt tbe licensee's busmess premises, (B) shnll not apply to the loan or rental of a firearm to any
person for temporary use for lnw:ful sport.ing purposes, and (C)
shall not preclude nny person "-ho is participating in any organized rifle or shot~ match or contest, or is engaged fo hnnting,
in a State other than his State of residence nnd whose rifle or shot~ has been lost or stolen or has become inoperative in such other
bta.te, from purchasing a. rifle or shotgun in such other Stiite from
a licensed dealer :if such person presents to such dealer a sworn
statement (i) •that his rifle or shotgun was lost or stolen or became
inoperative while participating in such a match or contest1 or while
en~ap:ed in hunting, in such other State, and (ii) identitying the
c111ef law enforcement officer of the locality in which such person
resides, to whom such licensed dealer shnll forward such statement
by registered mail;
1

Exhibit A, Pg. 294

82 STAT.]

1219

PUBLIC LAW 90-618-0CT. 22, 1968

"(4) to any person 1my destructive dedce, nmchinegun (as
defined in section 5845 of the InternaJ ReYenue Code of 1954),
short-barreled shotgun, or short-barreled rifle, except as specifically authorized by the Secretary consisten't with public safety and
necessity; and
"(5) any firearm or run.munition to any person unless the licensee
notes in Ins records, required to be kept pursua.nt to seetion, 923 of
this chnpter, the namez a~e, and place of residence of such person
if the person is 1-..n individual, or the identity and principal nnd
Jocnl places of business of such person if the person is a corporation
or other business entity.
l'nragraJ>hS (1), (2), (3) , and ( 4) of this subsection shall not npply to
tl'ausact1ons between licensed 1mpo1'1:ers, licensed manufacturers,
licensed dealers, and licensed collectors. Paragraph (4) of this subsection shall not npply ton. sale or delivery to nny resenr~h organization desi"nated by the Secretary.
" ( c) fn any cilse not otherwise prohibited by this chn pter, a licensed
importer, licensed manufacturer, or licensed dealer may sell a firearm
to a -person who does not appear in person ltt the licensee's business
preIIllseS (other than another licensed importer, manufacturer, or
dealer) onty if" (1) the transferee submits to the transferor a sworn statement
in the following form:
"'Subject to penalties provided by law, I swear
thllt, in the case of any firearm other than 1l shotgun
or a rifle, I am twenty-one years or more of age, or
that, in the case of a shotgun or a rifle, I nm eighteen
years or more of age; that I am not prohibit,e d by the
provisions of chn.J;>ter 44 of title 18, Unjted States
Code, from receivmg a firearm in interstate or foreign commerce; and that my receipt of this firearm
will not be in violation of any statute of the State
and published ordinance applicable to the locality
in wl1ich I reside. Further, the true title, name, and
address of the principal law enforcement officer of
the locality to which the firearm will be delivered
are -------------------------------------------

Signature ---------------------- Date---------·'
and containing blank spaces for the attachment of a. true copy
of any permit. or other information required pursuant to such
statute or published ordinance;
"(2) the transferor has, prior to the shlpment or delivery of
the firearm, forwarded by registered or certified mail (return
receipt requested) a copy of the sworn statement, together with
a description of the firearm, in a form prescribed by the Secretary2
to the chief law enforcement officer of the transferee's place ot
residence, and has received n, return receipt evidencing delivery
of t.11.e statement or has had the statement. returned due to the refusal of the named addressee t-0 accept such letter in accordance
with United States Post Office Department regulations; and
"(3) the transferor has delayed shipment or deliveIJ: for a
period of at least seven days following receipt of the notification
of the aooeptance or refusal of delivery of the statement.
A copy of the sworn statement and a copy of the notification to the local
law enforcement officer, together with evidence of receipt or rejection
of that notification shall be retained by the licensee as a part of the
records required to be kept under section 923 {g).

Post, p. 1231.

Recordkeeping.

Ante, p. 1214 .

RecordkeepLng.

Exhibit A, Pg. 295

1220

Po.st, p. 1361.
21 USC 321.
74 Slat. 57.
26 use 4731.

PUBLIC LAW 90-618-0CT. 22, 1968

[82

STAT.

"( d) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or otherwise dispose of any .firearm or am.munition to any person knowing or having
reasonnble cause to beljeve tha,t such person" (1) is under indictment for, or has been convicted in a.n,Y court
of, a crime punishable by imprisonment for a term exceedmg one
year;
"(2) is a fugitive from justice;
"(3) is an unlawful user of or addicted to nunihuana or auy
depressant or stimulant drucr (as defined in section 201 ( v) of the
Federal Food, Drug, and 5osmetic Act) or narcotic drug (as
de.fined in section 4731 (a) of tl1e Internal Revenue Code of 1954) ;
or
" ( 4) has been adjudicated as a mental defective 01· hns been
committed to any mental institution.
This subsection shall not apply with respect to tl1e snle or disposition
of a fireatm or ammunition to a licensed importer, licensed manufactiu·er, licensed dealer, or lieensed collector who pursuant to snbsection
( b) of section 0-25 9f this chapter is not pt'ecluded from dealing in firearms or ammlmition, or ton person wl10 has bee11 grnnted relief from
cUs1tbilities pursuant to subsection ( c) of section 925 of this chapter.
" ( o) It shall be unlawful :for any person knowin~Jy to delh-er or
ntuse to be delivered to any common or conh·act C'nrrier for trnnsportution or shipment in interstate or foreign commerce, to persons othPr
thnn licensed importers, licensed manufacturers, licensed <le~llers, or
licensed collectors, any l>ack~~ or other container in which there is
any :firearm or nmmunibon without written notice to the carrier that
<>uch firearm or ammunition is being transported or shipped; except
that any passenger who owns or legalJy pvssesses a iiren,rm or ammnnition being transported aboard any common or contract carrier for
movement '"°ith the passenger in interstate or foreign commerce mny
deliver said firearm or ammunition info the custody of the pilot, captain, conductor or operator of such common or contrad aarrier for the
duration of the trip without violating any of the provisions of thi:>
chapter.
"(f) It shall be unlawful for any common or contract carrier to
transport or deliver in interstate or foreign comme1·ce any firearm or
ammunition with knowledge or reasonable cause to believe that the
shipment, transportation, or receipt thereof would be in violation of
the ,provisions of this chapter.
·" (g) It shall be unlawful for any person" {1) who is under indictment for, or wh-0 has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year;
'' (2) wl10 is a fugitive from justice;
"(3) who is ~ unlawful user of or addicted to marihuana or
any depressant or stimulant drug (as defined in section 201 ( v)
of the Federal Food, Dntg, and Cosmetic Act) or narcotic dru~
(as de.fined in section 4731(a.) of the Internal Revenue Code ot
1954) ·or
" (4) who has been adjudicated as n mental defective or who
has been committed to a mental institution;
to ship or transport any firearm or ammunition in interstate or foreign
commerce.
"(h) It. shall be unlawful for any person"(1) who is under indictment for, or who has been convicted in
any oo.urt of, 11. crime punishable by imprisonment for a term
exceeding one year;
"(2) who is a fugitive from justice;

Exhibit A, Pg. 296

82 STAT.]

1221

PUBLIC LAW 90-618-0CT. 22, 1968

"(3) who is an unlawful user of or addicted to marihuana or
any depressant or stimulant drug (as defined in section 201 ( v) of
the Federal Food, Dru_g, and Cosmetic Act) or narcotic drug (as
defined in section473l(a) of the InternaJ Revenue Code of 1954);
or
"(4) who has been adjudicated as a mental defective or who
has been committed to nny mental institution;
to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
"(i) It shall be unlawful :for any person to transport or ship in
interstate or foreign commerce, any stolen firearm or stolen ammunition, knowing or~having reasonable cause to believe that the firearm
or ammunition was stolen.
"(j) It shall be unlnwful for llllY person to receive, conceal, store,
barter, sell, or dispose of any stolen fire."irm or stolen ammunit.ion, or
pledge or accept as security for a loan any stolen firearm or stolen
ammunition, which is moving tls, which is a pa.rt of, or wbjch constitutes, interstate or foreign commerce, knowing or having reasonable
cause to believe.that the firearm or ammunition was stolen.
"(k} It shall be unlllwful for any person knowingly to transport,
ship, or receive, in interstate or foreign commerce, any .firearm which
has had the importer's or manufacturer's serial number removed, obliterated, or altered.
"(1) Except as provided in section 925 (d) of this chapter, it shall be
unlawful for any person knowingly to import or bring into the United
Stares or any possession thereof ltny firearm. or ammunition i and it
shall be. unh1wful for a.n.y person knowingly to receive n)ly firearm or
ammunition which has been imported or brought into the United States
or any possession thereof in Yiolation of the provisions of this chapter.
"(m) It shall be unfo.wful for any licensed importer, licensedmanufncturet', licensed dealer, or licensed collector knowingly to ma.ke any
false entry in, to fail to make a.p'(>ropriate entry in, or to fa.il to properly
maiJlltain1 any record which he is required to keep pursna.nt to section
923 of this chapter or regulations promulgated thereunder.
"§ 923. Licensing
"(a) No person shall engage in business as a..firea.rms or ammunition
importer, manufa.oturer, or dealer until he has ftled an application with,
and received a. license to do so from, the Secretary. The application
shall be in such form a.nd contain such information as the Secretary
shall by re!!Ulation prescribe. Each applicant shall pay a fee for obtaining such a. license, a separn.te fee. bein~ required for each place in which
tJ1e applicant is to do business, as follows:
"(1) If the a.pplicant is a manu:facturer"(A) of destructive devices or ammunition for destructive devices, a :fee of $1,000 per year;
"(B) o:f .firearms other than destructive devices, a fee of $50
per year; or
"(C) o:f ammunition for :firearms other than destructive devices, a fee o:f $10 per year.
"(2) If the applicant is an importer"(A) of destructive devices or ammunition :for destructive devices, a fee o:f $1,000 per year; or
" ( B) of .firearms other than destructive devices or ammunition
for firearms other than destructive devices, a fee of $50 per year.
" (3) If the applicant is a dealer" (A) in destructive devices or ammunition for destructive
devices, a :fee of $1,000 per year;

Post, p. 1361.
21 IJSC 32 l.
74 Stat. 57 .
26 USC 4731.

Record keeping.

Fees.

Exhibit A, Pg. 297

1222

Approval.

PUBI....IC LAW 90-618-0CT. 22, 1968

(82

STAT.

"(B) who is a pawnbroker dealing in .firearms other than
destructive devices or ammunition for firearms other than destructive devices, a fee of $25 per year; or
"(C) who is not a dealer in destructive devices or a pawnbroker, a fee of $10 per year.
"(b) Any person desiring to be licensed as a collector shaU file an
application for such license with the Secretary. The application shall
be in such form a.nd contain such information as the Secretary shall by
regulation prescribe. The fee for such license shall be $10 per year. Any
license granted under this subsection shall only apply to transactions
in curios and relics.
"(-c) Upon the filing oi a p1·oper application and payment of the
prescribed fee, the Secretary shall issue to a qualified applicant the
a.ppropriate license which, subject to the provisions of this chapter and
other a{'plicable provisions of law, shall entitle the licensee to transport, slup, and receive firearms and ammunition covered by such license
in interstate or foreign commeroe during the period stated in the
license.
" ( d) ( 1) Any application submitted under subsection (a) or (b) of
this section shaU l:>e approved if" {A) the applicant is twenty-one years of age or over;
"(B) the applicant (including, in the case of a coryoration,
partnership, or association, any individual possessing, clrrectly or
rndirectly, the power to direct or en.use the direction 0£ the mana~ent and policies of the corporation, partnership, or association) is not prohibited from trn,nsporting, shipping, or receiving firearms or ammunition in interstn:te or foreign commerce
under section 922 (g) and (h) o:fthis chapter;
"(0) the applicant has not willfully violated any of the pro-

visions of this chapter or regulations issued thereunder i

76 Stat. 744.

Revocation.

"(D) the npp1Jcant has not wi11fully failed to disclose any
material iniorma.tiou required, or has not made any false statement as to any material fact, in connection with his application;
and
"(E) the applicant has in a State (i) premises from which he
conducts business :subject to license under this chapter or from
which he intends to conduct such business within a reasonable
period of timel or (ii) in the case of a collector, premises from
which he conaucts his collecting subject to license under this
chapter or from which he intends to conduct such collecting within
a reasonable period of time.
." (~) The Seretnry must approve o~· d~y au applicutio~1 f!ll' a li~ense
w1thm the forty-five-day penod begmmng on the date It IS received.
H the Secretary fails to act within such period, the a.J>plicant may file
nn action under section 1361 of title 28 to compel the Secretary to act.
If the Secretary approves an a.pplicant's application, such applicant
~hall be issued 11 license upon the payment of the prescribed fee.
"(e) The Secretary may, after notice and opportunity for hearing,
revoke any Jicense issued under t11is seotion if the holder of such
license has violated any provision of this chapter or any rule or regulation prescribed by the Secretary under this chapter. The Secretary's
action tmder this subsection ma,y"be reviewed only as provided in subsection (f) of this section.
"(f) (1) Any person whose application for a license is denied and
any holder of a license which is revoked shall :receive a written notice
from the Secretary stating specifically the g-rounds upon which the
application was denied or upon which the license was revoked. Any
notice of a revocation of a license shall be. given to the holder of such
license before the effective date of the revocation.

Exhibit A, Pg. 298

82 STAT.)

1223

PUBLIC LAW 90-618-0CT. 22, 1968

"(2) If 1 Secretary denies an application ior, or revokes, a license,
the
he shall, upon request by the aggrieved party, promptly hold a hearing
to review his denial or revocation. In the case of a revocation of a
license, the Secretary shall upon the request of the holder of the license
stay the effective date of the revocwtion. A hearing held under this
pnragra ph sha.Il be held at n. location convenient to the aggrieved party.
" (3) If n.:fter a hearing held under paragraph (2) the Secretary
decides not to reverse his decision to deny an application or revoke a
license, the Secretary shall give notice of his decision to the aggrieved
party. The aggrieved party may at any time within sixty da.ys after
the date notice was gi ,·en under this p~wagraph file a petition with the
United States district court for the district in which he Tesides OT has
his principal place of ·business for a judicial review of such denial or
re\roca.tion. In a proceeding conducted under this subsection, the court
may consider any evidence submitted by .the parties to the proceeding.
If the court decides that the Secretary was not authorized to deny the
application or .t o revoke the license, the COUI't shall order the Secretary
to take such action as may be necessary to compJy with the judgment
of the court.
" (g) Each licensed importer, licensed manufacturer,.licensed dealer,
and licensed collector shall maintain such records of importation, production, shipment, receipt, sale, or other disposition, of :firearms a.nd
a.mmrmition a.t such place, for such period~ and in such form as the
Secretary may by r8t,,aulations prescribe. :::;uch importers, manufacturers, dealers, and collectors shall make such records a,vailable for
inspection at all reasonable times, and shall submit to the Secretary
such reports and information with respect to such records lllld the contents thereof as he shall by regulations prescribe. The Secretary may
enter during business hours the ;>remises (including places of storage)
of o.ny firearms or ammunition importer, manufacturer, dealer, or collect.or for the purpose of inspecting or examining (1) any records or
documents required to be kept by such importer, manufacturer, dealer,
or collector under tl1ejrovisions of this chapter or regulations issued
under this chapter, an {2) any fu·earms or o.mm.unition kept or stored
by such importer, manufacturer, dealer, or collector at such premises.
Upon the request of aJly St."Ute or any ~litic.al subdivision thereof the
Secretary may make available to such St.ate or 11,ny political subdivision thereof, any information which he may obt.o.m by reason of the
provisions of this chapter with res~ ·t o the identification of persons
within such State or political subdivision thereof, who have purchased
or received firearms or ammunition, together with a descriptfon of such
firearms or ammunition.
"(h) Licenses issued under the provisions of subsection \ c) of this
section shall be kept posted and kept available for inspection on the
premises covered by the license.
"(i) Licensed importers u.nd licensed manufacturers shall identify,
by means of a. serial number engraved or cast on the receiver or frame
of the weapon, in such mnnner as the Secretary shall bv regulations
prescribe, each firearm imported or manufactured by such importer or
mt\.llufaoturer.
"(j) This section shall not apply to anyone who engages only in
hand loading, reloading, or custom loading ammunition for his own
firearm, and who does not hand load, reloaa, or custom load ammunition for others.
"§ 924. Penalties
"(a.) Whoever violates any provision of this chapter or knowingly
makes any false statement or representation with respect to the information required by the provisions of this cl1a.pter to be kept in the records of a person licensed under this chapter, or in applying for any

Hearing.

Judictat review.

R ecordkeep lng.

u

Poslins
c:<>nse.

0

'

Exemptio n .

Exhibit A, Pg. 299

96- 600 0 - 89 - 80

1224

Post, p. 1230.

70A Stat. 236.

PUBLIC LAW 90-618-0CT. 22, 1968

[82

STAT.

license or exemption or relief from disability under tJ1e provisions of
this chapter, shall be fined not more than $5,000, or imprisoned not
more than tive years, or both, and shall become eligible for parole as
t.he Board of Parole shall determine.
"(b) Wl1oever, with intent to commit therewith an offense punishable by imprisonment for a term exceeding one year, or with knowledge
or reasonable cause to believe that an offense puni.'ihable by imprisonment for a term exceeding one year is to be committed therewith, shlps,
trnnsports, or receives a fireum or any ammunition in interstate or
foreign commerce shall be fined not more than $10,000, or imprisoned
not mot·e tl1an ten years, or both.
" ( c) Wl1oever" ( l) uses a firearm to commit any felony which may be prose<'Uted in a court of the United States or
"(2) carries a firearm unlawfully during the commission of
any felony which may be prosecuted in a court of the United
States,
shall be sent-enced to a term of imprisonment for not less than one
year nor more than 10 years. In the case of his second or subsequent
conviction under this subsection, such person shall be sentenced to a
term of imprisonment for not less tlum live years nor more than 25
years, and, notwithstanding any other provision of law, the court shall
not suspend the sentence of such person or ghre him a probationary
sentence.
"(d) An:y firearm or ammunition involved in or used or intended
to be used m, any violation of the provisions of this chapter or any
rule or regulation promulgated thereunder, or any violation o:f any
other crimmal law of the United States, shall be subject to seizure and
:forfeiture and all provisions of the Internal Revenue Code of 195-1
relating to the seizure, :forfeiture, and disposition of firearms, as
defined in section 5845 (a) of that Code, shall, so far as applicable,
extend to seizures and :forfeitures under the provision.s of this chapter.
"§ 925. Exceptions: Relief from disabilities
"(!\,) (1) The provisions of this cha:eter shall not apply with respect
to the transportation, shipment, receipt, or importation of any firearm or ammunition imp01-ted for,_ sold or shipped to, or issued for the
use of, the United States or any department or agency thereof or any
State or nny department, agency, or po1itical subdivision thereof.
"(2) The provisions of this chapter shall not apJ?lY with respect to
(A) tl1e shipment or receipt of firearms or ammumtlon when sold or
issued by the Secretary of the Army pursuant to section 4308 of title
10, and (B) the transportation of any such firearm or ammunition
carried out to enable a person, who htwfulJy received such firearm
or ammtmition from the Secretary of the Army, to engage in military
training or in competitions.
"(3) Unless otherwise prohibited by this chapter or any other Federal law, a licensed importer, licensed manufacturer or licensed dealer
may ship to 1t member of the United States Armed Forces on active
duty outside the United State-S or to clubs, recognized by the Department of Defense, whose entire membership is composed of such members, nnd such members or clubs may receive a fi~rm or ammunition
determined by the Secretary of the Treasury to be generally recognized
as particularly suitable for sporting purposes and intended for the
persona.1 nse of such member or club.
"(4) When established to the sa.tisfaction of the Secretary to be
consistent with the provisions of this chapter and other applicable
Federal and State laws and published orcliitances, the Secret.airy may

Exhibit A, Pg. 300

82 STAT.]

122.5

PUBLIC LAW 90-618-0CT. 22, 1968

authorize the trnusportation, shipment, receipt, or importation into
the United States to the place of residence of any member of the
United States ~.\rmed Forces who is on active duty outside the United
States (or w•ho has been on active duty outside the Unit.ed States
within the sixty da.y period immedia.tely preceding the transportation,
shipment, reeeipt, or jmportation), of any firearm or ammunition
which is (A) determined by the Secretary to be generally recognized
as particufarly suitable for sporting purposes, or determined by the
Depa.rtment of Defense to be a type <>f firearm normally classified as
a war souvenir, 1uid (B) intended for the personal use of such member.
"(5) Forthepu~poseofpamgraphs (3) and (4) of this subsection,
the term 'rnited States' means each of the several States and the
rnstrict of Columbia.
"(b) ...:\.licensed importe1·, licensed manufacturer, licensed deciler, or
licensed collwtor who is indicted for a crime punishable by imprisonment for a tetm exceeding one year, mn.y, notwithstandinO' any other
provision of this chapter, continue operation pursuant to tis existing
license (if prior to the expiration of tbe term of the existing license
timely application is made for a new license) during the term of such
indictment imd until any conviction pursuant to the indictment becomes
final.
" ( c) A. person wJ10 has been con vioted of a. crime punishable by
imprisonment for a tenn exceeding one year (other than a crime
involving the use of a firearm or other weapon or a. violation of this
chapter or of the National Firearms Act). ma.y make application to the
Secretary for relief from the disabilities imposed by Federal laws with
respect to the acquisition, receipt, transfer, shipment, or possession of
.firearms nnd incurred by reason of such conviction and the Secretary
may grant such relief if it is established to his satisfaotion that the cirrumstances regarding the condction, and t.he applicant's record and
reputation, are such that the applicant will not be likely to act in a.
manner dangerous .to public safety and that the granting of the relief
would not l:ie contrary to the public interest. A licensed importer,
licensed mimufacturer, licensed dealer, or licensed collector conducting
operations under this chapter, who makes application for relief from
the disabilities incurred under this cha.J?ter by reason of such a conviction, shall not be barred by such conviction from further operations
under his license pending flnal action on an application for relief filed
pursua.nt to this section. Whene,~er the Secretary grants relief to any
person pursuant to this section he shall promptly publiSh in the Federal
R~ister uotice of such action, together with the reasons therefor.
' ( d) The Secretary may authorize a. firearm. or ammunition to be
imported or brought into the United States or any possession thereof
if the person importing or bringing in .the firearm. or ammunition
establishes ito the saHsfaction of the Secretary that the firearm or
ammunition" ( 1) is being imported or brought in for scientific or research
purposes, or is for use in connection with competition or training
pursuant to chapter 401 of title 10;
''(2) is an unservicea.ble firearm, other than a machinegun as
defined in section 5845(b) of the Intern.a] Revenue Code of 1954
fnot reaclqy restorable to. firing condition), imported or brought
in as a curio or museum piece;
" ( 3) is of a type that does not fall within the definition of a
firearm as defined in section 5845 (a) of the Internal Revenue Code
of 1954 and is genera Uy recognized as particularly suita.ble for or
readily adaptable to sporting purposes, excluding surplus military
firearms; or

11

United States."

Poat, p. 1227.

Publication in
Federal Register.

?OA Stat . 234.
10 use 4301 4313 .
Post,p. 1231 .

Exhibit A, Pg. 301

1226

PUBLIC LAW 90-618-0CT. 22, 1968

[82

STAT.

"( 4) was previously taken out of the United States 01· a possession by the person who is bringing i11 the firearm or ammunition.
The Secretary may permit the conditional importation or bringing
in of a firearm or ammunition for examination and testing in connect ion with the making of a determination as to whether the importation
or brin~ing in of such firearm or ammuni,t ion will be allowed under this
subsect1011.
"§ 926. Rules and regulations
"The Secretary mny prescribe such rules and regulations ns he deems
reasonably 11ecess1\ry to carry out the provisions of this chapter, includiu~-

'(l) regulations provjding that a person licensed under this
chapter, when dealing with another person so licensed, shall provide such other licensed person a certified copy of this license;
ud
'
"(2) regnlations providing for the issuance, at a reasonable cost,
to 1\. person licensed under this chnpter, of certified copies of his
license for use as provided under regulations issued under paragraph ( 1) of this subsection.
The Secretary shall give reasonable public notice, and afford to inte1-ested parties opportunity for hearing, prior to prescribing such
rnles and regulations.

"§ 927. Eftect on State law
"No provision of this chapter shall be construed as indicating an
intent on the part of the Congres.s to occupy the field in which such
provision operates to tl1e exclusion of the law of any State on the sa.me
subject matter, unless there is a direct and p·o sitive conflict bet.ween
such provision and the law of the State so that the two cannot be
reconciled or consistently stand together.

"§ 928. Separability
"If any provision of this chapter or the application thereof to any

Po•t, p. 1227.

6.

Stat. 848.

62 Stat. 781;
63 Stat. 95.
E!fectlve dated.

person or circumstance is held invalid, the remainder of the chapter
and the application of such provision to other persons not similarly
situated or to other circumstances shall not be a.ffected thereby."
SEC. 103. The administration and enforcement of the amendment
made by this title shall be vested in the Secretary of the Treasury.
Sro. 104. Nothing in this title or the amendment made thereby shall
be construed as mooifying or affecting any provision of( a) .the National Firearms Act (chapter 53 of the Internal
Revenue Code of 1954) ;
(b) section 414 of the Mutual Security Act of 1954 (22 U .S.C.
1934), as amended, relating to munitions control; or
(c) section 1715 of title J..8, United States Code, relating to nonmaila.ble firearms.
SEC. 105. (a) Except as provided in subsection (b), the provisions
of cha.pter 44 of title 18, United States Code, as a.mended by section
102 of this title, shall take effect on December 16, 1968.
(b) The following sections of chapter 44 of title 18 United States
Code, as amended by section 102 of this title shaU t~ke effect on the
dnte oft.he enactment of this title: Sections 921, 922(1), 925(a)(l),
and 925(d):

Exhibit A, Pg. 302

82 STAT.]

1227

PUBLIC LAW 90-618-0CT. 22, 1968

TlTLE II-MACHINE GUNS, DESTRUCTIVE DEVICES,
AND CERTAIN OTHER FIREARMS
SEC. 201. Chapter 53 of the Internal Revenue Code of 1954 is
amended to read as follows:

"CHAPTER 53-MACHINE GUNS, DESTRUCTIVE
DEVICES, AND CERTAIN OTHER FIREARMS

Natlonel Fire -

arms Act Amendments of 1968.

68A Stet. 72 L
72 Stat. 1428.
26

use ssoi-

5862.

"Snbcbapter A. '!'axes.
"Subchapter B. General provisions and exemptions.
"Subchapter C. Prohibited acts.
"Subebapter D. Penalties and forfeiture&.

"Subchapter A-Taxes
I. Special (occupational) taxes.
"Pa.rt II. Tax on transferring firearms.
"Part III. Tax on making ft rearms.
"Part

"PART I-SPECIAL (OCCUPATIONAL) TAXES
"see. 5801. Tax.
"Sec. 5802. Registration of ill1Porters, manufacturers. and dealers.
"SEC. 5801. TAX.

"On first engaging in business and thereaf• on or before the first
ter
day of July of each year, every importer, manufacturer, and dealer in
firearms shall pay a special (occupational) tax for each place of
business at the following rates :
!MPOR'rERS.- $f>OO n year or· fraction thereof i
.
" 2) M:ANUFAOTURERS.-$500 a year or fraction thereof;
" 3) DEALERS.-$200 a year or fraction thereof.
Except an impo1ter, manufacturer, or dealer who imports, manufactures, or deals in only weapons classified as 'any other weapon'
under section 5845 (e), shall pay a special (occupational) tax for each
pln.ce of business at the following rates: Importers, $25 a year or
fraction thereof; manufacturers, $25 a year or fraction thereof i
dealers, $10 a year or fraction thereof.

"il)

"SEC. 5802. REGISTRATION OF IMPORTERS, MANUFACTURERS, AND
DEALERS.

"On first engaging in business and thereafter on or before the first
day of July of each year, en.ch importer, manufacturer, and dealer in
firearms shall register with the Secretary or his delegate in each
internal revenue district in which such business is to be carried on,
his mtme, including any trade name, and the address of each location
in the district where he will conduct such business. Where there is a
cha.nge during the taxable year in the location of, or the trade name
u.sed m, such business, tl1e importer, manufacturer, or dealer shall file
an application with the Secretary or his delegate to amend his registration. Firearms operations of an importer, manufacturer, or dealer
may not be commenced at the new location or under a new trade name
prior to approval by the Secretary or his delegate of the application.

Exhibit A, Pg. 303

1228

PUBLIC LAW 90-618-0CT. 22, 1968

(82

STAT.

"PART II-TAX ON TRANSFERRING FffiEARMS
"Sec. 5811. Transfer tax.
·•sec. 5812. Transfers.
"SEC. 5811. TRANSFER TAX.

" (a) Ran:.-There shall be levied, collected, and paid on :firearms
t.ransferred a tax at the rate of $200 for each firearm transferred,
ex:cep1·, the transfer tax on any firearm classified as any other weapon
under section 5845 (e) shall be at the rate of $5 for each such firearm
transfer.red.
"(b) BY WuoM PAm.- 'fhe tax imposed by subsection (a) of this
section shall be paid by the transferor.
"(c) PATIIBNT.- The tax imposed by subsection (a) of this section
sha.11 be payable by the appropriate stamps prescribed for payment
by the Secretary or his delegate.
"SEC. 5812. TRANSFERS.

''(a.) A.rPLIC.\TION.-A firearm shall not be transferred unless (1)
the transferor oi the firearm has filed with the Secretary or his dele~ate a written application, in duplicate, for the transfer and registrahon of the firearm to the transferee on the application form prescribed
by the Secretary or his delegate; (2) any tax payable on the transfer
js paid as evidenced by the proper stamp affixed to the original ap])lication form; (3) the transferee is identified in the application form
in such manner as the Secretary or his delegate may by reoulations
prescribe, except that, if such person is an individual, the iaentitication must include his fi.ngerpril1ts and his photograph; ( 4) the transferor of the firearm is identified in the application form in such manner as the Secretary or his delega.t.e may by regulations prescribe; ( 5)
the firearm is identified in tbe application forrn in such mallDer as the
Secretary or his delegnrte ma_y by l'ei,,O'lllations prescribe; and (6) the
application form shows that the Secretary or his delegate has approved
tJ1e transfer and the registration of the Jhearm to the transferee. Applications shall be demed if the transfer, receift' or possession of th"
firearm would place the transferee in violation o law.
"(b) TRANSFER OF PosSESSION.-The transferee of a firearm shall not
take possession of the firen1·m unless the Secretary or his delegate has
approved the transfer and registration of tbe firearm to the transferee
as required by subsection (a) of this section.

"PART III-TAX ON MAKING FffiEARMS
"Sec. 0821. Making tax.
"Sec. 5822. Making.
"SEC. 5821. MAKING TAX.

"(a) R\TE.-There shall be levied, collected, and paid upon the
making of a firearm a ta.x at the rate of $200 for ea.ch fo·earm made.
"(b) BY WHOM PAJD.-The tax imposed by subsection (a) of this
section shall be paid by the person makmg the firearm.
"(c) PAYMENT.-The tax imposed by subsection (a) of this section
shall be payable by the stamp prescribed for payment by the Secretary
or his delegate.
"SEC. 5822. MAKING.

"No person shall make a. firearm unless he has (a) filed with the
Secretary or his delegate a written applicationbin dut?,licate, to make
Md register the firearm on the form prescribed y the Secretary or his
delegate; (b) paid any tax payable on the making and such payment
is evidenced by the proper stamp affixed to the original application
form; (c) identified the firearm to be made in the application form

Exhibit A, Pg. 304

82 STAT.)

1229

PUBLIC LAW 90-618-0CT. 22, 1968

in such maru1er as the Sec1-etary or his delegate may by regulatious
prescribe; ( d) identified himself in the application form in such manner as the Secretary or his dele~ate may by regulations prescribe, except tha.t, if such person is an individual, the identification must include his fingerprints and his photogrnph; and ( e) obtained the appro,,al of the Secretnry or his delegat.e to make and register the fu-enrm
and the a.pplicntion form shows such approval Applications shall be
denied if the making or possession of the firearm would place the
person maldug the firenrm in violation of law.

"Subchapter B-General Provisions and Exemptions
"Part I. General prov!Sions.
'·l'art II. Exemptions.

"PART I-GENERAL PROVISIONS
"Sec. 5841. Registration ot ftreanns.
''Sec. 5842. Identification ot firearms.
"Sec. 0843. Records and returns.
"Sec. 5844. lmportatlon.
"Sec. 1)845. Ddlnitk>ns.
"Sec. ~ Otber laws applicable.
"Sec. 5847. Effect on other law.
"Sec. 5848. Restrictive use of information.
"Sec. 5849. Oitation ot chapter.
"SEC. 5841. REGISTRATION OF FIREARMS.

"(a)

CENTRAL

REorsTBY. The Secretary or his delegate shall main-

.
·
•
•
ta.:m a, centra1 registry 0 f a 11 firearms lll the Uruted S tateS W hiCh are

not in the possession or wider the oontrol of the United States. This
registry shall be known as the National Firearms Registration and
Transfer Record. The registry shall includ&" ( 1) identification of the firearm;
" ( 2) date of registration ; and
"(3) identification and address of person entitled to possession
of the firearm.
"(b) BY WHOM REGISTERF.D.-Ea.ch manufacturer, importer, and
maker shall register each firearm he manufactures, imports, or makes.
Each ffre~um transferred shall be registered to the transferee by the
tra.nsferor.
"(c) How REOISl"ERED.-Each manufacturer shall notify the Secretary or his delegate of the manufacture of a .fireann in such manner as
may by regulations be prescribed and such notification shall efiect the
registrtition of the firearm required by this section. Each importer,
maker, and transferor of a firearm sha.11 2 prior to importing, making,
or trnnsferring a firearm, obtain authortzation in such manner as required by tl1is chapter or regulations issued thereunder to import,
make, or transfer the firearm, and such authorization shall effect the
re~istration of the firearm required by this section.
'(d) FIREARMS REOISTERED ON EFFECTIVE DATE OF Tms Am:.-A
person shown as possessiug a firearm by the records maintained by the
Secretary or his delegate pursuant to the National Firearms Act in
force on the day immediately prior to the effective date of the N atfonal
Firearms Act of 1968 sba1l be considered to ha.,re registered under this
section the firearms in his possession which are disclosed by that record
as being in his possession.
"(e) PROOF OF REGISTRATION.-A person possessing a.firearm registered as required by this section .shall retain proof of registration
which shall be made available to the Secretary or his delegate upon
request.

Netlonal

Fir~-

arms Registration

and Trans!er Record.

68A Stat. 721;
72 Stat. 14 28 .
26

use

s801 -

S862 .
Poat, p , 1235.

Exhibit A, Pg. 305

1230

PUBLIC LAW 90-618-0CT. 22, 1968

(82 STAT.

"SEC. 5842. IDENTIFICATION OF FIREARMS.

" (a) InENTIFICATION OF FIREARMS OrHER THAN DEsTRUOl'IVE
DEVICF.S.-Each manufacturer and importer and anyone making a firearm shall identify each :firearm, other than a destructive device, manufactured, imported or made by a serial number which may not be
readily removed, oblltera.ted, or altered, the name of the manufacturer,
importer, or maker, and such other identification as the Secretary or
his delegate may by regulations prescribe.
"(b) FIREARMS vVrTHOUT SERIAL NtrMUER.-Any person who possesses n firearm, other thnn n destructive device, which does not bear the
serial number and other information required by subsection (a) of this
section shall identify the firearm with a serial number assi!med by the
Secretary or his de1ega.te and any other information the ~cretary or
his delegate may by regulations prescribe.
"(c) IBENTLFICATION OF D't~TRUCTIVE DEVTCE.-Any firearm classified as a destructive deNice shall be identified in such manner as the Secreta.ry or his delegate may by regulations prescribe.
"SEC. 5843. RECORDS AND RETURNS.

"Importers, manufacturers, and dealers shall kee!J such records of,
and render such returns in relation to, the importation, manufacture,
making, re<"eipt1 and sale, or other disposition, of firearms as the Sacretary or his delegate may by regulations p1'0scribe.
"SEC. 5844. IMPORTATION.

"No firearm shall be imported or brought into the United States or
nny territory under its control or jurisdict10n unless the importer establishes, under regulations as m~y be prescribed by t~1e .Secretary or his
delegate, thrut the firearm to be 1mported or brought mis" ( 1) being imported or brought fa for the use of the United
States or any department, independent establishment, or agency
thereof or any State or pos.session or any political subdivision
thereof; or
"(2) being imported or brought in for scientific or research purposes; or
~' (3) being imported or brought in solely for testing or use as a
model by n registered manufacturer or solely for use as n sample
by a registered importer or registered dealer;
except that, the Secretary or his delegate may permit the conditional
importation or bringing m of a firearm for examinat.ion and testing in
connection with classifying the fl.r earm.
"SEC. 51345. DEFINITIONS.

"For the purpose of th is chapter" (a) FIREARM.-The term 'firearm' means (1) n shotgun having a
barrel or barrels of less than 18inchesin1enJ?th; (2) a 'veapon made
from a shotgun if such weapon as modified nas an overa_ length of
ll
less than 26 inches or a. barrel or barrels of less than 18 inches in length;
( 3) a rifle having a barrel or barrels of less than 16 inches in length;
( 4) a weapon made from o. rifle if such weapon ns modified hns nn
overa11 length of Jess thnn 26 inches or a barrel or barrels of Jess than
16 inches in len~h; (5) an~ other weapon, as defined in subsection
(e); (6) a macliinegun; (7) a muffier or a silencer for any firearm
whether or not such firearm is included within this definition ; and ( 8)
a destructive device. The term 'firearm' shall not include an antique
firearm or any device (other than a machinegun or destructive device)
which, although designed as a. weapon, the Secretary or bis delegate
finds by reason of tlie date of its manufacture, value, design, and
other characteristics is primarily a collector's item and is not likely
to be used as a weapon.

Exhibit A, Pg. 306

82

STAT.

J

PUBLIC LAW 90-618-0CT. 22, 1968

1231

"(b) MAoHTNEGUN.-The term 'machinegun' means any weapon
which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more thn.n one shot, without manual reloading, by a
single function of the trigger. The term shall also include the frame
or receiver of any such weapon, any combination of parts designed
and intended for use in converting a weapon into a machinegun, and
any combinaition of parts from wliich a machinegun can be assembled
if such parts are in the possession or under the control of a person.
" (c) RIFLE.-The term 'rifle' means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and
designed or redesigned and made or remade to use the energy of the
c·xpfosive in a fixed cartridge to fire only a single projectile through
a rifled bore for each single pull of the trigger, and shall include any
such weapon which may be readily restored to fire a fixed cartridge.
''(d) SHorouN.-The term 'shotgun' means a weapon designed or
tedesigned, made or remade, and intended to be fired from the shoulder
nnd designed or redesigned and made or remade to use the energy of
the explosive in a fixed shotgun shell to fire through a smooth bore
either a number of projectiles (ball shot) or a single projectile for each
pull of the trigger, and shall include any such weapon which may be
ieadily restored to fire a fixed shotgun she11.
"(e) ...\.Ny OTHER WEAPO~.-The term 'any other weapon' means any
weapon or device capable of beiug concealed on the person from which
u shot can be discharged through the energy of an explosive!. a pistol or
revolver having a barrel with a smooth oore designed or redesigned to
fire a fixed shotgun shell, weapons with combi11at10n shotgun and rifle
barrels 12 incl1es or more, less than 18 inches length, from which 011ly
a single discharge can be ma.de from either barrel without manual
reloading, and sluill include a.ny such weapon which may be readily
restored to fire. Such term shall not include a pistol or a revolver having
a rifled bore, or rifled bores, or weapons designed, ma.de, or intended to
be fired from the shoulder and not capable of firing fixed ammunition.
"(f) DESTRUCTIVE DEvicE.-The term. 'destructive device' means (1)
any explosive, incendiary, or poison gas (A) bomb, (B) grenade,
(C) rocket hn.ving a propeUent charge of more than four ounces, (D)
missile having an explosive or incendiary charge of more than onequarter ounce, (E) mine, or (F) similar devrne; (2) any type of
weapon by whatever name known which will, or which may be readily
converted to, expel a projectile by the action of an explosive or other
propellant, the barrel or barrels of which have a bore of more than
one-l1a]f inch in diameter, except ~\ shotgun or shotgun shell which the
Secretary or his delegate finds is generally recogruzed as particularly
suitable for sport~ purposes; and (3) any combination of parts
either designed or intended for use in convertin1 any device into 11
destructive device as defined in subparagraphs (1 and (2) and from
which a destructive device may be readily assemble . The term 'destructive device' shall not include any device which is neither designed nor
redesigned for use as a weapon; any device although originally
designed for use as a weapon, which is redesigned for use R.s a signaling,
pyrotechnic, line throwing, safety, or similar device; surplus ordnance
sold, loaned, or given by tlle Secretary of the Army pursuant to the
provisions of section 4:684:(2), 4:685, or 4686 of title 10 of the United
States Code; or any other device which the Secretary of the Treasury
or his delegate finds is not likely to be used as a weapon, or is an
antique or is a rifle which the owner intends to use solely for sporting
purposes.
"(g) ANTIQUE FntEAR.r.t:.-The term 'antique firearm' means any
firearm not designed or redesigned for using rim fire or conventional

m

70A Stat. 263.

Exhibit A, Pg. 307

1232

PUBLIC LAW 90-618-0CT. 22, 1968

[82

STAT.

center fire ignition with fixed ammunition rrnd manufactured in or
before 1898 (including any ma.tchloclc flintlock, percussion C.'lp, or
similar type of ignition system or repllca thereof.,, whether actually
mnnu:factured before or after the year 1898) and also any firearm
using fixed ammunition manufactured in or before 1898, for which
anummition is no Jon~er manufactured in the United States and is
not readily available m the ordinary channels of commercial trade.
"(h) UNSERVtCE.\BLE FtKEAroc.-The term 'unserviceable fireann'
means a firearm which is incapable of discharging a shot by means of
nu explosive and incapable of being readily restored to a fuing condition.
"(i) MAKE.-The term 'make', and the various derivatives of such
·word, shall include manufacturing (other than by one qualified to
engage in such business under this chapter), putting together, alter.in~, any combination of these, or otherwise producing a firearm.
· (j) ThANSFER.-The term 'transfer' and tl1e various derivatives of
such word, shall include selling, assigning, pledging, leasing, loaning,
giving away, or otherwise disposinu of.
"(k) DEALER.-The term 'deale:i means any person, not a manufacturer or importer, engaged in the business of selling, renting, leasing, or loaning firearms and shall include PM"nbrokers who accept
firearms as collateral for loans.
"(l) hcPOR'tER.-The term 'importer' means any person who is
engaged in the business of importing or bringing firearms into the
United States.
"(m) MANUFACTUREn.-The term 'manufacturer' means any person
who is engnged in the business of manufacturing firearms.
"SEC. 5846. OTHER LAWS APPLICABLE.
72 Stat. 1313.
26 use soo1.

5692.
Post. p. 1235.

".All provisions of law i·elating to special taxes imposed by chapter
51 and to engraving, 1ssuance, sale, accountability, cancellation, and
distribution of staml?s for tax payment shall, insofar as uot inconsistent with the provisions of this chapter, be applicable with respect
to the taxes imposed by sections 5801, 5811, and 5821.
"SEC. 5847. EFFECT ON OTHER LAWS.

68 Stat. 848.
22 use 1934.

"Nothing h1 this chapter shall be constn1ed M modifying or affecting the requirements of section 414 of the Mutual Security Act of 1954,
as amended, with respect to the manufacture, exportation, and importation of arms, ammunition, and implements of war.
"SEC. 5848. RESTRICTIVE USE OF INFORMATION.

"(a) GENERAL RULE.-No informntion or evidence obtained from
application, registration, or records required to be submitted or
retained by a. natural J,?erson in order to comply with any provision
of this chapter or reguJatious issued thereunder, shnll, except M provided in subsection (b) of this section, oo used, directly or indirectly, as
evidr,nce ngainst that person in a criminal proceeding with respect to
a violation of law occurring prior to OI" concurrently with the filing
of the application or registration, or the compiling of the records containing the information or evidence.
"(b) FURNISHING FALSE INFORMATION.-Subsection (a) of this section shall not preclude the use of any such information or evidence
in a prosecution or other action under any applicable provision of
law with respect to the furnishing of false information.
m1

"SEC. 5849. CITATION OF CHAPTER.

"This chapter may be cited as the 'National Firearms A.ct' and any
reference in any other provision of law to the 'National Firearms Act'
shaU be held to refer to the provisions of this chapter.

Exhibit A, Pg. 308

82 STAT.]

1233

PUBLIC LAW 90-618-0CT. 22, 1968

"PART II-EXEMPTIONS
"Sec. 5851. Elpeclal {occupational) tnx exemption.
"Sec. 5852. General transfer and maJd.ng exemption.
"Sec. 58.53. Exem11tion trom transfer and makiug tnx availllble to
certn in governmental entitles and officiala.
•·sec. U8(;4. Exportation of firearms exempt from transfer ta.x.
"SEC. 5851. SPECIAL (OCCUPATIONAL) TAX EXEMPTION.

"(a) BusmE.Ss \.VrrR UN1n:n ST.\TF.s.-Any person required to ptiy
special (occupational) htx under section 5801 shall be relieved from
payment of that tax if he establishes to the satisfaction of the Secretary or his delegate that his business is conducted exclushrely with, or
cm beha.lf of, the U llited States or any depu.rtment, independent estahlishment, or flgency thereof. The Secretary or his dele~ate may relieve
any person roluiufnctfil·ing .firearms for1 or on behnlr of, the United
St1\tes from complinnce with any provis1ou of this chapter iu the conduct of such busmess.
"(b) AJ>nrcATION.-The exemption provided for in subsection (a)
of this section mu.y be obtained by filing with the Secretary or his delegate an application on such form and containing such information as
may by regulations be prescribed. The exemptions must thereafter be
renewed on or before .July 1 of ench year. Approval of the application
by the Secretary or his de)ego..teshaUentitle the applicant to the exemptions stated on the appro\•ed application.

Renew el.

"SEC. 5852. GENERAL TRANSFER AND MAKING TAX EXEMPTION.

"(a) 1.'RANSFER.-Any firearm may be transferred to the United
States or any departmentl independent establishment, or agency
thereof, wit11out payment or the transfer tax imposed by section 5811.
"(b) M.\KJNG nY ·' PERSON O·rRER TuAN A QuALn'reo MANU1''AC'rURER.-Any fimarm mn.y be made by, or on behalf of, the United
States, or tu1y deportment, independent establishment, or agency
thereof, without pa.yment of the mtllcing tax imposed by section 5821.
"(c) M.\KINO BY .\ QuALIFTh"D MANCTACTURER.- A manufacturer
qualified under this clrnpter to engage in such business may make the
type of firearm which he is qualified to manufacture ,vithout.. payment
of the makil1g tax imposed by section 5821.
"(d) TRANS}'E&'i BE1'WF.EN SPECIAL (OCCUPATIONAL) TAX.PAYE.RS..\. .firearm registered to a person qualified tmder this chapter to engage
in business as an import~r, runnufacturer, or dealer ma.y be transferred
by that person without payment of the trausfer tax imposed by section 5811 to any other person qualified under this chapter to manufacture, impo11:, or dea.l in that type of .firearm.
"(e) UxSERVICK\BLE FIREARM.-An unserviceable firearm mny be
transferred ·as a curio or ornament without payment of the transfer
tax imposed by section 5811, under such requirements as the Secretary
or his delegate may by regulations prescribe.
" ( f) RtoRT TO EXEMF.l'ION.-No firearm may be transferred or made
exempt from tax under the provisions of this section unless the transfer or making is performed pursuant to an application in such form
nnd manner as the Secretory or his delegate may by regulations.
prescribe.
"SEC. 5853. TRANSFER AND MAKING TAX EXEMPTION AV.AIL.ABLE TO
CERTAIN GOVERNMENTAL ENTITIES.

"(a) 'TRANSFER.-A firearm may be transferred without the payment of the transfer ta.x imposed by section 5811 to any State, possession of t.he United States, any political subdjvision thereof, or any
o~~h!af?lice ~rga~zation of such a government entity engaged in
er
mvest1gations.
"(b) :M:Axrno.-A fuearm mny be mnde without payment of the
making tax imposed by section 5821 by, or on behalf of, any State, or

Exhibit A, Pg. 309

1234

PUBLIC LAW 90-618-0CT. 22, 1968

[82

STAT.

posses.sion of t11e United States, any political subdivision thereof, or
any official police organization of such a government entity engaged
in criminn1 investigations.
" ( c) RIGHT TO EXEMPTioN.-No firearm may be transferred or made
exempt from tax under this section unless the transfer or making is
performed pursuant to an application in such form and manner as the
Secretary or his delegate ma.y by regulations prescribe.
"SEC. 5854. EXPORTATION OF FffiEARMS EXEMPT FROM TRANSFER
TAX.

"A. firenrm may be exported without payment of the transfer tax
imposed under section 5811 provided tha.t proof of the exportation is
furnished in such form and mnnner as the Secretary or his delegate
ma.y by regulations prescribe.

"Subchapter C-Prohibited Acts
"SEC. 5861. PROHJBITED ACTS.

"It shall be unlawful for any person-

Ante, p , 1229.

" (a} to engage in business as a manufacturer or importer of,
or dealer in, firearms without having paid the SJ>ecial ( occupational) tax required by section 5801 for his busmess or havmg
re?iistered as required by section 5802; or
'(b) to receive or possess a firearm transferred to him in violation of the provisions of tJ1is chapter; or
" ( c} to recei''e or possess a firearm made in violation of the
provisions of this chapter; or
" ( d) to receive or possess a. firearm which is not registered to
hlm in the National Firearms Registration and Transfer Record;
or
" ( e) to transfer a firearm in violation of the provisions of this
chapter; or
·
ci (f) to make a firearm in violation of the provisions of iliis
chai;>ter; or
"(g) to obliterate, ~ove, change, or ruter the serial number or
other identification of a firearm required by this cha.pter; or
"(h) to receive or possess a firearm ha.vin.g the serial number or
other identification required by this chapter obliterated, removed,
chainged, or altered; or
"(i) to receive or J.><>$0SS a firearm which is not identified by a
serial number as requued by this cha:pter; or
"(j) to transport, deliver, or receive any firearm in interstate
commerce which has not been registered as required by this chapter; or
"(k) to receive or possess a firearm which has been imported or
bro~ht into the Uruted States in violation of section 5844; or
"(l) to make, or cause the making of, a false entry on any
application, retu·rn, or record required by this chapter, knowing
such entry to be false.

"Subchapter D-Penalties and Forfeitures
"Sec. :>$71. Penaltle~.
"See. :$872. Forfeiturei:.

"SEC. 5871. PENALTIES.

"Any person who vio1:ltes or fails to comply with any provision of
this chapter shnll, upon conviction, be fined not more than $10,000,
or be imprisoned not more than ten years, or both, and shall become
eligible for parole as the Board of Parole shall determine.

Exhibit A, Pg. 310

82 STAT.]

1235

PUBLIC LAW 90-618-0CT. 22, 1968

"SEC. 5872. FORFEITURES.

"(a) T.1AWS APPLICABLE.-Any firearm iurnlved in any violation of
the pro,·isions of tJ1js chapter shall be subject to seizure and forfeiture,
and (except as provided rn subsection (b)) all the provisions of internal revenue Jaws relating to searches, seizures, and forfeitures of
unstam1>ed articles iwe extended to and made to apply to the articles
hixed under this chapter, iUld the persons to whom this cha.pter applies.
"(b) DisPOSAL.-ln the cilse of the forfeiture of any firearm by
reasou of a violation of this chapter, no notice of public sale shall be
required; no such firearm shall be sold iit public sale; if such firearm is
forfeited for a viohition of this chapter and there is no remission or
miti~ation of forfeiture thereof, it shall be deJivered by the Secretary
or his delegllte to the .Administrator of Genel'tll Services, General
Services Administration, who may order such firearm destroyed or
may sell it to any State, or possession, or political subdivision thereof,
or at the request of the Secretiiry or his delegate, may autl1orize its
retention for official use of the Treasury Department, or may transfer
it without charg-e to nny executive department or independent establishment of the Government for use by .rt."
SEO. 202. The amendments made by section 201 of this title shall be
cited as the "National Firearms Act. Amendments of 1968".
SEc. 203. (a) Section 6107 of the Internal Revenue Code of 1954 is
repealed.
(b) Tl1e table of section!;; for subchapter B of chapter 61 of the
Internnl Revenue Code of 1054 is amended by striking out:

cttauon or
amendment • ·
Repeat.
68A Stat. 756.

26 use 6107.

"See. 6107. List of special taiqmyers !or pul>llc inspection."

SEC. 204. Section 6806 of the Internal Revenue Code of 1954 is
amended to read as follows:
"SEC. 6806. OCCUPATIONAL TAX STAMPS.

"Every person engaged in ai1y business, avocation, or employment,
who is thereby made liable to a .special tnx (other than a special tax
under subcl111.pter B of chapter 351 under subchapter B of chapter 36, 44 ~~~ 1441i6 3
4
or under subtitle E) shaJJ place and keep conspicuously in his estab- soo1~ss62."
•
1ishm1>nt. or place of business all stamps denoting payment of such
special tax."
SEc. 205. Section '7273 of the Internal Revenue Code of 1954 is
amended to read as follow.s :

i:

"SEC. 7273. PENALTIES FOR OFFENSES RELATING TO SPECIAL TAXES.

"Any person who shall fail to :(>lace and keep stamps denoting the
payment of the special tax as provided in se~tion 6806 shall be liable to
a. penalty (not less than $10) equal to the sv.ecial tax for which his business rendered him liable, unless such failure i.s shown to be due to
reasonable cause. If such failure to comply with section 6806 is through
wilJfnl neglect or refusal, then the penalty shall be double the amount
above prescribed."
SEC. 206. (a) Section 5692 of the Internal Revenue Code of 1954 is
repealed.
(b) The table of sections for part V of subchapter J of chapter 51
of tl1e Internal Revenue Code of 1954 is amended by striking out:

Repeal.
72 Stat. 1413.

"Sec. IS692. Penalties relatlng to posting ot special tax stamps."

S:ric. 207. (a) Seetfon 201 of this title shall take effect on the first
day <>f the first month following the month in which it is enacted.
(b) Notwithstnnding the provisions of subsection (a) or any other
prov1sion of law, any person possessing a firearm as deflned in section
5845(a) of the Internal Revenue Code of 1954 (as amended by this
tit.le) which is not registered to him in the National Firearms Registra-

Effective date1t.

Ante, p. 1230.

Exhibit A, Pg. 311

1236

Ant,,, p.

PUBLIC LAW 90-619-0CT. 22, 1968

1229.

Effective d•te.

Publlcation in
Federal Register.

[82

STAT.

tion and Transfer Record shall 1~ister each .fireil.rm so possessed with
the Secretary of the Treasury or Ins delegate in such form and manner
ns the Secret~iry or his delegMe mtty i-equire within the thh~ days
immediately followin1Y the effective dn,te of section 201 of this Act.
Such registrations shn'fi become 1i part of ·the National Firearms Registration and Transfer Record required to be maintn.ined by section
5841 of the I.nternnJ Revenue Code of 1954 (as amended by this tit le) .
Xo infonnation or evidence required to be submitted or reta.ined by a
1rnttmtl person to register tt fire.um under this section shall be used,
directly or indirectly, as evidence against such person in any criminal
proceeding with respect to :i prior or concunent dolation of law.
(c) The amendments made by sections 202 through 206 of this title
shall tnke effect on the dMe of enaotment.
( d) The Secretiwy of the Treasury, nfter publication in the Federal
Register of his intention to do so, is tmthorized to establish such periods
of amnesty, not to excood ninety days in the case of any single period,
und immunity from liability during any such period, as the Secretnry
<lete1mines will contribute to the purposes of this title.
TITLE III-AMENDMENTS TO TITLE VII OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT Olf
1968

Ante, p. 236.

•'Felon-y. ''

Effeetive date.

SEc. 301. (a) Title VII of the Omnibus Crime Control tUld Safe

Stre~ts Act of 1968

(PublicL-aw 90-351) is amended(1) by striking out "other than honorably discharged" in section 1201, and substituting therefor "discharged under dishonorable conditions" ; and
(2) by striking out "other than honorable conditions" in subsections (a.) (2) and ~b) (2) of section 1202and substituting therefor in ench instance' dishonorable conditions~'.
(b) Section 1202(c) (2) of such title is amended to read as follows:
"{2) 'felony' means any offense punishable by imprisonment
for a. term exCeeding one year, but does not include a.n.Y. offense
(other than one involving a fire11inn or explosive) classified as a
misdemeanor under tl1e laws of a State and punishable by a term
of imprisonment of two years or less;".
SEc. 302. The a:me~dments made by paragraphs. ( 1) and (2) of
subsection (a) of section 301 shall take effect as of June 19, 1968.
Approved October 22, 1968.

Public Law 90-619
October 22. 1968

_£H . R. 1_4_o9_s__
_ __
J

T...,es.
Wine splrlts.
72 Stat. 1382.
26 USC 5373.

.AN .ACT
To amend the Internal Revenue Code of 1954 so as to make certain changes to
facilitate the production of wine, and for other purposes.

B e it enacted. by tM Senate and House of Representatives of tlte
United States of America in Cong1·ess assembled, That the first sentence of section 5373(a) of the Internal Revenue Code of 1954 (relating to wine spirits) is amended to read as follows: "The wine
spirits authorized to be used in wine production shall be brandy or
wine spirits produced in a distilled spirits plant (with or without the
use of water to facilitate extraction and distillation) exclusively from" (1) fresh or dried fruit, or their residues,
"(2) the wine or wine residues therefrom, or
" ( 3) special natural wine under e:uch conditions as the Secretary
or his delegate may by re~ations })rescribe;
except that where, in the proouction of natural winn or Exhibit A, Pg. 312
special natural

Exhibit 20
(26 C.F.R. § 179.120)

Exhibit A, Pg. 313

CODE
OF FEDERAL

h
,

REGULATIONS

TITLE 26

Parts 170 to 299
Revised as of January l, l 969

CONTA!NING A CODIFICATION OF DOCUMENTS OF GENERAL APPLICABILITY AND
FUTURE EFFECT AS OF JANUARY 1 , 1969

With Ancillaries

P~bl is hecl

by the Offi ce of the Feclerol

Regis!er, Nctionol Ard1 iv es a nd

Records Service

General Ser vices Adm inis tration , as a Spec ial Edition of the Federal Register

Pursuant to

Sec~ion

11

of the Fed eral Regi s ter >,,t as Amended

Exhibit A, Pg. 314

(

1

As of January 1, 1969
Title 26, Parts 170 to 299
Revised as of January 1, 1968
Replaced by This Volume

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1969

For sale by the Superintendent of Documents, U .S. Government Printing Office
Washington, D.C. 20402 - Price $3.50 (paper cover}

Exhibit A, Pg. 315

Title 26--Chapter I

§ 179.122

Ce) A firearm not identified as required
179.100 shall be followed in a tax-exempt ·
transfer of a firearm under this section. by this part shall not be registered.
[T.P. 6979, 33 F.R. 15907, Oct. 29, 1968J

[T.D. 6979, 33 F.R. 15907, Oct. 29, 1968)

Subpart F-Registration and Identification of Firearms

§ 179.121

§ 179.120 Registration of firearms.
(a) The Director shall maintain a central registry of all firearms in the United
states which are not in the possession of
or under the control of the United States.
This registry shall be known as the National Firearms Registration and Transfer Record and shall include:
(1) Identification of the firearm as
required by this part;
(2) Date of registration; and
(3) Identification and address of person entitled to possession of the firearm
as required by this part.
(b) Each manufacturer, importer, and
maker shall register each firearm he
manufactures, imports, or makes in the
manner prescribed by this part. Each
'f irearm transferred shall be registered
to the transferee by the transferor in the
manner prescribed by this part. Any person possessing a firearm which is not regj.stered to him in the National Firearms
Jtegistration and Transfer Record shall
register such firearm during the period
November 2, 1968, through December 1,
l968, in the manner prescribed in Subpart O of this part. No firearm may be
.registered by a person unlawfully in possession of the firearm after December 1,
l968, except that the Director, after publication in the FEDERAL REGISTER of his
Jntention to do SO, may establish periods
Qf amnesty, not to exceed ninety (90>
days in the case of any single period with
such immunity from liability as the Director determines will contribute to the
purposes of this part.
· Cc) A person shown as possessing firearms by the records maintained by the
'.Director pursuant to the National Firearms Act (Chapter 53, I.R.C.) in force on
October 31, 1968, shall be considered to
have registered the firearms in his possession which are disclosed by that record
as being in his possession on October 31,
1968.
.
(d) A person possessing a firearm registered as required by this section shall
retain proof of registration which shall
be made available to the Director upon
request.

Identification of firearms.

Each manufacturer, importer, or maker of a firearm, other than a destructive
device, shall identify it by stamping <impressing) . or otherwise conspicuously
placing or causing to be stamped <impressed) or placed on the frame or receiver thereof, in a manner not susceptible of being readily obliterated or altered, the name and location of the manufacturer and importer, if any, and the
serial number, caliber or gauge, and
model of the firearm. None of the data
indicated may be omitted except with the
approval of the Director. A destructive
device shall be identified in the manner
prescribed by this section, except that if
such identification is not practical it may
be identified in any manner acceptable
to the Assistant Regional Commissioner.

n

r
!
I•

[T.D. 6979, 33 F.R. 15907, Oct. 29, 1968)

§ 179.122 Registration of firearms manufactured.

Each manufacturer qualified under
this part shall execute and file with
the Director an accurate return on Form
2 <Firearms) setting forth the name,
address, class of business <i.e. Class 2
Manufacturer or Class 5 Manufacturer>,
and special <occupational) tax stamp
number of the manufacturer, the date
of manufacture, and the type, model,
length of barrel, caliber, gauge, or size,
the serial numbers of the firearms he
manufactures, and the place where the
manufactured firearms will be kept.
All firearms manufactured by him during a single day shall be included on one
return, Form 2 <Firearms) , filed by the
manufacturer no later than the close of
the next business day. The manufacturer
shall prepare the return, Form 2 <Firearms), in duplicate, file the original
return as prescribed herein and keep
the copy with the records required by
Subpart H of this part at the premises
covered by his special tax stamp. Receipt
of the return, Form 2 (Firearms}, ·by
the Director shall effectuate the registra.tion to the manufacturer of the firearms
listed on that form. The requirements of
this part relating to the transfer of a

93

Exhibit A, Pg. 316

..
·~

i·

'

Title 26-Chapter I

§ 179.171

address of the purchaser, and shall be
signed in ink by the purchaser.
§ 179.171

+·;

Subpart M-Penalties and Forfeitures
Any person who violates or fails to
comply with the requirements of Chapter 53, Internal Revenue Code of 1954,
and the provisions of this part, shall upon
conviction, be subject to the penalties
imposed under section 5871, Internal
Revenue Code of 1954.

§ 179.190

Stamps authorized.

Adhesive stamps of the $5 and $200 denomination, bearing the words "National
Firearms Act," have been prepared and
distributed to District Directors, and
only such stamps shall be used for the
payment of the transfer tax and for the
tax on the making o! a firearm.

[T.D. 6979, 33 F.R. 15908, Oct. 29, 1968]

[20 F.R. 6739, Sept. 14, 1955, as amended by
T.D. 6557, 26 F.R. 2410, Mar. 22, 1961]

§ 179.172

§ 179.191

Reuse of stamps prohibited.

Subpart L-Redemption ·o f or Allowance for Stamps or Refunds

!

I
I

!

i
•

§ 179.180 Redemption of or allowance
for stamps.

Where a "National Firearms Act"
stamp is destroyed, mutilated or rendered
useless after purchase, and before liability has been incurred, such stamp may
be redeemed by giving another stamp in
lieu thereof or by refunding the amount
or value thereof. Claim for redemption of
the stamp should be filed on Form 843
with the appropriate District Director of
Internal Revenue. Such claim must be
accompanied by the stamp or by a satisfactory explanation of the reason why
the stamp cannot be returned and must
be filed within 3 years after the purchase
of the stamp (sec. 6805, I.R.C., 1954).

[T.D. 6979, 33 F.R. 15908, Oct. 29, 1968]

Subpart N-Other Laws Applicable
§ 179.195 Applicability of other provi·
sions of internal revenue laws.

All of the provisions of the internal
revenue laws not inconsistent with the
provisions of Chapter 53 of the Internal
Revenue Code of 1954 shall be applicable
with respect to the taxes imposed by sections 5801, 5811 and 5821 of said Code
(see section 5846, I.R.C., 1954).

[T.D. 6979, 33 F.R. 15908, Oct. 29, 1968]

§ 179.181

Forfeitures.

Any firearms involved in any violation
of the provisions of Chapter 53, Internal
Revenue Code of 1954, or of the regulations in this part, shall be subject to seizure or forfeiture under the internal revenue laws: Provided, however, That the
disposition of forfeited firearms shall be
in conformance with the requirements of
section 5872 of the Internal Revenue
Code of 1954. In addition, any vessel, vehicle or aircraft used to transport, carry,
convey, or conceal or possess any firearm with respect to which there has been
committed any violation of any provision of Chapter 53, Internal Revenue
Code of 1954, or the regulations in this
part issued pursuant thereto, shall be
subjected to seizure and forfeiture under
the Customs laws, as provided by the act
of August 9, 1939 (U.S.C. Title 49, secs.
781-:788).

A stamp once affixed to one instrument
cannot lawfully be removed and affixed
to another. Any person wilfully reusing
such a stamp shall be subject to the
penalty prescribed by section 7208 o! the
Internal Revenue Code of 1954.

'

Penalties.

Refunda.

As indicated in this part, the transfer
tax or tax on the making of a firearm is
ordinarily paid by the purchase and affixing of stamps, whlle special <occupational) tax stamps are issued in payment
of special taxes. However, in exceptional
cases, such taxes may be paid pursuant
to assessment. Claims for refund of
amounts so paid must be presented to
the District Director on Form 843 within
three years next after payment of the
taxes <sec. 6511, I .R.C. 1954).

S.ubpart 0-Special Registration
SouRcE: The provisions o! this Subpart 0
contained In T.D. 6979, 33 F.R. 15909, Oct. 29,
1968, unless otherwise noted.

§ 179.200

Registration requirement.

Any person possessing a firearm which
is not registered to him in the National
Firearms Registration and Transfer Record maintained by the Director shall reg-

(20 F.R. 6739, Sept. 14, 1955, as amended by
T.D. 6557, 26 F.R. 2410, Mar. 22, 1961}

98

Exhibit A, Pg. 317

Title 26-Chapter I

with respect to a prior or concurrent violation of law: Provided, however, That
the provisions of this section shall not
preclude the use of any such information
or evidence in a prosecution or other
action under any applicable provision of
law with respect to the furnishing of
false information.

tster with the Director during the pei-lod
of November 2, 1968, through December 1, 1968 each firearm so possessed.
such registration of a firearm shall become a part of the National Firearms
Registration and Transfer Record maintained by the Director.
§ 179.201

§ 179.202

Registration procedure.

A person possessing a firearm not registered to him by the Director shall file
a registration return, Form 4467, in duplicate, with the Director within the period
of November 2, 1968, through December l, 1968. The use of information required to register a firearm under this
section shall be restricted as provided
in section 5848, Internal Revenue Code
of 1954, The return, Form 4467, shall
show the name, address, place of business or employment, employer identification number or social security number,
and date of birth of the registrant, the
date the firearm was acquired, the place
where the firearm usually is kept, the
name, and address of the manufacturer, the type, model, length of barrel, overall length <when applicable>, caliber or gauge, serial number, and other
identifying marks of the firearms, and if
an unserviceable firearm, the manner in
which it was rendered unserviceable.
Upon registering the firearm, the Director shall retain the original Form 4467 as
part of the National Firearms Registration and Transfer Record, and shall return the Form 4467 copy to the registrant
with notation that registration of the
firearm described on the Form 4467 has
been made. In the event the firearm does
not bear a serial number, the registrant
shall obtain a serial number for the firearm from the Assistant Regional Commissioner and shall stamp <impress> or
otherwise conspicuously place such serial
number on the firearm in a manner not
susceptible of being readily obliterated,
altered, or removed.

PART 186-GAUGING MANUAL
Subpart A-Scope of Regulations

Sec.
186.1

Gauging o! distilled spirits.

186.11

Meaning o! terms.

Subpart B--Definitions

Subpart C-Gauging Instruments

186.21 General requirements.
186.22 Hydrometers and thermometers.
186.23 Use o! precision hydrometers and
thermometers.
186.24 Use of U.S. standard hydrometers and
thermometers.
186.25 Gauging instruments o! unusual or
costly design.
Subpart D-Gauging Procedures

186.31
186.32

Determination o! proo!.
Determination ot proo! obscuration.
DETEIDllINATION OJ' QUANTITY

186.36 General requirements.
DETERKINATION OF QUANTITY l!Y WEIGHT

186.41
186.42
186.43
186.44
186.45

Bulk spirits.
Denatured spirits.
Packaged spirits.
Entry or filling gauge for packages.
Withdrawal gauge tor packages.

DETERMINATION

186.51

or QUANTITY l!Y VOLUME

Procedure tor measurement.
Subpart E-Prescribed Tables

186.61

Table 1, showing the true percent
of proof spirit tor any indication ot
the hydrometer at temperatures
between zero and 100 degrees
Fahrenheit.
186.62 Table 2, showing wine gallons and
proo! gallons by weight.
186.68 Table 3, !or determining the number
of proof gallons !rom the weight
and proof ot spirituous liquor.
186.64 Table 4, showing the :fractional part
o! a gallon per pound at each percent and each tenth percent ot
proo! of spirituous liquor.
186.65 Table 5, showing the weight per wine
gallon (at 60 degrees Fahrenheit)
and proof gallon at each percent of
proof o! spirituous liquor.

§ 179.202 Restrictive use of required
information.

No information or evidence required to
be submitted or retained by a natural
person to register a firearm under the
provisions of this subpart shall be used,
directly or indirectly, as evidence against
such person in any criminal proceeding

99

Exhibit A, Pg. 318

Exhibit 21
( Violating Due Process: Convictions Based on the
National Firearms Registration and Transfer Record
When its ‘Files are Missing’ )

Exhibit A, Pg. 319

Violating Due Process: Convictions Based on the National Firearms Registration
and Transfer Record when its "Files are Missing"

By
Joshua Prince
Copyright 2009

Exhibit A, Pg. 320
Electronic copy available at: http://ssrn.com/abstract=2752028

I. INTRODUCTION

Our Supreme Court declared, “A fair trial in a fair tribunal is a basic requirement
of due process….[O]ur system of law has always endeavored to prevent even the
probability of unfairness.”1 With this in mind, we turn to the current violation of due
process: convictions based on the National Firearms Registration and Transfer Record
when its “files are missing.”
This Article analyzes the issues surrounding the National Firearms Act [NFA], in
particular the National Firearms Registration and Transfer Record [NFRTR], and how
law-abiding citizens are being deprived of their Due Process rights, because of the
inaccuracy of the NFRTR, while the courts believe the NFRTR to be trustworthy. In
point of fact, in June 2007, the Bureau of Alcohol, Tobacco, Firearms, and Explosives
[BATFE] had lost all record of a registered firearm, which it had approved in April
2007.2 The NFRTR, established by the NFA and administered by the BATFE, has been
in disarray since the late 1970’s.3 In 1996, amid numerous complaints of unjust criminal
prosecutions by the BATFE, a citizen supplied reliable evidence, that raised doubts about
the accuracy and completeness of the NFRTR, to the House Subcommittee on Treasury,

1

Gutierrez De Martinez v. Lamagno, 515 U.S. 417, 428 (1995) (citing In re Murchison, 349 U.S.
133, 136 (1955); In re Murchison, 349 U.S. 133, 136 (1955)).
2
Letter to Mr. Kenneth E. Houchens, Chief National Firearms Act Branch, NFA Letter Control
Number [redacted], Title II Firearms Serial Number [redacted ], by Saeid Shafizadeh, (July 11, 2007),
available at http://www.nfaoa.org/documents/ParsLetter2007.pdf.
3
U.S. Dep’t of Justice, Criminal Div., Memorandum: Response to letter from Senator McClure, by
Philip B. Heymann and Lawrence Lippe, at 2-3 (Nov. 29, 1979), available at
http://www.nfaoa.org/documents/DOJamnestyMemo1979.pdf. The Bureau of Alcohol, Tobacco and
Firearms was renamed the Bureau of Alcohol, Tobacco, Firearms and Explosives under legislation which
transferred it from the Department of the Treasury to the Department of Justice on January 24, 2003. 6
U.S.C. § 531; 116 Stat. 2135 (2003).

2
Electronic copy available at: http://ssrn.com/abstract=2752028

Exhibit A, Pg. 321

Postal Service, and General Government, Committee on Appropriations, and then again
in 1997, after inaction by Committee, he complained to the House Committee on
Government Reform and Oversight, which ordered the Treasury Department Inspector
General to audit the NFRTR; resulting in two reports being rendered in 1998.4
While the BATFE continues to prosecute and convict individuals based on its
contention that their firearm registration records cannot be found within the NFRTR, the
BATFE also declared that errors in the NFRTR could result in the improper arrest,
prosecution, and conviction of an innocent person, who had simply lost his paperwork,
and for whom the agency had no records.5 Thus, it is imperative that our Judicial System
take action, and find, as a matter of law, that the NFRTR, in its current state, is not
sufficient in criminal and civil proceedings. Moreover, the United States Government
must take immediate action, in the form of an amnesty, to ensure that law-abiding
citizens are not convicted of Possession of Unregistered Firearms because the BATFE
lost his/her paperwork, although the individual properly registered the firearm, but
through no fault of his/her own, the paperwork was lost or destroyed.
4

U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 1997, Part 5, Testimony of Member of Congress and Other Interested
Individuals and Organizations, 104th Cong., 2nd Sess, at 37-274 (Washington, GPO, 1996), available at
http://www.nfaoa.org/documents/1996testimony.pdf; U.S. Department of the Treasury, Office of Inspector
General, Special Report on Allegations Concerning the Bureau of Alcohol, Tobacco, and Firearm’s
Registration and Recordkeeping of the National Firearms Registration and transfer Records, OIG-99-009,
at 1 (Washington, Oct. 26, 1998), available at http://www.nfaoa.org/documents/TreasuryOIG-99-0091998.pdf. The second report addressed other weaknesses in the NFRTR; see U.S. Department of the
Treasury, Office of Inspector General, Audit Report on Allegations Concerning the Bureau of Alcohol,
Tobacco, and Firearms’ Administration of the National Firearms Registration and Transfer Record, OIG99-018, (Washington, Dec. 18, 1998) available at http://www.nfaoa.org/documents/TreasuryOIG-99-0181998.pdf.
5
NFA Branch Chief memorandum to ATF Assistant Director for Technical and Scientific
Services, Purification and Verification of the National Firearms Registration and Transfer Record, Apr. 3,
1975, reproduced in Oversight Hearings on Bureau of Alcohol, Tobacco, and Firearms, Senate Committee
on Appropriations, 96th Cong., 1st Sess., at 42 (Washington, GPO, 1979), available at
http://www.nfaoa.org/documents/1979_Hearing_Excerpts.pdf.

3

Exhibit A, Pg. 322

A brief introduction is set forth in Section I. Section II is a background of the
firearm laws at issue, broken into the following subsections: A. the 1934 NFA; B.
BATFE; C. Gun Control Act [GCA] of 1968; D. 1968 Amnesty; E. the 1986 Firearms
Owners’ Protection Act [FOPA]; and F. NFA Registration Process and Penalties.
Section III explains the NFRTR. The emergence of the inaccuracy of the NFRTR
is discussed in Section IV., proceeded by Section V. depicting the numerous
Congressional Hearings and cases related thereto, which is broken down into the
following subsections: A. 1934-1980; B. 1980-1995; C. 1995-1998; D. 1998; E. 19992002; and F. 2003-2008. The absence of paperwork is not a defense is discussed in
Section VI. and is broken down into subsections: A. Error Letters; B. the BATFE’s
Improper Denial of Exculpatory Evidence; C. the Accuracy and Completeness of the
NFRTR; and D. Firearm Law Experts on the absence of paperwork as a defense and the
status of the NFRTR generally. The intersection of Procedural Due Process violations is
discussed in Section VII. and the Federal Rules of Evidence and the NFRTR follows in
Section VIII. The issue of the Confrontation Clause and the admission of the NFRTR as
evidence is discussed in Section IX. The solution, a new amnesty, is discussed, in depth,
in Section X and broken into the subsections of A. Judicial; B. Legislative; C. BATFE
Rationale for Refusing an Amnesty, and Rebuttals Thereof; and D. Amnesty. Lastly,
Section XI concludes this article.

II. Background

The background of the NFA, BATFE, GCA, 1968 Amnesty, and FOPA is a

4

Exhibit A, Pg. 323

complex and interesting situation involving an Administrative Agency, and its power to
prosecute violations of the statutes, outlined above, even when that agency acknowledges
that innocent individuals may be convicted.6
A. The National Firearms Act [NFA] of 1934

In 1933, after the attempted assassination of President-elect Franklin D. Roosevelt
and growing fears of organized crime’s increased prominence, the Congress sought
federal regulations on firearms.7 Introduced as H.R. 9066, the bill, which became the
NFA, originally sought to require registration of any “firearm, a term defined to mean a
pistol, revolver, shotgun having a barrel less than sixteen inches in length, or any other
firearm capable of being concealed on the person, a muffler or silencer therefore, or a
machine gun.”8 The term “machine gun” was defined as any weapon capable of firing
twelve or more shots without manual reloading.9
The Justice Department, aware of the growing concern over H.R. 9066, submitted
a substitute bill, H.R. 9741.10 H.R. 9741 required existing firearm owners to register their
arms within sixty days, except for firearm acquired after the effective date of the Act;
6

Id.
See ROBERT J. SPITZER, THE POLITICS OF GUN CONTROL 104 (CQ Press 2d ed. 1998); JOSH
SUGARMANN, NATIONAL RIFLE ASSOCIATION: MONEY, FIREPOWER, AND FEAR 29 (National Press Books
1992). For an excellent comprehensive history and analysis of the relevant social and legal issues during
this period, including an extensive discussion of NFA issues, see Thomas Earl Mahl, A History of
Individual and Group Action in Promoting National Gun Control Legislation During the Interwar Period,
1919-1941, unpub. Master of Arts thesis, Kent State University, August 1972,.
8
US Congress, House of Representatives, Committee on Ways and Means, National Firearms Act:
Hearings on H.R. 9066 before the House Comm. on Ways and Means, 73d Cong., 2d Sess., at 1
(Washington, GPO, 1934) (testimony of Attorney General Homer Cummings), available at
http://www.nfaoa.org/documents/NFA-1934house.pdf.
9
Id.
10
See U.S. Congress, House of Representatives, Committee on Ways and Means, National
Firearms Act: Hearings on H.R. 9066 before the House Comm. on Ways and Means, 73d Cong., 2d Sess.,
at 1 (Washington, GPO, 1934) (depicting the Department of Justice’s understanding that H.R. 9066 would
not be approved), available at http://www.nfaoa.org/documents/NFA-1934house.pdf.
7

5

Exhibit A, Pg. 324

whereas, H.R. 9066 would have only applied to firearms sold after its enactment.11
Worried that the bill would be found unconstitutional, because it violated the Second
Amendment, the Congress redrafted it to conform to the regulatory scheme of the
Harrison Anti-Narcotic Act of 1914, which was based on the taxing power and held to be
Constitutional.12 The Congress declared, “[I]t is important to be able to identify arms to
see which possessors have paid taxes and which firearms have been taxed and which
have not.”13
When H.R. 9741 was complete, the definition of “firearm” had drastically
changed. First, pistols and revolvers were omitted, thus limiting the Bill to machineguns,
sawed-off shotguns and rifles, silencers, and concealable firearms other than pistols and
revolvers.14 Second, the definition of “machinegun” was changed to cover firearms that
fired more than once for each single function of the trigger, regardless of munitions
capacity.15 Also, of particular interest, the transfer tax was fixed at two-hundred dollars,
which in 1934 was the retail price of a Thompson machinegun.16 The Congress, satisfied
with the enumerated changes, enacted the NFA.17
Thus, the NFA placed a tax on the manufacture and transfer of all machineguns,
short-barreled rifles and shotguns, silencers, and other concealable firearms, excluding

11

Id.; H.R. 9066 at 84. While H.R. 9741 eliminated a double registration requirement for those who
registered prior to the expiration of the sixty days, the exemption led to the registration requirement being
stricken as a violation of the firth amendment’s self incrimination clause some thirty-four years later. See
Haynes v. United States, 390 U.S. 85, 100.
12
H.R. 9066.
13
Id. at 87 (testimony of Ass’t Att’y Gen. Joseph Keenan).
14
H.R. Rep. NO. 1780, at 1. “Your committee is of the opinion that limiting the bill to the taxing of
sawed-off guns and machineguns is sufficient at this time. It is not thought necessary to go as far as to
include pistols and revolvers and sporting arms.” Id.
15
Id.
16
H.R. 9066 at 12.
17
26 U.S.C. §§ 5801-5872, 48 Stat, 1236.

6

Exhibit A, Pg. 325

handguns, identified as “any other weapon.”18 For a more comprehensive understanding
of what is being controlled, one must consider the definitions:
(a) Firearm. The term 'firearm' means (1) a shotgun having a barrel or
barrels of less than 18 inches in length; (2) a weapon made from a shotgun
if such weapon as modified has an overall length of less than 26 inches or
a barrel or barrels of less than 18 inches in length; (3) a rifle having a
barrel or barrels of less than 16 inches in length;19 (4) a weapon made
from a rifle if such weapon as modified has an overall length of less than
26 inches or a barrel or barrels of less than 16 inches in length20; (5) any
other weapon, as defined in subsection (e); (6) a machinegun; (7) any
silencer....and (8) a destructive device. The term 'firearm' shall not include
an antique firearm or any device (other than a machinegun or destructive
device) which, although designed as a weapon, the Secretary finds by
reason of the date of its manufacture, value, design, and other
characteristics is primarily a collector's item and is not likely to be used as
a weapon.21
(b) Machinegun. The term 'machinegun' means any weapon which shoots,
is designed to shoot, or can be readily restored to shoot, automatically
more than one shot, without manual reloading, by a single function of the
trigger. The term shall also include the frame or receiver of any such
weapon, any part designed and intended solely and exclusively, or
combination of parts designed and intended, for use in converting a
weapon into a machinegun, and any combination of parts from which a
machinegun can be assembled if such parts are in the possession or under
the control of a person.22
c) Rifle. The term 'rifle' means a weapon designed or redesigned, made or
remade, and intended to be fired from the shoulder and designed or
redesigned and made or remade to use the energy of the explosive in a
fixed cartridge to fire only a single projectile through a rifled bore for each

18

§ 5811
It should be noted that under the original NFA of 1934, the barrel length was 18 inches. In 1936,
the NFA was amended by changing the 18” barrel standard to 16” for rifles of .22 caliber or less. 49 Stat.
1192. In 1960, the definition was amended to “a rifle having a barrel or barrels of less than 16 inches in
length,” which was no longer caliber specific. 74 Stat. 149. For the hearings related to this amendment, see
United States Senate, Committee on Finance, H.R. 4029, 86th Cong., 2d Sess., (Washington, GPO, 1960),
available at http://www.nfaoa.org/documents/NFAamend1960.pdf.
20
This was part of the 1960 amendment, 74 Stat. 149, presumably to create an empirical standard
for “concealable,” a standard absent from the original NFA. For the hearings related to this amendment, see
United States Senate, Committee on Finance, H.R. 4029, 86th Cong., 2d Sess., (Washington, GPO, 1960),
available at http://www.nfaoa.org/documents/NFAamend1960.pdf.
21
26 U.S.C. § 5845(a); It should be noted that Destructive Devices were added by the Gun Control
Act of 1968, as was the “collector’s item” provision to remove a firearm from the NFA. 82 Stat. 1235, §
921.
22
§ 5845(b)
19

7

Exhibit A, Pg. 326

single pull of the trigger, and shall include any such weapon which may be
readily restored to fire a fixed cartridge.23
(d) Shotgun. The term 'shotgun' means a weapon designed or redesigned,
made or remade, and intended to be fired from the shoulder and designed
or redesigned and made or remade to use the energy of the explosive in a
fixed shotgun shell to fire through a smooth bore either a number of
projectiles (ball shot) or a single projectile for each pull of the trigger, and
shall include any such weapon which may be readily restored to fire a
fixed shotgun shell.24
(e) Any other weapon. The term 'any other weapon' means any weapon or
device capable of being concealed on the person from which a shot can be
discharged through the energy of an explosive,25 a pistol or revolver
having a barrel with a smooth bore designed or redesigned to fire a fixed
shotgun shell, weapons with combination shotgun and rifle barrels 12
inches or more, less than 18 inches in length, from which only a single
discharge can be made from either barrel without manual reloading, and
shall include any such weapon which may be readily restored to fire. Such
term shall not include a pistol or a revolver having a rifled bore, or rifled
bores, or weapons designed, made, or intended to be fired from the
shoulder and not capable of firing fixed ammunition.26
Since the NFA is part of the Internal Revenue Code, it created a regulatory
system, which taxed all aspects of the manufacture, importation, and distribution of the
above listed firearms, as well as some additional ones that were added during the 1968
Gun Control Act.27 More importantly, the NFA required the Secretary of the Treasury to
create a registry, known as the NFRTR, of all NFA firearms in the United States not
under the control of the United States Government.28 The most interesting aspect to
enactment of the NFA, pertinent to the NFRTR, is that during the 1934 Congressional
Hearings, Karl T. Frederick, then President of the National Rifle Association, declared,
[A]s a matter of human experience, the owner of a gun is going to lose
papers, they are going to get mislaid, they are going to get burned up, if he
cannot turn them up when required to do so he is liable to go to jail. I think
23

§ 5845(c)
§ 5845(d)
25
§ 5845(e)
26
Id. This provision, which was added by the Gun Control Act of 1968, was largely the result of
codifying previous rulings and was intended to bring statutory uniformity to the “any other weapon”
definition. 82 Stat. 1235, § 921.
27
§ 5802
28
§ 5841
24

8

Exhibit A, Pg. 327

there ought to be a simple method of obtaining a copy of that paper from
the authorities with whom the original was filed . . . . If not, in the actual
operation, you are going to create criminals.29
B. Bureau of Alcohol, Tobacco, Firearms, and Explosives [BATFE]
The history of the BATFE is traced back to the first federal tax on distilled spirits
in 1791.30 Since the NFA is ostensibly a tax provision, it was originally administered by
Miscellaneous Tax Unit [MTU] of the Department of the Treasury’s Bureau of Internal
Revenue [BIR].31 In 1942, the MTU’s NFA duties were reassigned to the BIR’s Alcohol
Tax Unit [ATU].32
Effective 1952, all firearm and tobacco programs were transferred to the Alcohol
and Tax Division [ATTD], when BIR was reorganized and renamed the Internal Revenue
Service [IRS].33 In the wake of the 1968 Gun Control Act, the ATTD assumed the
responsibility for explosives as well, and as a result, was renamed the Alcohol, Tobacco,
and Firearms Division [ATFD]; thereafter in 1972, it became a bureau and was
designated the Bureau of Alcohol, Tobacco and Firearms (ATF).34
With the passage of the Homeland Security Act, the Congress transferred the ATF
to the Department of Justice and renamed it the Bureau of Alcohol, Tobacco, Firearms
and Explosives [BATFE].35 The Secretary of the Treasury was replaced by the Attorney

29

U.S. Congress, House Committee on Ways and Means, H.R. 9066, 73rd Cong., 2nd Sess., at 57
(Washington, GPO, 1934), available at http://www.nfaoa.org/documents/NFA-1934house.pdf.
30
26 U.S.C. § 5001; http://www.atf.gov/about/atfhistory.htm. See also, Congressional Research
Service, Memorandum: ATF’s National Firearms Registration and Transfer Record: Issues Regarding
Data Accuracy, Completeness, and Reliability, by William J. Krouse, Nov. 28, 2005, at 3, available at
http://www.nfaoa.org/documents/CRSmemoNFRTR0001.pdf.
31
http://www.atf.gov/about/atfhistory.htm.
32
Id.
33
Id.
34
Id.
35
6 U.S.C. § 531; 116 Stat. 2135 (2003).

9

Exhibit A, Pg. 328

General as the federal official responsible for administering the NFA and maintaining the
NFRTR.36

C. The Gun Control Act [GCA] of 1968

Title II of the GCA, also termed the National Firearms Act of 1968, revised and
re-codified the NFA, resulting in: 1.) tightened controls on NFA firearms and devices;
particularly in the import restrictions for NFA items; 2.) the inclusion of “destructive
devices;” 3.) the codification of various rulings into a statutory definition of “any other
weapon;” 4.) the inclusion of “frame or receiver” of a firearm under the definition of a
machinegun; and 5.) a provision which authorized the administrative removal of any
firearm from the NFA, except a machine gun or destructive device, that was determined
by the Secretary of the Treasury to be mainly a “collector’s item” and not likely to be
used as a weapon.37 The GCA also increased the penalty for possessing an unregistered
NFA firearm to two years and/or ten thousand dollars.38 Furthermore, the Congress,
aware of the Supreme Court’s decision in Haynes v. United States, as well as other cases,
resolved the conflict by: (1) prohibiting any information required to comply with the
NFA to be used against a registrant or applicant “in a criminal proceeding with respect to
36

Id.
26 U.S.C. § 5845. The GCA, in remaining true to the original intent behind the NFA, limited
firearms thought to be used mainly by criminals by requiring registration of the firearms and using
prohibitive taxes to discourage their manufacture, distribution, and ownership. This was a comprehensive
strategy then, and remains so today.
38
S. Rep. NO. 1097, 90th Cong., 2d Sess. 25 (1967). The 2007 DOJ-OIG report declares,
“Possessing an unregistered NFA weapon or one that is registered to someone else is punishable by a
$250,000 fine and 10 years imprisonment. The NFA weapon is subject to forfeiture, and if convicted of a
criminal violation of the NFA the possessor will be prohibited from receiving or possessing firearms.” U.S.
Department of the Justice, Office of Inspector General, The Bureau of Alcohol, Tobacco, Firearms and
Explosives’ National Firearms Registration and Transfer Record, I-2007-006, at 3-4 (June 2007), available
at http://www.nfaoa.org/documents/DOJ-OIG2007NFRTRreport.pdf.
37

10

Exhibit A, Pg. 329

a prior or concurrent violation of the law;” (2) establishing an amnesty period, to allow
persons to register unregistered NFA firearms with full immunity from prosecution,
although such immunity did not apply to making false statements; 39 and, (3) prohibiting
the release of any information about the registration status or ownership of any NFA
firearm.40

D. 1968 NFA Amnesty

The GCA required ATF to establish a 30-day amnesty period beginning on the
second day of the first month after its enactment on October 22, 1968; consequently, the
amnesty was held from November 2, 1968, to December 1, 1968.41 In 1992, NFRTR
statistics obtained by a Freedom of Information Act (FOIA) request disclosed that 57,187
NFA firearms were registered in 1968; however, this number increased to 57,216, in
1995, and to 57,223 by 1996.42 This may be due, in part, to the BATFE (1) adding
firearms to the NFRTR after being confronted by NFA firearm owners with copies of
NFA registration paperwork, (2) adopting a policy to allow some U.S. service personnel
to register unregistered NFA firearms from 1969 to 1971, or later, without announcing

39

82 Stat. 1235, § 207(b), (d); Haynes v. United States, 390 U.S. 85 (1968) (holding that the
registration of NFA weapons would likely incriminate those individuals registering unregistered NFA);
Grosso v. United States, 390 U.S. 62 (1968); Marchetti v. United States, 390 U.S. 39 (1968).
40
The BATFE legal interpretation is that NFA paperwork is “tax return” information. 26 U.S.C. §
6103; Memorandum to ATF Director from Chief Counsel, re: Freedom of Information Act Request,
bearing symbols CC-18,778 RMT, (Aug. 18, 1980), available at
http://www.titleii.com/BardwellOLD/1980_auto_ord_memo.txt
41
82 Stat. 1235, § 207(b), (d).
42
Eric M. Larson, Errors in the National Firearms Registration and Transfer Record: A New
Amnesty Period May be Required to Correct Them, prepared for the Subcommittee on Treasury, Postal
Services, and General Government of the Committee on Appropriations, Apr. 8, 1997, available at
http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/rip/larson_study.txt. Mr. Larson is a
Senior Analyst with the U.S. Government Accountability Office.

11

Exhibit A, Pg. 330

such an amnesty period in the Federal Register, as required by law,43 and/or (3) as stated
by a BATFE employee, correctly filing a misfiled form could appear to increase the
number of registered firearms in that category, e.g., a Form 4467 registration being
misfiled as something else.44 An ancillary and troubling issue is the fact that ATF created
an unofficial program to allow the registration of thousands of unregistered NFA firearms
after the 1968 amnesty expired, in violation of its own published regulations at the time.45
There is virtually no legislative history for the amnesty provision under the NFA.
With the single exception of a statement that the Congress intended that “every firearm in
the United States should be registered to the person possessing the firearm” by December

43

82 Stat. 1235, § 207(b),(d); U.S. Department of the Treasury, Office of Inspector General,
Special Report on Allegations Concerning the Bureau of Alcohol, Tobacco and Firearm's Registration and
Recordkeeping of the National Firearms Registration and Transfer Records, Report No. OIG-99-009, at 13
(Washington, Oct. 26, 1998) available at http://www.nfaoa.org/documents/TreasuryOIG-99-009-1998.pdf;
U.S. Department of the Treasury, Bureau of Alcohol Tobacco, and Firearms, Unpublished Memorandum:
Freedom of Information Act regarding United States vs. Eighteen Various Firearms, by Peter J. Chisholm,
Mar. 24, 1998, p. 8, available at http://www.nfaoa.org/documents/Fassnacht.pdf. The underlying facts in
the court case, United States v. Eighteen Various Firearms, 148 F.R.D. 530 (E.D. Pa. 1993), are set forth in
this unpublished ATF Memorandum to the File dated January 15, 1993, obtained by the Freedom of
Information Act process. In 1969, CIA employee George Fassnacht sought to register unregistered NFA
firearms under the 1968 amnesty provision, ATF agreed, then in 1971 refused to allow the registrations
after the firearms were seized in a raid that was later found unconstitutional. Id. In 1993, ATF dropped its
objections and allowed the firearms to be registered after years of litigation. Id. "We reached this
conclusion," ATF stated, "only after months of researching every possible lead and finding only evidence
that Mr. Fassnacht had satisfied the requirements for persons seeking to register NFA firearms after the
November 1968 amnesty period [emphasis in original document]." Id. It should be noted that BATFE
should possibly be applauded for this action, since the 30 day registration period may have been too short.
Individuals on vacation or otherwise may not have heard of the Amnesty until it was too late.
44
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 1997, Part 5, Testimony of Member of Congress and Other Interested
Individuals and Organizations, 104th Cong., 2nd Sess., at 84 (Washington, GPO, 1996), available at
http://www.nfaoa.org/documents/1996testimony.pdf.
45
26 C.F.R. § 179.120 (1969), available at http://blog.princelaw.com/assets/2008/1/9/1969-CFRATF-amnesty-regs.pdf; U.S. Senate, Committee on the Judiciary United States Senate, Hearing on S. 914,
A Bill to Protect Owners’ Constitutional Rights, Civil Liberties, and Rights to Privacy, 89th Cong., 1st
Sess., at 63 (Washington, GPO, 1984), available at http://www.nfaoa.org/documents/DolaNFAamend.pdf.

12

Exhibit A, Pg. 331

2, 1968, the day after the 30-day amnesty period expired, there is no other mention of the
amnesty period provision except in the statute itself.46
BATFE published regulations in 26 C.F.R., Section 179.120, entitled
"Registration of Firearms", revised as of January 1, 1969, that described procedures for
registering unregistered NFA firearms during the 1968 amnesty period.47 The regulation
states, in part: "No firearm may be registered by a person unlawfully in possession of the
firearm after December 1, 1968, except that the Director, after publication in the Federal
Register of his intention to do so, may establish periods of amnesty, not to exceed ninety
(90) days in the case of any single period with such immunity from liability as the
Director determines will contribute to the purposes of this part."48 Paragraph (e) further
stipulates that "A firearm not identified as registered by this part shall not be
registered."49 Notwithstanding these limitations, in a document entitled "Amnesty

46

See U.S. Senate, Gun Control Act of 1968, Title II-Amendments to the National Firearms Act,
Report No 1501, 90th Cong., 2nd Sess., at 43 (Washington, GPO, 1968), available at
http://www.nfaoa.org/documents/SenateReport1501-GCA1968.pdf. While not mentioned anywhere in the
1968 Act, of historical interest is a provision discussed during 1965 hearings for a registration period to
bring "destructive devices" under the NFA, whereby persons possessing such devices "shall have 30
days from the effective date of this act to register such firearm, and that no liability (criminal or
otherwise) shall be incurred in respect to failure to so register under such section prior to the
expiration of such 30 days.” See U.S. Congress, House of Representatives, Committee on Ways and
Means, Proposed Amendments to the National Firearms Act and the Firearms Act, Part I, 89th Cong.,
1st Sess., at 7 (Washington, GPO, 1965), available at
http://www.nfaoa.org/documents/1965_Hearing_Part_I.pdf. The hearing summarizes the need to, “Bring
under Federal control interstate shipment and disposition of large caliber weapons such as bazookas
and antitank guns, and destructive devices such as grenades, bombs, missiles, and rockets,” “curb the
flow into the United States of surplus military weapons and other firearms not suitable for sporting
purposes,” and “increase to twice the present rate of all taxes under the National Firearms Act of
1934,” noting that “the principal rates have not been changes since the original enactment of the act in
1934,” and that “it is necessary to increase the rates in order to carry out the purposes of the act.” (Id.
at 3-4).
47
26 C.F.R. § 179.120 (1969), available at http://blog.princelaw.com/assets/2008/1/9/1969-CFRATF-amnesty-regs.pdf.
48
Id.
49
Id.

13

Exhibit A, Pg. 332

Guidelines" and dated April 16, 1969, BATFE established a program which allowed the
registration of unregistered NFA firearms.50
In 1998, the Treasury Department Inspector General investigated these “postamnesty” registrations and concluded that ATF may not have followed proper
procedures, because ATF failed to publish a notice in the Federal Register as required by
law, which casts some legal questions upon the legitimacy of the registrations.51
Moreover, according to Assistant Attorney General, Criminal Division, Philip B.
Heymann, the BATFE’s handling of the 1968 Amnesty was a complete disaster:
The amnesty period spawned a massive volume of registrations, transfers
and correspondence which the clerical staff was ill-equipped to handle. As
a result, some weapons were registered, some were mistakenly registered
by part number rather than serial number, and some documents were
misfiled. The staff responsible for the system was aware of these
problems.” 52 [emphasis added].
In United States v. Freed, apparently without knowledge of the BATFE’s
mismanagement of the registration process and NFRTR after the 1968 amnesty, the
Supreme Court held that the amended NFA no longer violated the Fifth Amendment
protection against self-incrimination, or violated an individual’s right to due process, as

50

A copy of the original document is available at
http://www.nfaoa.org/documents/Work_Papers_E.pdf, at 4-5; however, the reproduction is of relatively
low quality, and a True Copy was submitted in a 2001 Congressional statement, available
at http://www.nfaoa.org/documents/2001statement.pdf 19-20, which also includes a True Copy of an ATF
memorandum dated March 4, 1975, confirming that the post-amnesty registration program had been
implemented but was later discontinued.
51
U.S. Department of the Treasury, Office of Inspector General, Special Report on Allegations
Concerning the Bureau of Alcohol, Tobacco, and Firearm’s Registration and Recordkeeping of the
National Firearms Registration and Transfer Records, OIG-99-009, at 1, 13 (Washington, Oct. 26, 1998),
available at http://www.nfaoa.org/documents/TreasuryOIG-99-009-1998.pdf. If the legitimacy of these
registrations comes into question, it should be held against the BATFE, not the individual, since the
individual followed the procedures established by the BATFE. Furthermore, the loss of such a firearm
would be a monumental economic loss to the registrant or individual to whom the firearm has been
transferred.
52
U.S. Department of Justice, Criminal Division, Memorandum: Response to letter from Senator
McClure, by Philip B. Heymann and Lawrence Lippe, 2-3 (Nov. 29, 1979), available at
http://www.nfaoa.org/documents/DOJamnestyMemo1979.pdf.

14

Exhibit A, Pg. 333

Congress had remedied the problem by enacting the 1968 NFA firearms amnesty.53 If the
Supreme Court was informed of the problems and mishandlings of the 1968 amnesty, the
Court’s holding might have been drastically different.
While the 1968 Amnesty was the only amnesty authorized by Congress, the
Congress provided, under § 207(d), for future amnesty periods, up to 90 days per period,
as needed:
“The Secretary of the Treasury, after publication in the Federal Register of
his intention to do so, is authorized to establish such periods of amnesty,
not to exceed ninety days in the case of any single period, and immunity
from liability during any such period, as the Secretary determines will
contribute to the purpose of this title.”54
E. The Firearms Owners’ Protection Act [FOPA] of 1986

The passage of FOPA prohibited the possession of machineguns that were not
legally possessed prior to its enactment on May 19, 1986.55 The effect was to freeze the
number of machineguns that could be legally owned by private citizens. While previously
contending that FOPA nullified the amnesty provision for machineguns, the BATFE has
recently changed their position.56 Moreover, given that the number of NFA registered

53

United States v. Freed, 401 U.S. 601, 605 (1971). The Court stated, “Under the present Act only
possessors who lawfully make, manufacture, or import firearms can and must register them; the transferee
does not and cannot register. It is, however, unlawful for any person to receive or possess a firearm which
is not registered to him in the National Firearms Registration and Transfer Record.” [original emphasis]. Id.
at 604.
54
82 Stat. 1235, § 207(d).
55
100 Stat. 452, § 102(9); codified at 18 U.S.C. § 922(o)(1) (1986).
56
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2002, Part 3, Statements of Members of Congress and Other Interest
Individuals and Organizations, 107th Cong., 1st Sess., at 10 (Washington, GPO, 2002), available at
http://www.nfaoa.org/documents/2001statement.pdf; The BATFE has now taken the position that they have
the power to authorize a new amnesty, but choose not to do so, so as not to “jeopardize pending ATF
investigations and prosecutions of NFA violations.” BATFE, ATF National Firearms Act Handbook, at 23
(June 2007), available at http://www.atf.gov/firearms/nfa/nfa_handbook/index.htm.

15

Exhibit A, Pg. 334

firearms, post-amnesty, has continued to rise, one can only conclude that either the
BATFE has continued to allow a BATFE-discretionary amnesty, which is contrary to
law,57 or, that which is more likely, the BATFE has been adding lost/destroyed firearm
registrations back into the NFRTR, because it assumes the NFRTR to be in error.58

F. NFA Registration Process and Penalties

The confluence of the NFA, CGA, and FOPA has resulted in a series of
procedures to register a NFA weapon, as well as, penalties for the failure to do so. A
private citizen, who is not otherwise prohibited by law, may acquire an NFA weapon in
several ways: 1.) a registered owner of an NFA firearm may apply for ATF approval to
transfer the firearm to another person residing in the same state or to a FFL in another
state, or an individual may purchase an NFA firearm from a FFL;59 2.) an individual may
apply to the BATFE for approval to make and register an NFA firearm (except machine
gun);60 or 3.) an individual may inherit a lawfully registered NFA firearm.61
57

90 P. L. 618; 82 Stat. 1235, § 207(d); Eric Larson, Errors in the National Firearms Registration
and Transfer Record: A New Amnesty Period May be Required to Correct Them, prepared for the
Subcommittee on Treasury, Postal Services, and General Government of the Committee on Appropriations,
at 41-139 (Apr. 8, 1997), available at http://www.nfaoa.org/documents/1997testimony.pdf. This is
supported by the Treasury Department Inspector General’s statement that the BATFE, “may have failed to
follow procedures by failing to publish [notice of ATF’s years-long extension of the 1968 Amnesty] in the
Federal Registrar, as required by the Gun Control Act of 1968.” U.S. Congress, House Committee on
Appropriations, Subcommittee on the Treasury, Postal Service, and General Government Appropriations,
Treasury Postal Service, and General Government Appropriations for Fiscal Year 2002, Part 3, Statements
of Members of Congress and Other Interest Individuals and Organizations, 107th Cong., 1st Sess., at 9
(Washington, GPO, 2002), available at http://www.nfaoa.org/documents/2001statement.pdf.
58
U.S. Department of the Justice, Office of Inspector General, The Bureau of Alcohol, Tobacco,
Firearms and Explosives’ National Firearms Registration and Transfer Record, I-2007-006, at 31 (June
2007), available at http://www.nfaoa.org/documents/DOJ-OIG2007NFRTRreport.pdf. The lack of an
official GAGAS audit precludes a definitive determination on this issue; for example, a “lost” registrations
could represent a lost transfer document or documents, or a complete loss of the entire record of a
registered NFA firearm or device, as occurred in the Napolilli case, discussed later in this article.
59
26 U.S.C. § 5811.
60
26 U.S.C. § 5822.

16

Exhibit A, Pg. 335

The process for registering a NFA firearm is as follows: 1.) the applicant must file
an application, in duplicate, with the BATFE; 2.) if not a Special Occupational Taxpayer
licensed to manufacture NFA firearms or devices, pay the two-hundred dollar tax; 3.) if
the transferee is an individual, thus exempting corporations and trusts, he/she must
submit fingerprints and photographs; and, 4.) the signature of the chief law enforcement
officer or other person of prominence, determined by the BATFE.62
The penalty for violating the NFA, specifically receiving, possessing, or
transferring an unregistered NFA firearm, is a fine of up to two-hundred and fifty
thousand dollars, imprisonment for up to ten years, and forfeiture of the firearm and any
vessel, vehicle, or aircraft used to conceal or convey the firearm.63 Firearms, for which
there are no or incomplete records in the NFRTR, are considered contraband by the
BATFE and are subject to seizure and forfeiture.64

III. The NFRTR

Under the NFA, the Secretary of the Treasury, now the Attorney General, is
required to “maintain a central registry of all firearms in the United States which are not
in the possession or under the control of the United States. This registry shall be known
as the National Firearms Registration and Transfer Record.”65 The NFRTR must include

61

26 U.S.C. § 5811
Id.; 26 U.S.C. § 5812. The fee for transferring an AOW is $5. § 5811.
63
26 U.S.C. §§ 5861(d),(j); 26 U.S.C.S. § 5872; 49 U.S.C. §§ 781-788.
64
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2002, Part 3, Statements of Members of Congress and Other Interest
Individuals and Organizations, 107th Cong., 1st Sess., at 9 (Washington, GPO, 2002), available at
http://www.nfaoa.org/documents/2001statement.pdf.
65
26 U.S.C. § 5841(a); 6 U.S.C. § 531; 116 Stat. 2135 (2003).
62

17

Exhibit A, Pg. 336

1. “identification of the firearm;” 2. “date of registration;” and 3. “identification and
address of person entitled to possession of the firearm.”66 Additionally, “A person
possessing a firearm registered as required by this section shall retain proof of
registration which shall be made available to the Secretary [now Attorney General;
effectively, any BATFE Special Agent] upon request.”67
The NFRTR has been the source of debate in the Congress since the late 1970’s,
and federally licensed NFA dealers have “suspected” for years that the NFRTR records
were incomplete and lacked reliability, because their firearms inventories were not
accurately reflected in the NFRTR-generated reports, which came to light when the
BATFE performed compliance inspections.68 These inaccuracies have caused some
lawful possessors of NFA weapons to fear, “[S]ome overzealous ATF agent will attempt
to make a Registry error into a SWAT visit.”69

IV. The Inaccuracy of the NFRTR

Prior to the enactment of the NFA, Karl T. Frederick, then President of the
National Rifle Association, voiced concerns over the possibility of citizens who lawfully
registered their NFA weapons being turned into criminals for losing their registration
papers.70 While the issue of accuracy, completeness, and reliability of the NFRTR only

66

§ 5841(a)(1)-(3).
§ 5841(e); 6 U.S.C. § 531; 116 Stat. 2135 (2003).
68
Introductory Statement of Dan Shea, editor of Small Arms Review, leading an article by Eric M.
Larson, Voluntary Amnesty Registrations Under the National Firearms Act: Current Prospects and Some
History From 1934 to 1968, SMALL ARMS REVIEW, May 2000, at 41.
69
Id.
70
U.S. Congress, House Committee on Ways and Means, H.R. 9066, 73rd Cong., 2nd Sess., at 57
(Washington, GPO, 1934), available at http://www.nfaoa.org/documents/NFA-1934house.pdf.
67

18

Exhibit A, Pg. 337

came to the Congress’ attention in 1979, the BATFE was well aware, in December of
1968, that the 1968 Amnesty was a complete disaster.71
In 1979, then-Senator Jim McClure, on behalf of the NRA Firearms Museum,
contacted the BATFE over its determination to bring a forfeiture action against the
Museum, alleging seven weapons were illegally possessed, since they were not found in
the registry.72 While the BATFE had already begun a forfeiture action, United States v.
Seven Miscellaneous Firearms, the district court, disconcerted by the allegations of the
inaccuracy, found none of the weapons to be firearms that required registration.73
At the same time, the Congress heard testimony that the BATFE alleged J. Curtis
Earl, a federally licensed NFA dealer, illegally possessed 475 unregistered firearms.74
While ATF had consulted microfiche copies of NFRTR records, the attorney who
represented Mr. Earl noted that Mr. Earl,
[T]urned to his file cabinet and began to produce the original records of
their registration, and one by one the firearms came off the floor and back

“[A]s a matter of human experience, the owner of a gun is going to lose papers, they are going to
get mislaid, they are going to get burned up, if he cannot turn them up when required to do so he is liable to
go to jail. I think there ought to be a simple method of obtaining a copy of that paper from the authorities
with whom the original was filed. . . . If not, in the actual operation, you are going to create criminals.” Id.
71
U.S. Dep’t of Justice, Criminal Div., Memorandum: Response to letter from Senator McClure, by
Philip B. Heymann and Lawrence Lippe, at 2-3 (Nov. 29, 1979), available at
http://www.nfaoa.org/documents/DOJamnestyMemo1979.pdf.
72
Id. at 1.
73
Id.; United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565, 579 (D.D.C. 1980). NFA
Branch Chief Wayne Miller commented on the decision, bizarrely declaring “Considerable evidence was
received that [ATF’s] officials have for many years recognized the inadequacy and incompleteness of the
Bureau’s records. The Court is not required to pass judgment on this, because the Government has failed to
show that these seven items are firearms.” U.S. Congress, House Committee on Appropriations,
Subcommittee on the Treasury, Postal Service, and General Government Appropriations, Treasury Postal
Service, and General Government Appropriations for Fiscal Year 1998, Part 5, Testimony of Members of
Congress and Other Interested Individuals and Organizations, 105th Cong., 1st Sess., at 97 (Washington,
GPO, 1997), available at http://www.nfaoa.org/documents/1997testimony.pdf.
74
U.S. Congress, Senate Committee on Appropriations, Oversight Hearings on Bureau Alcohol,
Tobacco & Firearms, 96th Cong., 1st Sess. at 39 (Washington GPO 1979), available at
http://www.nfaoa.org/documents/1979_Hearing_Excerpts.pdf.

19

Exhibit A, Pg. 338

onto his racks. At the end, he could show that he had registered every
single one of these 475 firearms. ATF’s records were grossly incorrect.75
In response to a request by Senator McClure, the Criminal Division of the Department of
Justice stated that if BATFE determines that “a particular individual or weapon is
registered” and BATF finds that its “files are missing,” then “the only solution would be
to declare another amnesty period.”76 However, no amnesty period was established in
response to the Earl case.
In the 1980’s, defense attorneys, in several federal court cases, began requesting,
during discovery, internal BATFE memoranda and reports that documented problems
regarding the accuracy of the NFRTR.77 One of the procured BATFE memoranda,
written by the NFA Branch Chief, declared,
Our response to inquires on the existence or nonexistence of proper
registration of an NFA firearm is the basis for seizure, arrests, prosecution,
fines, and imprisonments. Our testimony or certification of the
nonexistence of such record is evidence subject to close examination in
court. We continuously discover discrepancies and inaccuracies in the
registration file which, if discovered during trial, would destroy the future
credibility of such evidence. One resultant possibility is that a defendant
who maintains he had properly registered his firearm but had lost his
approved form could, subsequent to his arrest based on non-registration,
locate his lost document. If the court should discover that our negligence
caused an unwarranted arrest and trial, the resultant loss of public trust
would be irreparable. Just as serious is the possibility that an innocent
man might be convicted if he could not find his registrant form and we
certified that he had not registered the firearm when, in fact, we had failed
to locate his registration in the Record [NFRTR].78 [emphasis added]
75

Letter to Ernest S. Istook, Jr., Chairman, Subcommittee on Treasury, Postal Service and General
Government, from David T. Hardy, Esq., dated April 10, 2001, available at
http://www.nfaoa.org/documents/BardHard.pdf.
76
U.S. Department of Justice, Criminal Division, Memorandum: Response to letter from Senator
McClure, by Philip B. Heymann and Lawrence Lippe, Nov. 29, 1979, at 4, available at
http://www.nfaoa.org/documents/DOJamnestyMemo1979.pdf.
77
Congressional Research Service, Memorandum: ATF’s National Firearms Registration and
Transfer Record: Issues Regarding Data Accuracy, Completeness, and Reliability, by William J. Krouse,
Nov. 28, 2005, at 6 (citing to United States v. Stout, 667 F.2d 1347 (11th Cir. 1982), available at
http://www.nfaoa.org/documents/CRSmemoNFRTR0001.pdf; United States v. Seven Miscellaneous
Firearms, 503 F. Supp. 565 (D.D.C. 1980)).
78
NFA Branch Chief memorandum to ATF Assistant Director for Technical and Scientific
Services, Purification and Verification of the National Firearms Registration and Transfer Record, Apr. 3,

20

Exhibit A, Pg. 339

However, the then-Assistant Director of the BATFE, continued to assert that the
inaccuracies had been corrected and that the NFRTR was accurate and reliable for
“criminal proceedings.”79
More disconcerting is the October 1995 “Roll Call” training video of then NFA
Branch Chief, Thomas B. Busey, in which Mr. Busey orders BATFE staff to continue to
commit perjury when testifying about the NFRTR: “Let me say that when we testify in
court, we testify that the database [NFRTR] is 100 percent accurate. That’s what we
testify to, and we will always testify to that. As you probably well know, that may not be
100 percent true.”80 Mr. Busey continued, “If our database were absolutely error free, we
could simply run the name of individual and his first name, and if it didn’t come up, we
could guarantee everyone that that individual doesn’t have a Title II [NFA] weapon
registered to him.”81 Furthermore, Chief Busey stated that the error rate in the NFRTR
was between 49 and 50%, before he became NFA Branch Chief, which means all cases
prosecuted for illegal possession of a firearm, prior to 1994, had a one in two chance of
the legally registered weapon’s record not existing or being discoverable in the NFRTR.82
Chief Busey then declared that the current, as of 1995, inaccuracy rate was below 8%,

1975, reproduced in Oversight Hearings on Bureau of Alcohol, Tobacco, and Firearms, Senate Committee
on Appropriations, 96th Cong., 1st Sess., at 42 (Washington, GPO, 1979), available at
http://www.nfaoa.org/documents/1979_Hearing_Excerpts.pdf.
79
Bureau of Alcohol, Tobacco, and Firearms, Status Report: National Firearms Registration and
Transfer Record (NFRTR), by Deron A. Dobbs, July 1, 1981, at 17, available at
http://www.nfaoa.org/documents/DeronDobbs.pdf.
80
BATFE/NFRTR Roll Call Training Video, Oct. 1995, available at
http://www.nfaoa.org/documents/rollcall_highlights.mp4 or as text
http://www.nfaoa.org/documents/BuseyTranscript.pdf at 20.
81
Id.
82
Id.

21

Exhibit A, Pg. 340

while at the same time the BATFE was attesting to the court that the NFRTR was 100%
accurate.83

V. Congressional Hearings/OIG Audits

The Congress has been aware of the problems of the NFRTR since the 1970’s; yet
the courts, for the most part, have been relatively uninformed or unaware of such
proceedings.84 The hearings and testimonies on the NFA, and more specifically the
inaccuracy in the NFRTR, are massive, some encompassing more than 900 pages; thus,
the hearings will be broken down by date, and only the most pertinent information will be
discussed, because an article could be written on each hearing. These hearings
memorialize the inaccuracy of the NFRTR, misleading statements by the BATFE, official
audits that fail to follow Generally Accepted Government Auditing Standards (GAGAS)
based on Government Auditing Standards,85 lack of internal controls within the BATFE,
and BATFE’s failure to follow procedure, as well as, the Congress’s and BATFE’s
failure to rectify the NFRTR. While the Department of the Treasury, Office of Inspector
General, purports to have based its 1998 audit reports on GAGAS, inspection of various
unpublished Work Papers from these audits disclose that pertinent findings were omitted
from the published audit reports, and render a more accurate and complete version of the
serious errors in the NFRTR and BATFE mismanagement.
83

Id.
U.S. Dep’t of Justice, Criminal Div., Memorandum: Response to letter from Senator McClure, by
Philip B. Heymann and Lawrence Lippe, 2-3 (Nov. 29, 1979), available at
http://www.nfaoa.org/documents/DOJamnestyMemo1979.pdf.
85
The audits described in this article fell within the scope of COMPTROLLER GENERAL OF THE
UNITED STATES, GOVERNMENT AUDITING STANDARDS, (Washington, D.C., U.S. GPO, 1994), which has
since been updated.
84

22

Exhibit A, Pg. 341

A. 1934-1980

Since the previous section, The Inaccuracies in the NFRTR, dealt mainly with
issues that arose from 1933 to the 1980’s, I will not reiterate those occurrences. However,
in 1968, after U.S. v. Haynes invalidated the registration provision of the NFA,86 the
Congress held hearings on new legislation, which would become the GCA.87 The
testimony most pertinent to this article is that of then Internal Revenue Service
Commissioner Sheldon S. Cohen on the effect of U.S. v. Haynes on enforcement of the
NFA. Although his statements do not acknowledge or characterize the inaccuracy of the
NFRTR, they illustrate the likely impact on the BATFE’s ability to prosecute individuals
if a new amnesty period was established.88 Commissioner Cohen stated, “We had been
averaging, under the National Firearms Act, about 60 to 70 prosecutions per month for
National Firearms Act violations. Since the first of this year, when the Haynes decision
was rendered, we are down to about something in the excess of 40 a month.”89 Hence,
U.S. v. Haynes apparently hampered the BATFE's ability to prosecute individuals in just
one out of three cases, presumably limited to cases for Possession of an Unregistered
Firearm. Thus, establishing a new amnesty period will not prevent the BATFE from
prosecuting violations of the NFA; and as will be shown, BATFE could still successfully
prosecute some Possession of Unregistered Firearm cases.

86

Haynes v. United States, 390 U.S. 85, 100 (1968).
U.S. Congress, Senate Committee on the Judiciary, Subcommittee to Investigate Juvenile
Delinquency, Pursuant to S. Res. 240, 90th Cong., 2nd Sess., (Washington, GPO, 1968), available at
http://www.nfaoa.org/documents/IRS_Commissioner_GCA_Hearing.pdf.
88
Id. at 661.
89
Id.
87

23

Exhibit A, Pg. 342

B. 1980-1995

In 1983, then Senator Robert Dole, before the Committee on the Judiciary,
proposed amending the NFA to establish a “continuing registration period during which
possessors of unregistered National Firearms Act (NFA) weapons could register such
weapons.”90 In response to Senator Dole’s Dole’s proposed amendment, then-ATF
Deputy Assistant Secretary for Enforcement Robert E. Powis declared “Having provided
a 30-day period within which possessors of unregistered weapons could register them
with impunity, the 1968 amnesty served its purpose. Therefore, unregistered weapons
could no longer be legitimately registered and possessor’s retention of them violated the
law.”91 However, as will be shown in the 1998 audits of the NFRTR by the Treasury
Department Inspector General, and further documented by Eric M. Larson in his 2001
Congressional testimony, Mr. Powis’s statement contradicts the fact that BATFE
registered thousands of NFA firearms after the 1968 amnesty period expired, and thus
knowingly and willfully misled the Congress in an official capacity as the representative
of a federal law enforcement agency.92
In 1992, the BATFE threatened charging Noel Napolilli, a retired public school
teacher, with Possession of an Unregistered Firearm because BATFE said it could find no
record of his MP-40 machine gun, serial number 4202, in the NFRTR. 93 When Mr.

90

U.S. Congress, Senate Committee on the Judiciary, S. 914, 98th Cong., 1st Sess., at 62
(Washington, GPO, 1984), available at http://www.nfaoa.org/documents/DolaNFAamend.pdf.
91
Id. at 63.
92
Eric M. Larson, Errors in the National Firearms Registration and Transfer Record: A New
Amnesty Period May be Required to Correct Them, prepared for the Subcommittee on Treasury, Postal
Services, and General Government of the Committee on Appropriations, at 57-67, Apr. 8, 1997, available
at http://www.nfaoa.org/documents/1997testimony.pdf.
93
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government

24

Exhibit A, Pg. 343

Napolilli provided a copy of the Form 3 that the BATFE had approved, later shown to be
a copy that the BATFE made and sent to him, rather than one of the copies prepared in
duplicate that the BATFE approved, the BATFE claimed the document was a forgery.94
Even though its own Forensic Document Laboratory examined the Form 3 and
determined the document was genuine, the BATFE nevertheless seized and forfeited the
firearm.95
While BATFE contended the firearm had been illegally registered as
“remanufactured” because BATFE said it bore no evidence of remanufacture, the fact
that BATFE lost all of its computerized and hard copy records of the firearm precluded a
definitive determination.96 BATFE wrote to James Jefferies, III, Mr. Napolilli’s attorney,
that, “We agree with your observation that prior to Mr. Napolilli’s production of the
above mentioned Form 3, ATF had no record of registration of the MP40 machinegun to
Mr. Napolilli or any other person.”97 Mr. Napolilli, left with no other option, filed suit.98
However, he dropped his suit against the BATFE, “because my wife and I were fearful of
BATF reprisal, the seizure of my sizeable firearms collection, … and being harassed by
constant ‘inspections.’ There was substantial evidence that these things would likely

Appropriations for Fiscal Year 1999, Part 5, Testimony of Member of Congress and Other Interested
Individuals and Organizations, 105th Cong., 2nd Sess., at 33-34 (Washington, GPO, 1998), available at
http://www.nfaoa.org/documents/NoelNapolilli.pdf.
94
Id. at 33.
95
Id.
96
Id. It should be noted that the gun was not forensically examined by an independent expert.
97
Letter from Wayne Miller, Chief, National Firearms Act Branch, Bureau of Alcohol, Tobacco and
Firearms to James H. Jeffries III, dated Sept. 18, 1992, available at http://www.nfaoa.org/documents/ATFWayneMillerLetter-1992.pdf.
98
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 1999, Part 5, Testimony of Member of Congress and Other Interested
Individuals and Organizations, 105th Cong., 2nd Sess., at 84-86 (Washington, GPO, 1998) available at
http://www.nfaoa.org/documents/NoelNapolilli.pdf.

25

Exhibit A, Pg. 344

occur based on other incidents with which I was familiar.”99 Mr. Napolilli continued, “[I
later] learned that a BATF employee destroyed other registration documents to avoid
having to work on them and that their database approached a 50% error rate.”100
Mr. Napolilli’s predicament occurred shortly before a new round of hearings and
testimonies on the inaccuracy of the NFRTR, as well as two audits of the NFRTR by the
Treasury Department Inspector General published in 1998, which would continue for
over the next decade. Indeed, in 2006, then Attorney General Gonzales refuted the
BATFE’s position on refusing to accept previously approved paperwork. When
Representative Chris Cannon asked, why do “I have just in my district many, many
people who have this problem, and they have paperwork that came from the ATF that is - it's ignored by ATF,” Attorney General Gonzales replied, “That shouldn't be the
case.”101

C. 1995-1998

As discussed in the section The Inaccuracy in the NFRTR, in the “Roll Call”
training video then-BATFE Chief Busey ordered NFA Branch staff to commit perjury
when testifying about the accuracy of the NFRTR.102 The BATFE tried to mitigate
Busey’s remarks by offering a “correction;” NFA Specialist, Gary N. Schaible, stated

99

Id. at 33.
Id.
101
U.S. Congress, House Committee on the Judiciary, Department of Justice, Serial No. 109-137,
109th Cong., 2nd Sess., at 27 (Washington, GPO, 2006), available at
http://www.nfaoa.org/documents/DOJHearingserialno109-137.pdf.
102
BATFE/NFRTR Roll Call Training Video, Oct. 1995, available at
http://www.nfaoa.org/documents/rollcall_highlights.mp4 or as text
http://www.nfaoa.org/documents/BuseyTranscript.pdf. This was obtained by a Freedom of Information Act
(FOIA) request in 1996 by attorney James H. Jeffries.
100

26

Exhibit A, Pg. 345

under oath, “I have never testified that the data base [NFRTR] is 100 percent accurate
nor, to the best of my knowledge, has any other of the NFA branch personnel, including
Mr. Busey.”103 However, Schaible’s statement, which carefully avoids characterizing the
true error rate of the NFRTR, raises doubts about the legitimacy and trustworthiness of
any and all certifications that the BATFE might give in a criminal proceeding, as will be
discussed in the section, The Intersection of the Federal Rules of Evidence and the
NFRTR. Since the BATFE concedes that the NFRTR is not 100% accurate, how can any
court deprive an individual of his/her liberty based on this inaccurate database, in the
absence of a valid and reliable estimate such as would be obtained by a GAGAS audit?
Surely, this, combined with the Napolilli incident, meets the standard for reasonable
doubt, in any proceeding.
Representative David Funderburk was not amused by the Busey comments and
Schaible follow up. As a result, he proffered comments made by attorney James Jefferies
into the Congressional Record:
Consider this matter in its starkest terms: a senior BATF official lecturing
other senior BATF officials at BATF national headquarters in
Washington, DC, declares openly and without apparent embarrassment or
hesitation that BATF officers testifying under oath in Federal--and State-courts have routinely perjured themselves about the accuracy of official
government records in order to send gun-owning citizens to prison and/or
deprive them of their property. Just who is the criminal in these cases?104
103

U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 1997, Part 5, Testimony of Member of Congress and Other Interested
Individuals and Organizations, 104th Cong., 2nd Sess., at 183 (Washington, GPO, 1996), available at
http://www.nfaoa.org/documents/Schaiblecorrect.pdf. See also, U.S. Congress, House Committee on
Appropriations, Subcommittee on the Treasury, Postal Service, and General Government Appropriations,
Treasury Postal Service, and General Government Appropriations for Fiscal Year 1999, Part 5, Testimony
of Member of Congress and Other Interested Individuals and Organizations, 105th Cong., 2nd Sess., at
146-171 (Washington, GPO, 1998), available at http://www.nfaoa.org/documents/LeaSuretest.pdf.
104
142 Cong. Rec. E 1461 (1996) (statement of Honorable David Funderburk reiterating James H.
Jefferies, Institutional Perjury, VOICE FOR THE DEFENSE, Vol. 28, No. 4, Oct. 1996, at 28-30, available at
http://www.nfaoa.org/documents/1998testimony.pdf.

27

Exhibit A, Pg. 346

The record continues, “After reviewing the incriminating [Busey] tape, BATF officials
discussed whether they could get away with destroying it.”105 To push the point home,
Representative Funderburk reiterated Jefferies comment that,
When the fog had cleared Justice learned that the NFR&TR inaccuracy
problem had been the subject of internal BATF discussion since at least
1979. BATF's files were replete with minutes of meetings, statistical
studies, memoranda, correspondence, et cetera, admiring the problem. The
only thing missing was any attempt to correct the problem, or to reveal it
to anyone outside the agency.106
Most damaging was Jefferies legal opinion of the incident,
The indirect consequences of BATF's conduct will not be so readily
apparent but are potentially devastating. All across the country assistant
U.S. attorneys, U.S. district judges, and other Federal and local law
enforcement officials are going to learn what most defense lawyers and
gun dealers have known for years and what the aftermath of Waco and
Ruby Ridge starkly illustrated: BATF officers and agents lie, dissemble,
and cover up on an institutionalized basis. These are not aberrations; they
are an institutional ethic, an organizational way of life. Just who is the
criminal in these cases?107 [emphasis added].
In 1996, the BATFE charged John Daniel LeaSure with illegal possession of
firearms, in a case where the testimony of Mr. Schaible would later be impeached by an
internal BATFE investigation into the destruction of NFA documents by BATFE
employees.108 Mr. Schaible testified, under oath, when asked if he was aware of BATFE
employees throwing away NFA documents so they would not have to process them, he
answered, “Yes.”109 When asked if NFA Branch Clerks throwing away such documents
could have resulted in the BATFE believing Mr. LeaSure to be in possession of allegedly

105

Id.
Id.
107
Id. at E 1461-62.
108
U.S. v. LeaSure, No 4:95cr54 (E.D. Va. May 21, 1996); Transcript of Record at 217, U.S. v.
LeaSure, No 4:95cr54 (E.D. Va. May 21, 1996), available at
http://www.nfaoa.org/documents/LeaSureTrial.pdf.
109
Transcript of Record at 236, U.S. v. LeaSure, No 4:95cr54 (E.D. Va. May 21, 1996), available at
http://www.nfaoa.org/documents/LeaSureTrial.pdf.
106

28

Exhibit A, Pg. 347

unregistered firearms, Mr. Schiable responded, “Certainly.”110 More disconcerting is
when Mr. Schiable was asked whether these employees were fired, he responded,
“No.”111 With this information, the learned and Honorable John A. Mackenzie, United
States District Court, Eastern District of Virginia, dismissed the convictions for illegal
possession of firearms because, based on the BATFE’s own testimony, the BATFE itself
may have destroyed Mr. LeaSure’s registration documents.112 As Jefferies’ comments,
which Representative Funderburk would later read into the Congressional Record,
declare, “In essence Schaible was testifying that 'We can't find an official record and
therefore the defendant is guilty.’ What we now know is that Schaible should have
testified that ‘We can't find half our records—even when we know they're there—and
therefore we're not sure if anyone is guilty.’''113
This admonition in the Congressional Record, however, did not stop Mr. Schiable
from changing his story during an internal 1997 BATFE investigation into the destruction
of NFA documents by BATFE employees. During the investigation, Mr. Schiable told
investigators, under oath, that one may have construed from his testimony, “that ATF
employees were destroying documents, but this was not the case.”114 Mr. Schiable’s
sworn testimony in the LeaSure case clearly and legally establishes that the BATFE

110

Id. at 237.
Id.
112
Id. at 239.
113
142 Cong. Rec. E 1461 (1996) (statement of Honorable David Funderburk).
114
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 1999, Part 5, Testimony of Member of Congress and Other Interested
Individuals and Organizations, 105th Cong., 2nd Sess., at 90 (Washington, GPO, 1998), available at
http://www.nfaoa.org/documents/1998testimony.pdf. Mr. Schaible’s contradictory sworn testimony has
been analyzed separately at some length; see “ATF Specialist Gary N. Schaible’s Contradictiry Sworn
Testimonies Regarding the Destruction of NFA Documents at ATF,” Eric M. Larson, Work Papers on
Errors in the National Firearms Registration and Transfer Record, and Other Issues Regarding the Bureau
of Alcohol, Tobacco, and Firearms, at 15-19 (Apr. 2. 1999), available at:
http://www.nfaoa.org/documents/Critiqueof1998IGreports.pdf.
111

29

Exhibit A, Pg. 348

destroyed NFA documents; otherwise, the United States would have appealed the
decision to dismiss the convictions. To appeal and lose would have resulted in the Court
of Appeals upholding the verdict and writing case law that would have invalidated the
NFRTR.

D. 1998

In October 1997, the Department of the Treasury, Office of Inspector General, at
the request of Representative Dan Burton, then Chairman of the House Committee on
Government Reform and Oversight, began investigating allegations that the NFRTR was
inaccurate, incomplete and, therefore, unreliable.115 Chairman Burton requested the
investigation in response to five specific allegations by a private citizen, based on
statistical and documentary evidence, which “may be valid and legitimate.”116 The
Treasury Department Inspector General rendered a report on the citizen’s allegations in
October 1998.117
The investigation found, among other things, that “National Firearms Act (NFA)
documents had been destroyed about 10 years ago by contract employees. We could not
obtain an accurate estimate as to the types and number of records destroyed”118 and “ATF

115

U.S. Department of the Treasury, Office of Inspector General, Special Report on Allegations
Concerning the Bureau of Alcohol, Tobacco, and Firearm’s Registration and Recordkeeping of the
National Firearms Registration and Transfer Records, OIG-99-009, 1 (Washington, Oct. 26, 1998),
available at http://www.nfaoa.org/documents/TreasuryOIG-99-009-1998.pdf.
116
Treasury Department, Inspector General, Work Paper Bundle A, 1998 audit of NFRTR; available
at http://www.nfaoa.org/documents/Work_Papers_A.pdf at 53-54.
117
U.S. Department of the Treasury, Office of Inspector General, Special Report on Allegations
Concerning the Bureau of Alcohol, Tobacco, and Firearm’s Registration and Recordkeeping of the
National Firearms Registration and Transfer Records, OIG-99-009, at 1 (Washington, Oct. 26, 1998),
available at http://www.nfaoa.org/documents/TreasuryOIG-99-009-1998.pdf.
118
Id. at 1. This is in direct contradiction to Mr. Schiable’s later testimony.

30

Exhibit A, Pg. 349

granted amnesty NFA registrations to individuals after December 1, 1968 on a limited
basis [almost 2,500 registrations] providing certain conditions were met. ATF did not
publish its intent to grant an amnesty period as required by the Gun Control Act.”119
More importantly, the audit Work Papers memorialize a comment made by an
Assistant Special Agent-in-Charge at the Baltimore field office: “When [redacted] first
started with the agency in 1971, it was still under IRS. When ATF was made a separate
Bureau in 1972, it was not an amicable split from IRS. He believes much of the
documentation prior to 1972 may have been destroyed or maintained by IRS.”120
[emphasis added].
The Treasury Department Inspector General undertook a separate audit of the
NFRTR in addition to the one initiated in response to the citizen complaint, which
examined other aspects of the NFRTR. This additional audit of the NFRTR was
published in December of 1998.121 The additional audit revealed that the BATFE
allowed unauthorized access to the database by individuals no longer employed by the
BATFE, remittance checks were left unsecured, transfers were not processed in a timely
manner, and NFA weapons are registered to dead people.122 Furthermore, and more
disconcerting, the audit found that when the BATFE combined the existing NFRTR
database with its new upgraded NFRTR database, “ATF did not have adequate assurance
119

Id. at 1, 13. It should be recognized that BATFE may have sought to provide an opportunity for
certain applicants unable to participate in the amnesty because they were outside the continental United
States, an opportunity to register unregistered firearms. Individuals on vacation, or serving overseas in the
U.S. armed forces, may have been unaware of and unable to register their firearms due to the relatively
short, 30-day amnesty period.
120
U.S. Department of the Treasury, Office of Inspector General, Work Papers C, A-CH-98-001, at
C-18, available at http://www.nfaoa.org/documents/Work_Papers_C.pdf at 33-34.
121
U.S. Department of the Treasury, Office of Inspector General, Audit Report on Allegations
Concerning the Bureau of Alcohol, Tobacco, and Firearms’ Administration of the National Firearms
Registration and Transfer Record, OIG-99-018, (Washington, Dec. 18, 1998) available at
http://www.nfaoa.org/documents/TreasuryOIG-99-018-1998.pdf.
122
Id. at 1-23.

31

Exhibit A, Pg. 350

that all of the entries had been transferred in order to make the registry complete for its
intended use.”123[emphasis added]. The audit found, “An initial review by the OIG
showed that the prior registry reflected a total registration of 2,545,425 compared to a
total registration of 2,548,918 in the new database.”124 Thus, the registry mysteriously
grew by 3,493 entries. However, the Work Papers for this audit tell a much different
story: “[redacted] also provided an additional report, Weapon Inventory of Current
Owner. The total weapons count for this report is greater than the Annual Registration
Activity Report. The variance between the two reports is 212,734.”125
The audit declared, “ATF officials advised us that in September 1997, they had
reconciled the two databases, but they did not keep any record of it.”126 [emphasis added].
Thus, the BATFE denied the Treasury Department Inspector General the ability to
determine the truth value of their statement. Instead, in June of 1998, the BATFE did its
own audit of the reconciliation and, “ATF reported to us that 407 records (entries) from
the old database were not found in the new database.”127 Thus, these are just the records
to which were known; this audit does not depict all those records which were missing or
destroyed, although properly registered. Specifically, consider the statement by a
Treasury IG auditor Gary Wilk in an unpublished audit Work Paper that in repeated
efforts to reconcile the “discrepancies observed” during the audit, BATFE did not clearly
“demonstrate that the computer system, typically in use, provides reliable and valid data

123

Id. at 10.
Id. at 11.
125
U.S. Department of the Treasury, Office of Inspector General, Work Papers C, A-CH-98-001, at
C-37 available at http://www.nfaoa.org/documents/Work_Papers_C.pdf at 65.
126
U.S. Department of the Treasury, Office of Inspector General, Audit Report on Allegations
Concerning the Bureau of Alcohol, Tobacco, and Firearms’ Administration of the National Firearms
Registration and Transfer Record, OIG-99-018, at 11 (Washington, Dec. 18, 1998) available at
http://www.nfaoa.org/documents/TreasuryOIG-99-018-1998.pdf.
127
Id.
124

32

Exhibit A, Pg. 351

when a search is performed. ATF did demonstrate that they have the capacity to generate
various information from various sources but the original documentation remains missing
and the accuracy of the documentation provided cannot be assured.”128
More troubling is the audit report’s statement, “In addition to the discrepancies
between the old and the new databases, we observed discrepancies between the database
and original registration documents.”129 The audit report went on to state concern with a
registration category labeled “Other” where, “If form numbers were incorrectly entered
into the registry, the entry would also be included in this category.”130 Yet another
concern was the use of a Form 4467, which was used by the BATFE to register firearms
during the 1968 Amnesty.131 Thus, if the BATFE does a search for a Form 4, which is
the typical form used for transfer to an individual, the search would not yield a result, if
the form had been entered in the “Other” or “4467” categories.

The audit report continued,
ATF has certain formal procedures for entering data into the registry’s
database. However, the data entry errors such as those we found in our
sample occurred because employees had not correctly entered some data.
Also, supervisors or other employees did not always verify data entered
into the database because of time limitations and other priorities. In
response to our draft report, ATF officials also believed that discrepancies
summarized in our table may be data entry errors and/or failures to enter
information in accordance with established procedures.132
128

U.S. Department of the Treasury, Office of Inspector General, Work Papers F, A-CH-98-001, at
F-52, available at http://www.nfaoa.org/documents/Work_Papers_F.pdf at 62. These findings, while
limited to Forms 4467, cannot depict the true accuracy and completeness of the NFRTR. No search,
however diligent, can possibly locate a document that has been lost or destroyed.
129
U.S. Department of the Treasury, Office of Inspector General, Audit Report on Allegations
Concerning the Bureau of Alcohol, Tobacco, and Firearms’ Administration of the National Firearms
Registration and Transfer Record, OIG-99-018, at 11 (Washington, Dec. 18, 1998) available at
http://www.nfaoa.org/documents/TreasuryOIG-99-018-1998.pdf.
130
Id.
131
Id.
132
Id. at 12.

33

Exhibit A, Pg. 352

Thus, these “errors” may cause a search of the NFRTR to fail to locate numerous
legally registered firearms; this audit finding is virtually identical to determinations made
by the Department of Justice Inspector General in its June 2007 report on a “review” of
the NFRTR.
Incredibly, even in light of this evidence of NFRTR inaccuracies, “ATF officials
conclude that none of the identified discrepancies would affect the accuracy of a
certificate of non-registration prepared by the NFA Branch for use in support of a
criminal prosecution in United States district court.”133 The report continued, “[A]TF
stated that it can identify all records that might possibly be the record sought,”134 which
contradicts the BATFE’s admittance that it lost all of Mr. Napolilli’s records,135 the
destruction of numerous NFA documents 10 years ago,136 and those 407 missing
records.137 Lastly, it must be noted that the samples drawn by the auditors were smaller
than those that would ordinarily be drawn to establish standard estimates of precision and
confidence.
As explained in the report, “Because of the error rate we found in our discovery
sample and actions that ATF had underway to improve the quality of the registry, we did
not implement a full statistical sampling plan.”138 While this was the only information

133

Id. at 13.
Id.
135
Letter from Wayne Miller, Chief, National Firearms Act Branch, Bureau of Alcohol, Tobacco and
Firearms to James H. Jeffries III, dated Sept. 18, 1992, available at http://www.nfaoa.org/documents/ATFWayneMillerLetter-1992.pdf.
136
U.S. Department of the Treasury, Office of Inspector General, Special Report on Allegations
Concerning the Bureau of Alcohol, Tobacco, and Firearm’s Registration and Recordkeeping of the
National Firearms Registration and Transfer Records, OIG-99-009, at 1 (Washington, Oct. 26, 1998)
available at http://www.nfaoa.org/documents/TreasuryOIG-99-009-1998.pdf.
137
U.S. Department of the Treasury, Office of Inspector General, Audit Report on Allegations
Concerning the Bureau of Alcohol, Tobacco, and Firearms’ Administration of the National Firearms
Registration and Transfer Record, OIG-99-018, at 11 (Washington, Dec. 18, 1998) available at
http://www.nfaoa.org/documents/TreasuryOIG-99-018-1998.pdf.
138
Id. at 23.
134

34

Exhibit A, Pg. 353

provided to the public, the Work Papers, once again, explain why neither the actual error
rate was listed, nor was the full statistical sampling plan implemented, in a discussion of
audit findings the Treasury Department Inspector General omitted from the final reports.
Of the 528 records and documents reviewed: We discovered a total of 395
errors or omissions of which 176 were Critical to the NFA mission and the
remaining 219 were Administrative…We were unable to adequately
identify 14,301 Unknown records contained within the category ‘Other.’
These records have subsequently been tentatively identified as 9,621
miscoded Form 6 and 4,680 unknown (database conversion errors).139
Hence, the overall error rate, without consideration for the “Other” category, was
74.8%, and Critical error rate was 33.3%. To better understand the distinction between
Critical and Administrative errors, “[T]he name of the weapon owner and the weapon
serial number were critical,” but “[T]he address, date the document was received, the date
of birth of the applicant, and weapon description were [not] critical;” hence, not critical
has been termed Administrative.140 More interesting, to this end, is the fact that “Table 3:
Sampling Results: Error Rate Estimates” has been completely redacted.141
In a “Discovery” sample of seventy Form 4467s, the Treasury Department
Inspector General determined that “Our discovery sample indicated an 18.4% error rate,
one error per error Form 4467 in a ‘critical’ field.”142 Because of concerns that the
“critical error” rate was too high, the BATFE staff told the Treasury Department
Inspector General’s auditors to use different definitions of “critical error” to determine
the 4.3% error rate that can be calculated from data that the OIG formally reported;

139

U.S. Department of the Treasury, Office of Inspector General, Work Papers H, A-CH-98-001, at
H-0, available at http://www.nfaoa.org/documents/Work_Papers_H.pdf at 28.
140
U.S. Department of the Treasury, Office of Inspector General, Work Papers F, A-CH-98-001, at
F-37 available at http://www.nfaoa.org/documents/Work_Papers_F.pdf at 48.
141
U.S. Department of the Treasury, Office of Inspector General, Work Papers H, A-CH-98-001,
available at http://www.nfaoa.org/documents/Work_Papers_H.pdf at 35.
142
Id. at H-1, PDF at 32-60.

35

Exhibit A, Pg. 354

namely, 6 critical errors out of a “Discovery” sample of 141 cases.143 There is evidence
that in other, different, internal BATFE efforts in 1995 to reduce the error rate in the
NFRTR, the BATFE staff manipulated the definition of “Significant Error,” including
“Approved wrong firearm to transferee,” “Approved form never updated in NFRTR,”
and “Misspelled and/or Incomplete names,” by simply redefining these as an “Error”144
The discrepancy between the OIG and BATFE’s definition of “critical error”
requires an examination of the Congressional Intent for a definition of “critical error.”
The Congress, in 1968, defined “critical” information as: “(1) the identification of the
firearm, (2) date of registration, and (3) identification and address of the person entitled
to possession of the firearm.”145 Therefore, since the Congress felt these factors were
crucial to the database, it was Congress’s intent that the absence of, or error in, any of
these data fields correlates to a “critical error.” This definition is likely to yield a much
higher error rate; thus, the BATFE is unlikely to support such a determination, even
though the definition represents the original Congressional intent.
Eric M. Larson, a Senior Analyst at the U.S. Government Accountability Office,
whose complaint in his capacity as a private citizen to the House Committee on
Government Reform and Oversight resulted in the 1998 audits of the NFRTR, agreed that
the above are critical errors, “but they represent only the barest minimum guideline

143

Id.
Eric Larson, Work Papers on Errors in the National Firearms Registration and Transfer Record,
and Other Issues Regarding the Bureau of Alcohol, Tobacco, and Firearms, at 38 (Apr. 2. 1999), available
at http://www.nfaoa.org/documents/ATF_Significant_Error.pdf. That is just a portion of the entire Work
Papers, which can be found here: http://www.nfaoa.org/documents/Critiqueof1998IGreports.pdf.
145
U.S. Congress, Senate Committee on Judiciary, Report No. 1501: Gun Control Act of 1968, 90th
Cong., 2nd Sess., at 42 (1968), available at http://www.nfaoa.org/documents/SenateReport1501GCA1968.pdf.
144

36

Exhibit A, Pg. 355

standards.”146 Mr. Larson continued, “To be accurate and reliable, ‘the identification of
the firearm’ should include (1) serial number, (2) manufacturer, (3) name or model
number of firearm, and (4) type of firearm (machine gun, short-barreled shotgun, any
other weapon, and so forth).”147 Furthermore, “The ‘identification and address of the
person entitled to possess the firearm’ should include correct spelling of at least the last
name, and a current address.”148
While Mr. Larson’s guideline standards are more encompassing, the BATFE
appears to have determined that even those guideline standards were not sufficient as
critical fields in its interpretation of the Congressional mandate for the 1968 Amnesty and
included the registrant’s date of birth, social security number and other information.
Accordingly, in the January 1969 edition of Title 26 C.F.R, Section 179.201, the BATFE
declared,
The return, Form 4467, shall show the name, address, place of business or
employment, employer identification number or social security number,
and date of birth of the registrant, the date the firearm was acquired, the
place where the firearm usually is kept, the name, and address of the
manufacturer, the type, model, length of barrel, overall length (when
applicable), caliber or gauge, serial number, and other identifying marks
of the firearms, and if an unserviceable firearm, the manner in which it
was rendered unserviceable. Upon registering the firearm, the Director
shall retain the original Form 4467 as part of the National Firearms
Registration and Transfer Record.149 [emphasis added].
It seems a failure of due diligence for BATFE to fail to determine that the information
specified in the 1969 regulations is not “critical” information in audits of the NFRTR,

146

Letter from Eric M. Larson, Response to Questions asked by Joshua Prince, to Joshua Prince, at
4, dated Jan. 1, 2008, available at
http://blog.princelaw.com/assets/2008/1/5/Eric_Larson_letter_to_Joshua_Prince.pdf. Mr. Larson stated that
his comments reflect his personal opinions, and do not represent the policy or position of the U.S.
Government Accountability Office (GAO).
147
Id.
148
Id. at 4-5.
149
26 C.F.R. 179.201 (1969), available at http://blog.princelaw.com/assets/2008/1/9/1969-CFRATF-amnesty-regs.pdf.

37

Exhibit A, Pg. 356

when it specifically interpreted its Congressional mandate to require the Director to
collect this information on the Form 4467s to implement the 1968 amnesty, which was
designed to register unregistered firearms and reliably identify them and their owners.150
Nevertheless, given the evidence auditors discovered that the NFRTR was
inaccurate and incomplete, it is astonishing that the Treasury Department Inspector
General sought to distance himself from the issue of whether the NFRTR was accurate
enough to sustain criminal prosecutions:
Our [audit] scope did not include a review of the accuracy of ATF’s
certifications in criminal prosecutions that no record of registration of a
particular weapon could be found in the registry. We also did not evaluate
the procedures that ATF personnel use to search the registry to enable
them to provide an assurance to the court that no such registration exists in
specific cases. Accordingly, this report does not provide an opinion as to
the accuracy of the registry searches conducted by ATF.151
In 1998, the issues surrounding accuracy, or lack thereof, the NFRTR did not end
with the 1998 audit. Robert I. Landies, an Ohio firearms dealer, contacted the BATFE in
1998 regarding the fact that they had transferred NFA firearms for which he had not
submitted transfer applications, experienced “misplacement of transfer applications by
ATF,” and “receipt of approved registrations for firearms which do not appear in the
NFRTR.”152 The BATFE responded, “The implementation of a new database and the
realignment of branch functions and duties have significantly impacted upon the
150

In the light of trends toward using biometric identifiers, a gradual tightening of standards to
acquire state-issued identification and related documents, such as driver's licenses, particularly under
provisions of the Real ID Act, it may be advisable for the NFRTR to formally comply with federal
provisions for positive identification that are and will be implemented in future, in its standards for
positively identifying owners of NFA firearms. Similarly, BATFE might consider establishing standards
for the reliable identification of individual NFA firearms
151
U.S. Department of the Treasury, Office of Inspector General, Audit Report on Allegations
Concerning the Bureau of Alcohol, Tobacco, and Firearms’ Administration of the National Firearms
Registration and Transfer Record, OIG-99-018, at 4 (Washington, Dec. 18, 1998) available at
http://www.nfaoa.org/documents/TreasuryOIG-99-018-1998.pdf.
152
Letter from Jimmy Wooten, Assistant Director, Firearms, Explosives &Arson, Bureau of Alcohol,
Tobacco and Firearms, to Robert I. Landies, Ohio Ordnance Works, dated May 26, 1998, bearing symbols
F:SD:NFA:WJO 179.101 98-5593, available at
http://www.nfaoa.org/documents/LandiesLetterNFRTR1998.pdf.

38

Exhibit A, Pg. 357

processing of applications and notices in recent months.”153 The BATFE completely
sidestepped the issues of missing records in the NFRTR and transfers of NFA weapons to
other individuals, when no application for transfer was submitted. Yet, the BATFE
contends that the database is accurate.

E. 1999-2002

In 1999, the Disclosure Division of BATFE stated, in response to a FOIA request,
that the NFRTR data records submitted to the Department of Treasury Inspector General
were not accurate: “The report you refer to was submitted to the Inspector General of the
Treasury, with the understanding that the report was not accurate, because some of the
report functions associated with the database [NFRTR] are not working properly.”154
[original emphasis]. The BATFE continued, “Our letter dated April 20, 1999 advised you
of the inaccuracies we are still experiencing.”155 [emphasis added]. Thus, the Disclosure
Division, with responsibility to produce NFRTR records, contradicts the BATFE’s
statement in the 1998 audit that the NFRTR was accurate.156
In 2000, concerned about BATFE’s answers to three questions it posed about
errors in the NFRTR, the House Subcommittee on Treasury, Postal Service, and General

153

Id.
Letter from Averill P. Graham, Disclosure Specialist, Bureau of Alcohol, Tobacco and Firearms,
to Eric M. Larson, dated May 18, 1999, bearing symbols 112000 99-1420, available at
http://www.nfaoa.org/documents/AverillGrahamletter1999.pdf.
155
Id.
156
U.S. Department of the Treasury, Office of Inspector General, Audit Report on Allegations
Concerning the Bureau of Alcohol, Tobacco, and Firearms’ Administration of the National Firearms
Registration and Transfer Record, OIG-99-018, at 13 (Washington, Dec. 18, 1998), available at
http://www.nfaoa.org/documents/TreasuryOIG-99-018-1998.pdf. “ATF officials conclude that none of the
identified discrepancies would affect the accuracy of a certificate of non-registration prepared by the NFA
Branch for use in support of a criminal prosecution in United States district court.” Id.
154

39

Exhibit A, Pg. 358

Government Appropriations, which requested Dr. Fritz J. Scheuren, an internationally
recognized expert in administrative records and statistics, to evaluate the BATFE’s
responses to three questions asked by the Subcommittee.157 Dr. Scheuren, then affiliated
with The Urban Institute, more recently a past President of the American Statistical
Association and currently Vice President, Statistics, National Opinion Research Center,
University of Chicago, told the Subcommittee, regarding the technology question: “. . .
that very serious problems were uncovered in ATF’s recordkeeping systems. In fact, in
my own long experience [after reading the two Treasury Department Inspector General
audit reports on the NFRTR], I cannot think of any instance where poorer results were
obtained.”158 For the remaining questions on searchability of the NFRTR and heirs who
inherit firearms, Dr. Scheuren “found the ATF answer to be unresponsive and too general
to be useful,” and that “ATF indicated that it has no system to identify or track the
firearm transfers to heirs,” respectively and was thus unable to answer the
Subcommittee’s questions.159 Dr. Scheuren concluded:
I can only offer a qualified opinion on the ATF's answers but if their
responses are to be taken at face value, two conclusions arise: (1) ATF has
serious material weaknesses in its firearm registration system which it has
yet to acknowledge, and (2) the ATF steps taken to improve its
recordkeeping system clearly lack thoroughness and probably lack
timeliness as well.160
Dr. Scheuren offered three recommendations: 1. The BATFE should allow for outside,
independent audit organizations to give a more complete assessment; 2. the audits should

157

U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2002, Part 3, Statements of Members of Congress and Other Interested
Individuals and Organizations, 107th Cong., 1st Sess., at 23-26 (Washington, GPO, 2001), available at
http://www.nfaoa.org/documents/FritzScheuren.pdf. To see Dr. Scheuren’s resume, please find it at
http://www.nfaoa.org/documents/Scheuren_Resume_July_2007.pdf.
158
Id. at 24
159
Id.
160
Id. at 25.

40

Exhibit A, Pg. 359

be annual; and 3. the BATFE needs to implement some form of check to determine if an
individual, who owns a registered NFA weapon, died during that year.161 The BATFE,
however, at a separate appropriations hearing on its budget, rejected Dr. Sheuren’s
suggestions; for example, it stated that “strong internal controls for the NFRTR” would
result from improvements it was making, rendering an audit unnecessary, and declined to
specifically answer other questions.162
Then, in 2001, in responding to a concerned citizen, the BATFE stated, “This is in
response to your undated letters to the Bureau of Alcohol, Tobacco, and Firearms (ATF)
requesting a guarantee, either by letter or notarized statement, from ATF that your
registered National Firearms Act (NFA) firearms will never be confiscated as
contraband.”163 [emphasis added]. The BATFE continued, “We will not provide you with
such a guarantee.”164 [emphasis added]. One can only read such a statement in utter
confusion and disbelief. The BATFE has approved the transfer of a weapon; yet, it will
not guarantee it is lawful? What is the purpose of the BATFE’s approval if such is not a
guarantee? How can the BATFE approve an application by a law-abiding individual, only
to later classify the firearm as contraband and turn the individual into a criminal? While it
is conceivable that the statutory law may change prohibiting the ownership of such
firearms, a guarantee could be given based on statutory law remaining the same.
Nonetheless, it is clear that the BATFE does not wish for the Congress and Judiciary to
answer these questions.
161

Id.
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2002, Part 1, 107th Cong., 1st Sess., at 478 (Washington, GPO, 2002),
available at http://www.nfaoa.org/documents/NFRTRdocpack.pdf.
163
Letter from Arthur Resnick, Chief, National Firearms Act Branch, to [redacted] bearing symbols
901040:GS, 5320/2001-0161, available at http://www.nfaoa.org/documents/NoGuarantees.pdf.
164
Id.
162

41

Exhibit A, Pg. 360

Congress’ concern over the accuracy and reliability of the NFRTR resulted in the
following “report language” in BATFE’s Fiscal Year 2001 appropriation:165 “To address
the NFRTR accuracy problem in part, Congress appropriates $500,000 to improve ATF’s
‘operations, electronic filing systems, and database accuracy for the National Licensing
Center, Imports Branch, and the NFA Branch’ for each fiscal year, 2001 and 2002.”166
The language of the Fiscal Year 2003 appropriations report indicated the continuation of
such funding.167
In 2002, the Treasury Department Inspector General initiated a new audit of the
NFRTR.168 The purported purpose of this audit was to determine “Has ATF taken
appropriate steps to improve the completeness, accuracy, and processing times of the
NFRTR.”169 However,
On December 10, 2004, a former IG staff member who worked on the
original 1997-98 audits of the NFRTR, and also been assigned to work on
the new 2002 audit, said that the audit team was told to terminate this
audit before it was completed; box up the materials and ship them to the
IG; and that none of the audit materials were turned over to the
Department of Justice Inspector General when ATF was transferred to the
Department of Justice on January 24, 2003. Consequently, it appears that
the Department of Justice Inspector General may not be aware of the
problems with and Congressional concerns about the accuracy and
completeness of the NFRTR data base.170
F. 2003-2007
165

Congressional Research Service, Memorandum: ATF’s National Firearms Registration and
Trasfer Record: Issues Regarding Data Accuracy, Completeness, and Reliability, by William J. Krouse,
Nov. 28, 2005, at 16 (quoting H.Rept. 106-765 (H.R. 4871), at 23-24), available at
http://www.nfaoa.org/documents/CRSmemoNFRTR0001.pdf.
166
Id. (quoting H.Rept. 107-152 (H.R. 2590), at 20).
167
Id.
168
U.S. Department of the Treasury, Office of Inspector General, Annual Plan Fiscal Year 2003,
available at http://www.nfaoa.org/documents/TreasuryIG2003auditofNFRTR.pdf.
169
Id. at 74.
170
National Firearms Act Owners Association [NFAOA], http://www.nfaoa.org/resources.html, click
ATF and Department of Treasury Inspector General investigations and audits of the NFRTR, and related
documents, text of: Treasury IG starts new audit of NFRTR in 2002, then terminates it before completion
(last visited on Nov. 3, 2007).

42

Exhibit A, Pg. 361

The Department of Justice Inspector General did not address completeness and
accuracy of the NFRTR, until 2007, when it published a report of a limited review of the
NFRTR. There was no evidence the IG considered the 2005 testimony of BATFE
Inspector George Semonick in U.S. v. Wrenn, regarding the condition of the NFRTR.171
Inspector Semonick testified under oath that "there was a discrepancy" between firearms
records maintained by defendant Wrenn and those maintained in the NFRTR.172 He also
confirmed "that the records, the records kept by ATF, were deficient."173
In 2005, the Congressional Research Service [CRS], in response to a request by
Rep. Jim Gibbons, issued a memorandum on the “accuracy, completeness, and
reliability,” of the NFRTR, which summarized most Congressional hearing records, OIG
reports, other documented concerns of the NFRTR’s inaccuracy, and juxtaposes the
arguments BATFE offers against a future amnesty with rejoinders, which will be
addressed in the section Amnesty: the Nexus between the Congressional Intent and the
Inaccuracy of the NFRTR.174 There is no mention of, or evidence that, the Department of
Justice Inspector General considered the CRS memorandum on the NFRTR in its 2007
report.
The 2007 review by the Department of Justice Inspector General found, “[T]hat
since 2004, the NFA Branch has improved significantly the timeliness of both processing
NFA weapons applications and responding to customer inquiries. However, continuing

171

U.S. v. Wrenn, No. 1:04-045 (D.S.C. Nov. 8 2005); Transcript of Record, U.S. v. Wrenn, No.
1:04-045 (D.S.C. Nov. 8 2005), available at http://www.nfaoa.org/documents/SemonickTestimony.pdf.
172
Transcript of Record at 22, U.S. v. Wrenn, No. 1:04-045 (D.S.C. Nov. 8 2005), available at
http://www.nfaoa.org/documents/SemonickTestimony.pdf.
173
Id.
174
Congressional Research Service, Memorandum: ATF’s National Firearms Registration and
Trasfer Record: Issues Regarding Data Accuracy, Completeness, and Reliability, by William J. Krouse,
Nov. 28, 2005, at 1, available at http://www.nfaoa.org/documents/CRSmemoNFRTR0001.pdf.

43

Exhibit A, Pg. 362

management and technical deficiencies contribute to inaccuracies in the NFRTR
database.”175 [emphasis added]. The report declared,
Several NFA Branch personnel described the NFRTR programming as
obsolete, or becoming obsolete, and identified flaws that make it difficult
to work with the database and to ensure that decisions based on NFRTR
reports and queries are correct. The flaws include: (1) older NFRTR
records with empty data fields can improperly exclude the records from
search results, (2) the NFRTR can erroneously generate two separate
records for one weapon, (3) the system lacks controls to prevent
inconsistent data entry, (4) the system lists incorrect owners of NFA
weapons on queries and reports, and (5) when multiple weapons are
registered on a single form, a change entered in the NFRTR for one
weapon incorrectly applies the change to all the weapons listed on that
form.176
Furthermore, the report states, “[T]he NFA requires owners to retain the approved NFA
weapons application form as proof of a weapon’s registration and make it available to ATF
upon request. If the NFA weapons owner can produce the registration paperwork, ATF
assumes the error is in the NFRTR and fixes it in the database.”177 [emphasis added]. Thus,
the DOJ Inspector General determined that the NFRTR is inaccurate because firearm
registrations are missing; hence, it logically follows that some legally registered firearms
would not be identified in a diligent search of the NFRTR. This clearly exposes an
individual, who lost his/her paperwork, to the hazards of unwarranted federal prosecution,
due to the inaccuracy of the NFRTR.

With regards to the Congressional money earmarked to correct the inaccuracies in
the NFRTR,
175

U.S. Department of the Justice, Office of Inspector General, The Bureau of Alcohol, Tobacco,
Firearms and Explosives’ National Firearms Registration and Transfer Record, I-2007-006, at iii (June
2007), available at http://www.nfaoa.org/documents/DOJ-OIG2007NFRTRreport.pdf.
176
Id. at viii.
177
Id. at 31. The report fails to define what it terms “the error . . . in the NFRTR;” logically, it could
only mean that BATFE (1) failed to update the record of an approved transfer of a registered firearm,
having lost its copy of the approved transfer; (2) lost all records of the registered firearm, as occurred in the
Napolilli case; and/or (3) some other situation whereby BATFE was unable to locate the record of a
registered NFA firearm. Presumably, a FOIA request for Work Papers from this “review” of the NFRTR
could clarify this critical issue, but the DOJ has refused the portion of my FOIA seeking such Work Papers.
An appeal is pending.

44

Exhibit A, Pg. 363

ATF received budget allocations in fiscal year (FY) 2001 and FY 2002 for
FIT [Firearms Integration Technology]; however, ATF reallocated the
funding to another priority mission, which exhausted the funding by 2004.
Any continued work on FIT was dependent on congressionally earmarked
funds (which were exhausted during 2005) and the acquisition of specific
funds to perform specific tasks.178
The report continued on that a special “Information Technology Specialist” position was
established to “determine the best approach to correcting errors in NFRTR records.”179
Thus, as of 2007, the DOJ-OIG and BATFE acknowledge that the NFRTR is inaccurate.
Nonetheless, the report concluded,
Despite the concerns of both the citizens who wrote the letters to Congress
that prompted our review and federal firearms dealers that errors in the
NFRTR leave them vulnerable to unwarranted sanctions and criminal
charges, we concluded, based on ATF documents and interviews with
ATF personnel and NFA weapons industry representatives, that errors in
NFRTR records have not resulted in inappropriate criminal charges
against individuals or licensees.180
What is left unsaid in the 2007 report is what occurs when the BATFE decides to
prosecute individuals on a charge of Possession of an Unregistered Firearm; to encourage
the “voluntary abandonment” of firearms to ATF; or to seize and forfeit firearms for
which ATF claims it can find no registration record in the NFRTR. It would be illogical
for the BATFE to prosecute individuals who were able to procure copies of their NFA
registration paperwork. But, what about those who could not because such paperwork
was lost, due to misplacement, flood, fire, or other acts of God? What happened in those
cases? The 2007 report does not say, and the Department of Justice Inspector General
apparently declined to try and find out, demonstrating a failure of due diligence.
The methodology of the 2007 report is also troubling because it appears to rely on
statements by the BATFE staff that uses the NFRTR, to characterize the accuracy and

178
179
180

Id. at viii.
Id.
Id. at x.

45

Exhibit A, Pg. 364

completeness of the NFRTR, rather than to conduct an audit according to GAGAS. A
more conclusive and reliable way to conduct an audit or review of the accuracy and
completeness of the NFRTR would be to (1) obtain a random sample of federally
licensed NFA firearms dealers, (2) visit each dealer and conduct an independent
inventory of NFA firearms in stock, and (3) compare those lists to records of firearms in
the NFRTR. Such a reverse check on the NFRTR would likely yield a better
characterization of the accuracy and completeness of the NFRTR than occurred by using
the Department of Justice Inspector General’s methodology in its review of the NFRTR.
While the report is appropriately characterized as a “review” rather than an audit,
no doubt for that reason, it is still striking how inaccurate the NFRTR data are reported to
be, and that the NFRTR data were – as will be discussed shortly – “These errors affect
the NFRTR’s reliability as a regulatory tool when it is used during compliance
inspections of federal firearms licensees.”181 The DOJ-OIG’s failure to investigate the
effect of these errors when the NFRTR is used to prosecute citizens for Possession of
Unregistered Firearm seems like a failure of due diligence.
Clearly, the Inspector General’s report is inappropriately based merely on an
assumption of trustworthiness of BATFE statements, rather than independent verification
of such statements based on scientific sampling procedures and application of GAGAS,
and estimating true “critical error” rates. How can one conclude that errors in the NFRTR
records have not resulted in inappropriate criminal charges against individuals or
licensees, when 1. the absence of a record could clearly not be known, if it is missing
from the NFRTR, as the DOJ-OIG determined; 2. the absence of the record of a
registered weapon, caused ATF to suspect Noel Napolilli of counterfeiting the
181

Id. at iii.

46

Exhibit A, Pg. 365

registration document he produced, and later to determine the firearm was contraband in
the absence of documents that could have settled its classification definitively;182 3. then
BATFE NFA Branch Chief Busey’s statement that the accuracy rate, prior to his
directorship, was at 49-50%;183 4. the loss of 475 records of one J. Curtis. Earl;184 and 5)
at least three OIG reports that reliably document “critical errors” in the NFRTR? Clearly,
as Mark Twain said, “The more you explain it, the more I don't understand it.”185 How
the DOJ-OIG comes to this conclusion, in light of the aforementioned instances, is a
mind boggling wonder of the world. Furthermore, as the DOJ-OIG declares, “[T]he
NFRTR database has technical problems, and its software programming is considered by
the NFA Branch to be flawed. The lack of consistency in processing procedures,
combined with database technical issues, results in errors in records, reports, and queries
produced from the NFRTR that affect its reliability.”186
The only conclusion, which makes sense, is that the DOJ-OIG sought to protect
the BATFE; yet, the DOJ-OIG could not perjure itself to completely protect the BATFE.
The fact that the DOJ-OIG declares the NFRTR to be inaccurate; yet, refuses to
acknowledge that law-biding citizens may have had criminal charges brought against
him/her, is a continuing failure of logic and of due diligence by federal law enforcement.
182

U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 1999, Part 5, Testimony of Member of Congress and Other Interested
Individuals and Organizations, 105th Cong., 2nd Sess., at 33-34 (Washington, GPO, 1998), available at
http://www.nfaoa.org/documents/NoelNapolilli.pdf.
183
BATFE/NFRTR Roll Call Training Video, Oct. 1995, available at
http://www.nfaoa.org/documents/rollcall_highlights.mp4 or as text
http://www.nfaoa.org/documents/BuseyTranscript.pdf.
184
Letter from David T. Hardy, Esq., to Ernest S. Istook, Jr., Chairman, Subcommittee on Treasury,
Postal Service and General Government, dated April 10, 2001, available at
http://www.nfaoa.org/documents/BardHard.pdf.
185
Mark Twain
186
U.S. Department of the Justice, Office of Inspector General, The Bureau of Alcohol, Tobacco,
Firearms and Explosives’ National Firearms Registration and Transfer Record, I-2007-006, at 11 (June
2007), available at http://www.nfaoa.org/documents/DOJ-OIG2007NFRTRreport.pdf.

47

Exhibit A, Pg. 366

This report also inquired as to training of new individuals, who would input
information into the NFRTR.
One Examiner described the training as ‘sloppy’ and further stated:
‘Someone [a more experienced staff member] would sit with the new
Examiners on occasion to go over how to use the NFRTR, but it was not
for a long time and was not consistent . . . . Examiners just started working
on the computer.187
Yet, these are the employees upon whom law-abiding individuals rely upon to do their
job with the utmost accuracy. An erroneous entry can result in an innocent citizen being
criminally charged; however, as the report would have one believe, this is a fallacy. I
proffer that the DOG-OIG try to explain this alleged fallacy to Mr. Napolilli, who was
unjustly deprived of valuable personal property, and all those others who are in jail
because they lost their paperwork. Incredibly, the report states:
Staff members told us that as a result of inadequate and unstructured
training at the beginning of their employment, they were uncertain how to
use the NFRTR, lacked skill in processing the applications or conducting
searches, were not familiar with the NFA, and did not have all the
information necessary to accomplish their jobs. Staff stated that it was
difficult to become familiar with the NFRTR and navigate through the
database, a vital skill needed to process applications and conduct records
checks. One Examiner told us that because of poor training not all staff
members are “on the same page” on how they approach the work and
applications may be processed incorrectly. 188 [emphasis added].
The report determined that, “Incomplete and inaccurate training leads to errors in the
NFRTR and in decisions based on the NFRTR.”189
The most important implication for the NFRTR is the report’s finding: “If the
NFA weapons owner can produce the registration paperwork, ATF assumes the error is in
the NFRTR and fixes it in the database,” because it fulfills the Department of Justice

187
188
189

Id. at 21.
Id. at 21-22.
Id. at 22.

48

Exhibit A, Pg. 367

standard, articulated to the Congress in 1979, for requiring a new amnesty period.190
Specifically, if the BATFE determines that "a particular individual or weapon is
registered" and BATFE finds that its "files are missing," then "the only solution would be
to declare another amnesty period.”191 Unfortunately, the Department of Justice Inspector
General fails to address this critical point anywhere in its “review” of the NFRTR,
despite its outrageous finding that “files are missing” from the NFRTR. As Firearms law
expert and attorney Stephen P. Halbrook commented: “[I]f the owner or the executor of a
deceased owner cannot find the registration paperwork, which may be lost or destroyed,
and if the record cannot be found in the NFRTR, then a voluntary abandonment of the
firearm may be inducted or even a criminal prosecution initiated. On such issues the
report is not sufficiently informative.”192
In an effort to obtain current expert opinion on the accuracy of the NFRTR, I
contacted Dr. Fritz Scheuren, an internationally recognized expert in administrative
records and statistics and asked if he would be willing to update his 2000 Congressional
Testimony and opine whether the NFRTR is sufficiently accurate to be used as evidence
in a criminal proceeding.193 He graciously responded to my request by sharing his
thoughts and forwarding his updated findings to House of Representatives, Subcommittee

190

Id. at 31.
U.S. Department of Justice, Criminal Division, Memorandum: Response to letter from Senator
McClure, by Philip B. Heymann and Lawrence Lippe, Nov. 29, 1979, at 4, available at
http://www.nfaoa.org/documents/DOJamnestyMemo1979.pdf.
192
STEPHEN HALBROOK, FIREARMS LAW DESKBOOK, 545 (Thomson/West 2008).
193
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2002, Part 3, Statements of Members of Congress and Other Interested
Individuals and Organizations, 107th Cong., 1st Sess., at 23-26 (Washington, GPO, 2001), available at
http://www.nfaoa.org/documents/FritzScheuren.pdf. To see Dr. Scheuren’s resume, please find it at
http://www.nfaoa.org/documents/Scheuren_Resume_July_2007.pdf. I also contacted other experts who
might have informed the issues addressed in this article, including former IRS Commissioner Sheldon S.
Cohen and Philip B. Heymann, co-author of the 1979 Department of Justice determination of standards
required to establish a new amnesty period, but they declined comment.
191

49

Exhibit A, Pg. 368

on Commerce, Justice, Science, and Related Agencies, Committee on Appropriations,
House of Representatives. Dr. Schueren wrote, “I again reviewed the NFRTR situation
and found that ATF still has serious material weaknesses in its firearm registration system
that it has failed to recognize. In my considered professional judgment, these errors render
the NFRTR questionable as a source of evidence in federal law enforcement.”194 [emphasis
added].

VI. The Absence of Paperwork is not a Defense

The issue of NFA paperwork is particularly critical regarding machineguns. The
reason is that under 18 U.S.C. § 922(o), which bans the making of new machineguns, the
Government does not have to prove that a machinegun is not registered to convict the
defendant of illegally possessing it.195 The Government has only to allege that the
machinegun is illegally possessed; the defendant may only prove lawful possession
through an affirmative defense, by producing his or her approved NFA paperwork.196
Thus, despite having the means, capabilities, and Congressional mandate to ensure the
NFRTR is accurate and complete, the Government is not accountable for losing or
deliberately destroying paperwork that would exonerate an innocent defendant.197
Where does this leave the individual who lawfully registered his/her weapon, but
due to natural disaster, such as hurricanes, wildfires, floods, and earthquakes, loses
194

Letter to Alan B. Mollohan, Chairman, Subcommittee on Commerce, Justice, Science, and
Related Agencies, Committee on Appropriations, by Fritz J. Scheuren, VP Statistics NORC, 1 (Dec. 11
2007); available at http://www.nfaoa.org/documents/Scheuren_Committee_Chair_Letter.pdf.
195
18 U.S.C. § 922(o); United States v. Just, 74 F.3d 902, 904 (8th Cir. 1996);
United States v. Gravenmeir, 121 F.3d 526, 528 (9th Cir. 1997); United States v. Franklyn, 157 F.3d 90, 93
(2d Cir. 1998).
196
Id.
197
26 U.S.C. § 5841.

50

Exhibit A, Pg. 369

his/her paperwork through no fault of his/her own? Do we as a society want these
individuals to risk life and limb to save their paperwork for fear that the Government has
lost its copy of the paperwork? What if the individual is denied access to his paperwork
due to a State of Emergency? To force an individual to risk life and limb or face
conviction and imprisonment, for a lawfully registered firearm, goes against our sense of
justness and fairness. But, how often does this occur?

A. Error Letters

An “Error Letter” is a letter sent by the BATFE to the applicant seeking to
transfer, register, or determine the status of, a NFA firearm. An Error Letter declares,
“We do not show [serial number] as being registered [in the NFRTR]. Please send proof
of ownership.”198 In my conversations with numerous dealers, they acknowledge that
these Error Letters are extremely common and most, if not all, NFA dealers have a pile of
them in their records; however, most dealers are fearful of retribution by the BATFE if
they disclose these records.199 Nevertheless, NFA dealer Saeid Shafizadeh, owner of Pars

198

Department of the Treasury, Bureau of Alcohol, Tobacco, and Firearms, Error Letter,
C:F:N:ERRORLTR, available at
http://blog.princelaw.com/assets/2007/12/28/Whited_Out_Error_Letter.pdf. This letter has been redacted
(whited out) because it is personal tax information, since the NFRTR was in error, and the weapon had
been legally registered. Most individuals are fearful of sharing this information for fear of retribution.
Nonetheless, there are/have been several different forms of Error Letters, that this author is aware of, and
can be found at: http://www.nfaoa.org/documents/1999statement.pdf at 15;
http://blog.princelaw.com/assets/2007/12/28/WheatonCase.pdf at 3-4. Both of these Error Letters were in
error, meaning that the individual had legally registered the firearm and luckily had proof of the
registration.
199
This information was obtained in private conversation between myself and six dealers. These
dealers asked to remain anonymous, due to fear of retribution. They all informed me that since they deal
with the BATFE on a daily business, their livelihoods would be at stake by disclosing the information. It
must also be noted that all Error Letters would need the approval of the past and current registrant, since it
is tax information, which cannot be disclosed without such approval, unless redacted to veil pertinent tax
information.

51

Exhibit A, Pg. 370

International, received an Error Letter in 2007, which has been misplaced, but he retained
a copy of his response to the BATFE and made it publicly available.200 In his response,
he included a copy of the BATFE approved Form 3 and asserted concerns over the
accuracy and completeness of the NFRTR.201 Most troubling is the fact that the BATFE
approved his Form 3 on April 12, 2007 and by June 4, 2007, the BATFE had no record of
the approved form.202
Since an Error Letter is based on a determination by the BATFE that a firearm is
not in the NFRTR, meaning the BATFE takes the position that the firearm is not
registered and thus, the information about the firearm is not protected tax information,
this author submitted a Freedom of Information Act [FOIA] request for all Error
Letters.203 The BATFE denied the request, “Because all information on such registration
forms is collected under the tax code, release of this information would be in direct
violation of the Tax Reform Act.”204
The denial of the FOIA is illogical by the plain meaning of an Error Letter, unless
the BATFE is willing to admit that all Error Letters are in error, meaning that all the
Error Letters sent by the BATFE, based on a search of the NFRTR, were sent to
individuals who possessed legally registered firearms, for which they had approved
200

Letter to Mr. Kenneth E. Houchens, Chief National Firearms Act Branch, NFA Letter Control
Number [redacted, Title II Firearms Serial Number [redacted ], by Saeid Shafizadeh, (July 11, 2007),
available at http://www.nfaoa.org/documents/ParsLetter2007.pdf. Mr. Warren Kreiser, in a private
communication, informed me that he also received two Error Letters about one year ago, to which he
submitted BATFE approved Forms.
201
Id.
202
Id. It must be noted that Mr. Shafizadeh has documented numerous issue with the BATFE and
errors in the NFRTR over the years. See Mr. Shafizadeh declaration, available at
http://www.gunowners.com/ip10.htm.
203
Letter to Ms. Alma McCoy, BATFE Disclosure Specialist, Freedom of Information Act request
for Error Letters, by Joshua Prince, (Nov. 2 2007), available at
http://blog.princelaw.com/assets/2007/12/28/Response_to_BATFE_CATEGORY_FOIA_Response.pdf.
204
Letter to Joshua Prince, Freedom of Information Act request for Error Letters, by Alma McCoy,
BATFE Disclosure Specialist, (Dec. 14, 2007), available at
http://blog.princelaw.com/assets/2007/12/28/BATFE_Error_Letter_Response.pdf.

52

Exhibit A, Pg. 371

paperwork. However, in all likelihood, there are a mix of Error Letters which are Correct
and Error Letters which are Incorrect.
An Error Letter which is Correct is one which correctly declares that a specific
firearm is not registered, because it never was registered. Per the BATFE’s refusal of the
FOIA, it is impossible for something that does not exist to be covered as tax information.
Pursuant to 26 U.S.C. 6103(b), tax information must fall within the definition of “return
information.”205 The absence of a record is not included in the definition of “return
information.”206 Hence, the BATFE’s response, “Because all information on such
registration forms is collected under the tax code” is immaterial, since the request was for
“Error Letters” stating that no registration exists. Thus, if no registration exists, it is not
and cannot be covered by “tax information” or any other exception to FOIA requests and
does not violate the Tax Reform Act.
An Error Letter which is Incorrect is one where, although the NFRTR does not
show the weapon to be registered, the individual can provide proof that the weapon was
correctly registered and the NFRTR is in error.207 In essence, the Error Letter is in error,
which would connote that some of the information on these Error Letters could be
covered by the Tax Reform Act. However, the BATFE releases summary statistics of
NFRTR transactions, as well as statistics on machineguns and other NFA firearms, in the

205

26 U.S.C. §§ 6103(b)(1)-(2).
§ 6103(b)(2).
207
Department of Justice Office, Inspector General, Evaluation and Inspections Division, The
Bureau of Alcohol, Tobacco, Firearms and Explosives' National Firearms Registration and Transfer
Record, Report Number I-2007-006, Washington, D.C.: Department of Justice, June 2007, at 31, available
at http://www.nfaoa.org/documents/DOJ-OIG2007NFRTRreport.pdf. “Additionally, the NFA requires
owners to retain the approved NFA weapons application form as proof of a weapon’s registration and make
it available to ATF upon request. If the NFA weapons owner can produce the registration paperwork, ATF
assumes the error is in the NFRTR and fixes it in the database.” Id.
206

53

Exhibit A, Pg. 372

publication Commerce in Firearms.208 The BATFE, by its own actions and publications,
acknowledges that summary statistics can be disclosed, including currently registered
NFA firearms, if aggregated into large categories where individuals cannot be identified.
Thus, the BATFE legally can provide summary statistics on all Error Letters which are
Incorrect, as well as Correct, where all identifiable or protected information is redacted or
not included.
This author filed an appeal to the BATFE’s decision, since these Error Letters
would depict the current accuracy, or lack thereof, of the NFRTR, especially since a
complete GAGAS audit has not been conducted.209 If, as many federally licensed NFA
dealers contend, the BATFE has issued hundreds, or even thousands, of these Error
Letters, it would depict to a jury the likelihood, or absence thereof, that a criminal
defendant may have legally registered his/her firearm, but the BATFE lost his/her
registration. More importantly, the fact that the number of NFA firearms registered in the
NFRTR continues to rise, may depict that the BATFE has sent out numerous Error
Letters which were in error, illustrating the inaccuracy of the NFRTR. 210

B. The BATFE’s Improper Denial of Exculpatory Evidence

208

ALCOHOL, TOBACCO, AND FIREARMS BUREAU, COMMERCE IN FIREARMS IN THE UNITED STATES
(2000), available at http://permanent.access.gpo.gov/lps4006/020400report.pdf.
209
Letter to Office of Information and Privacy, Appeal of Decision from Freedom of Information Act
request for Error Letters, by Joshua Prince, (Dec. 19, 2007), available at
http://blog.princelaw.com/assets/2007/12/28/Error_Letter_Appeal.pdf. Appeal still pending.
210
Eric Larson, Work Papers on Errors in the National Firearms Registration and Transfer Record,
and Other Issues Regarding the Bureau of Alcohol, Tobacco, and Firearms, inserted between pages 5 and 6
(Apr. 2. 1999), available at http://www.nfaoa.org/documents/Critiqueof1998IGreports.pdf at 18-26. This
depicts that in each year, from 1992 to 1996, the total of machinegun owned in the past year, is drastically
different, sometimes a variation of over 5,000 machineguns, than the previous years declared total
machinegun owned. Id. For instance, in 1995 the total amount of machine guns owned was 21,742; yet in
1996 listing, the total number of machineguns for 1995 is 16,437. Id. at 18-20. This is a difference of 5,305.

54

Exhibit A, Pg. 373

The BATFE’s efforts to cover up errors in the NFRTR, under conditions
applicable to the Tax Code, must be viewed in light of BATFE withholding exculpatory
information in a criminal trial under the false premise that such information was
protected under the Tax Code. Suppose BATFE wanted to convict a defendant of
Possession of an Unregistered Firearm, in a case where the defendant, through no fault of
his or her own, lost the NFA paperwork on his or her firearm, and BATFE had such
paperwork and decided not to disclose it, knowing that would ensure the defendant’s
illegal conviction? The BATFE’s conduct in a recent criminal case illustrates that
BATFE is capable of doing just that.
In U.S. v. Olofson,211 “Mr. Olofson, a Drill Instructor in the National Guard, was
asked by Robert Kiernicki to teach him how to shoot a firearm.”212 Mr. Olofson did so
and after Mr. Kiernicki was proficient with firearms, Mr. Olofson lent Mr. Kiernicki a
used AR-15 rifle.213 On one occasion, the rifle malfunctioned resulting in three rounds
being fired.214 The BATFE’s Firearm Technology Branch [FTB] tested the weapon and
declared, it “is just a rifle.”215 However, Special Agent in charge Jody Keeku was not
pleased with this outcome and had the firearm sent back to the FTB for a new test to be
performed with irregular, but commercially available, ammunition.216 This time, Special

211

United States v. Olofson, No. 06-CR-320 (E.D. WI. Jan. 1, 2008). While the documents have not
yet been made available, many of the documents have been posted by Mr. Olofson at
http://www.ak47.net/forums/topic.html?b=1&f=6&t=507483&page=1.
212
Post by Len Savage, Firearms Design Expert, available at
http://www.subguns.com/boards/mgmsg.cgi?read=638985.
213
Id.
214
Id.
215
Id. This declaration is an expression declaring that the rifle is not a machinegun but a regular
semiautomatic rifle.
216
Id.

55

Exhibit A, Pg. 374

Agent Keeku was pleased with the results. The FTB determined that it was a machinegun
when used with the special ammunition.217
The case now becomes extremely interesting since Mr. Olofson purchased the
semiautomatic rifle from Olympic Arms, which, when manufactured, was legally
manufactured with M-16 fire control parts.218 More importantly, at the time of
manufacture, BATFE sent a letter to manufactures declaring that the use of such fire
control parts did not constitute a machinegun, because those parts, by themselves, should
not, without some major malfunction, cause the rifle to fire fully automatic.219 Moreover,
in 1986, BATFE requested that Olympic complete a “safety recall” due to the possibility
of AR-15s, previously built with M-16 fire control parts, “malfunctioning,” resulting in
the rifle going “full auto.”220
When the defense sought to acquire the abovementioned letters, in a motion to
compel discovery, the BATFE Chief Counsel argued that for the Honorable Charles N.
Clevert to decide the relevance of or exculpatory nature of the documents, Judge Clevert
would have to see the document; however, the BATFE “claims it is privileged from
disclosing correspondence with persons or companies on guns because it is a tax issue”
under 26 U.S.C. 6103.221 More disconcerting, BATFE Chief Counsel declared, through

217

Id.
Id. The general difference between the AR-15 and M-16 is the full auto capability of the M-16;
however, it must be noted there are some AR-15s, which are full auto. There are numerous part which
make a M-16 full auto, none of which, independently, can transform a semiautomatic AR-15 into a
machinegun. When Olympic Arms manufactured the rifle in question, it was built with an M-16 trigger,
disconnector, and hammer; the combination of which, still would not transform the rifle into a machinegun.
219
Private Correspondence with Len Savage, on file with author.
220
Post by Len Savage, Firearms Design Expert, available at
http://www.subguns.com/boards/mgmsg.cgi?read=638985.
221
Mr. Olofson’s recount of the events, available at
http://www.ak47.net/forums/topic.html?b=1&f=6&t=507483&page=29.
218

56

Exhibit A, Pg. 375

AUSA Haanstad, “The Court will have take our word, that the documents in question
contain tax information, and contain no exculpatory evidence.”222
While it is clear that the BATFE letters are not tax information, pursuant to 26
U.S.C. 6103, the BATFE is willing to assert whatever is necessary to obtain the ends to
which it seeks. Instead of these letters informing the jurors on the BATFE’s prior
positions and the alleged failure of Olympic to comply with the BATFE’s requested
safety recall on Mr. Olofson’s rifle, Mr. Olofson was found guilty of transfer of a
machinegun.223 Is this the justice that we seek? Do we honestly want to send Mr.
Olofson, a former National Guard, to jail because his weapon malfunctioned, through no
fault of his own?
This issue of a firearm malfunctioning, resulting in fully automatic fire, was
brought up in U.S. v. v. Aguilar-Espinosa.224 The court declared, “[T]he law 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.”225 If we decide to prosecute individuals
whose firearms malfunction, the results could be devastating.226 As firearms law expert
Stephen Halbrook states, “Staples illustrates that the malfunction defense is alive and
222

Post by Len Savage, Firearms Design Expert, available at
http://www.subguns.com/boards/mgmsg.cgi?read=638985.
223
Mr. Olofson’s recount of the events, available at
http://www.ak47.net/forums/topic.html?b=1&f=6&t=507483&page=29. See also,
http://www.wnd.com/news/article.asp?ARTICLE_ID=59650.
224
United States v. Aguilar-Espinosa, 57 F. Supp. 2d 1359 (D. Fla. 1999).
225
Id. at 1362-63; cited to in STEPHEN HALBROOK, FIREARMS LAW DESKBOOK, 453-454
(Thomson/West 2008).
226
If such occurs, the law-abiding citizen whose firearm malfunctions will not seek corrective
measures, for fear of prosecution. Where will all these “malfunctioning” firearms go? Will they be buried?
Will they be thrown into the trash? Will they end up on the Black Market? Surely, none of these are a
desired result but we must be cognizant of results of our actions.

57

Exhibit A, Pg. 376

well as a jury issue;”227 however, the malfunction defense will be moot if the BATFE is
allowed to dictate to the court what constitutes tax information, which, in the BATFE’s
opinion, includes legal interpretations of the law. The result of denying exculpatory
evidence will be even more devastating for a system of justice that prides itself on
ensuring that the innocent are not found guilty.

C. Accuracy and Completeness of the NFRTR

How accurate is the NFRTR? Nobody outside of the BATFE knows, but a
summary table of NFRTR errors compiled from public documents is not encouraging.228
In 1994, documents released by BATFE in response to a FOIA stated an examination of
25,611 NFRTR records disclosed 1,567 “Errors” (6%) and 373 “Significant Errors” (1%)
while another 36,903 records had 2,155 “Errors” (6%); however, the BATFE changed the
definition of most “Significant Errors” to “Errors,” in an obvious effort to manipulate the
statistics.229 In 1998, the Treasury Department Inspector General used various definitions
of “critical” error, which produced different estimates, only some of which are known.230
The “critical” error rate for a sample of about 140 Forms 4467 was calculated to be 4.3%
by one definition (in the published report) and 18.4% by another definition (in

227

STEPHEN HALBROOK, FIREARMS LAW DESKBOOK, 440 (Thomson/West 2008) (citing to United
States v. Staples, 971 F.2d 608 (10th Cir. 1992)).
228
Summary of Errors in the National Firearms Registration and Transfer Record Disclosed in
Audits or Reviews by ATF or the Treasury Department Inspector General, 1994 to 1998, available at
http://www.nfaoa.org/documents/SummaryNFRTRerror1.pdf.
229
Eric Larson, Work Papers on Errors in the National Firearms Registration and Transfer Record,
and Other Issues Regarding the Bureau of Alcohol, Tobacco, and Firearms, at 38 (Apr. 2. 1999), available
at http://www.nfaoa.org/documents/ATF_Significant_Error.pdf. That is just a portion of the entire Work
Papers, which can be found here: http://www.nfaoa.org/documents/Critiqueof1998IGreports.pdf.
230
See Section V Congressional Hearings/OIG Audits, subsection d. 1998.

58

Exhibit A, Pg. 377

unpublished audit Work Papers).231 The “critical” error rates for “Letter” and “Other”
categories were 8.4% and 7.9%, respectively, in the published 1998 audit report, and
were redacted completely in the unpublished audit Work Papers. It is difficult to
conclude that the NFRTR is accurate and complete from these data, but even this limited
audit work proves that the type(s) and extent of “critical” errors in the NFRTR remain
unknown.232 Given the repeated and consistent failures of the Treasury Department
Inspector General and the Department of Justice Inspector General to perform due
diligence, the only way to determine the accuracy and completeness of the NFRTR may
be to contract with an outside entity to conduct a GAGAS audit, conforming with the
Congressional intent of what constitutes a “critical” error.
Since all prosecutions for Possession on an Unregistered Firearm are based on a
search of the NFRTR, its accuracy and completeness are crucial in any proceeding.
Accuracy relates to a determination of how accurate the data in a database must be;233
whereas, completeness ensures that “[n]o records are missing and that no records have
missing data elements.”234 Moreover, in many databases, including the NFRTR,
“[m]issing entire records can have disastrous consequences.”235 Since most of the data
errors in the NFRTR are due to data entry failures and deletions, the BATFE needs to
institute a database entry system that edits the entry “to ensure that all data entering the
database/list are of high quality.”236 More importantly, “The role of editing needs to be

231

Id.
See, Summary of Errors in the National Firearms Registration and Transfer Record Disclosed in
Results of Audits or Reviews by ATF or the Treasury Department Inspector General, 1994 to 1998,
available at http://www.nfaoa.org/documents/SummaryNFRTRerror1.pdf
233
THOMAS N. HERZOG, FRITZ J. SCHEUREN & WILLIAM E. WINKLER, DATA QUALITY AND RECORD
LINKAGE TECHNIQUES 8 (Springer Science+Business Media 2007).
234
Id. at 10.
235
Id.
236
Id. at 11.
232

59

Exhibit A, Pg. 378

re-examined, and more emphasis placed on using editing to learn about the data
collection process, in order to concentrate on preventing errors rather than fixing
them.”237
A way to ensure data accuracy is through “record linkage techniques” such as
linking two or more databases. One method for ensuring accuracy is to require that all
applications be entered by at least two different BATFE examiners, into at least two
separate and distinct databases, and if the entries do not match, require the data to be reentered until the databases match exactly, a standard practice currently in use by survey
organizations and other entities.238 Currently, the NFRTR is a single database where
individual examiners input the information into the database. However, this is only part
of the problem with the current NFRTR.
Since a search of the NFRTR database is deterministic, meaning a record can only
be found if it matches exactly to that which is searched, any misspellings, omissions, or
unusual characters, will result in no match.239 If, however, the database allowed for
probabilistic searches, meaning the search will yield results identical to and similar to the
search, in order from most similar to least similar, there would be a much higher
probability of finding an erroneous entry.240 Thus, it is crucial that the NFRTR database
software be modified for probabilistic searches to ensure that lawfully registered firearms
can be found, where BATFE examiners omit, or misspell data entries; otherwise, an
innocent defendant may be convicted, if he/she lost his/her paperwork, and the
deterministic search yields no results, due to errors in the original entry.

237
238
239
240

Id.
Id. at 11-12.
Id. at 82-83.
Id. at 83-92.

60

Exhibit A, Pg. 379

D. Firearm Law Experts on the Absence of Paperwork and Status of the NFRTR

Attorney Stephen Halbrook, author of Firearms Law Deskbook, and firearms law
expert, declared, “[C]ontroversy over the accuracy of the NFRTR continues unabated.
The BATF has not acknowledged the OIG’s findings of error and various discrepancies
in the NFRTR, taken appropriate corrective actions, or fully answered questions about the
NFRTR posed by the Subcommittee on Treasury, Postal Service, and general
Government.” 241 He continues,
These errors or discrepancies include the OIG’s findings that an unknown
number of NFA documents were destroyed by BATF contract employees;
that ATF may not have followed correct legal procedures in registering
thousands of NFA firearms after the amnesty period …. ; that more than
100,000 NFA firearms are currently registered to persons who may be
deceased.242
In August 2001, during a compliance inspection of a NFA dealer, “The BATF Examiner
determined that 60% of the NFA firearms listed in the BATF’s NFRTR computer
printout were no longer in the dealer inventory. In fact, the dealer had transferred all of
these firearms to various transferees pursuant to authorization by BATF.”243
Most disconcerting is his determination, “[I]f the owner or the executor of a
deceased owner cannot find the registration paperwork, which may be lost or destroyed,
and if the record cannot be found in the NFRTR, then a voluntary abandonment of the
firearm may be induced or even a criminal prosecution initiated.”244 He further asserts,
“It is unclear whether the BATF is capable of correcting the errors identified by the

241
242
243
244

STEPHEN HALBROOK, FIREARMS LAW DESKBOOK, 535 (Thomson/West 2008).
Id. at 535-36.
Id. at 538.
Id. at 545.

61

Exhibit A, Pg. 380

OIG.”245 In 2004, a former “OIG staff member …. stated ‘We found there were still
serious problems with the NFRTR data that, to the best of my knowledge, are still
uncorrected.’”246 Mr. Halbrook asserts, “[A]n amnesty period should be declared to allow
the registration of firearms with an uncertain registration status.”247 He further advises,
“In any prosecution for NFA offenses in which lack of registration is an element of the
offense, counsel should carefully consider whether this element can be proven beyond a
reasonable doubt in the light of the above considerations.”248
Lastly, in a 2001 letter to the House Subcommittee on Treasury, Postal Service,
and General Government, he declared, “Unless and until the BATF can conform its
records to acceptable standards of accuracy, the Subcommittee should consider
legislation to prohibit the use of the NFRTR database in civil and criminal
proceedings.”249
Attorney Richard Gardiner, another expert in firearms law, declared,
In my opinion, any system of records that is as unreliable as the NFRTR
cannot be used to prove, beyond a reasonable doubt, that a particular
firearm is not registered. Once a record is lost, no matter how good the
record-keeping after that, the missing record makes the system unreliable
from then on.250
James O. Bardwell, a firearms law attorney who for nearly half a dozen years,
ending in 2001, devoted considerable effort to compiling a legal web site devoted to NFA
issues, including sections on the NFRTR, told the House Subcommittee on Treasury,
Postal Service, and General Government, Committee on Appropriations that, “Several of

245

Id. at 539. For a full understanding of all the problems, which Attorney Halbrook states, see the
entire § 7:3 of his book.
246
Id. at 543 (citing a telephone interview by Eric Larson).
247
Id. at 539.
248
Id. at 545-46.
249
Letter to Ernest J. Istook, Chairman, Subcommittee on Treasury, Postal Service and General
Government, (Feb. 14, 2001), available at http://www.nfaoa.org/documents/2001statement.pdf at 10.
250
Personal Communication on Dec. 24, 2007, in possession of author.

62

Exhibit A, Pg. 381

these errors [in the NFRTR] are potentially very serious, and could cause unwarranted
legal difficulties for innocent persons.”251 He continued,
If a registration record cannot be found because the ATF misspelled the
owner’s name, then the owner of a lawfully registered firearm …. will
become the target of a criminal investigation. And if the owner has the
misfortune to have lost his registration paperwork, his troubles will be
greatly compounded.252
He advises, “An amnesty period which would allow the voluntary re-registration of these
firearms by their current owners could solve the problems. While ATF has authority
under existing laws to declare an amnesty, they are reluctant to do so without
Congressional direction.”253
Long-time firearms attorney, and NFA expert, David Hardy, wrote to the
Subcommittee on Treasury, Postal Service and General Government, stating, “I am
writing you now because of my concern that errors in the NFRTR may result in ATF
prosecuting innocent persons and convicting them for the illegal possession of
unregistered NFA firearms, even though the firearms were in fact [lawfully]
registered.”254 Mr. Hardy continues, “I find it personally stunning that no formal
investigation has been initiated in [sic] into the accuracy and completeness of the entire
NFRTR, in light of the ATF’s admission” of losing Mr. Napolilli’s paperwork.255 He
questions, “How does the ATF know it has never lost documents before? How does ATF
know that it has not caused unlawful prosecution of innocent persons who did lawfully

251

Letter to Ernest J. Istook, Chairman, Subcommittee on Treasury, Postal Service and General
Government, (Apr. 13, 2001), available at http://www.nfaoa.org/documents/BardHard.pdf at 2.
252
Id. at 3. Attorney Bardwell added: "I do not understand how ATF employees can regularly offer
sworn statements in court that a given person does not have a firearm registered to him when their records
are so poorly kept, and so poorly indexed." Id.
253
Id. at 4.
254
Letter to Ernest J. Istook, Chairman, Subcommittee on Treasury, Postal Service and General
Government, (Apr. 10, 2001), available at http://www.nfaoa.org/documents/BardHard.pdf at 6.
255
Id. at 8.

63

Exhibit A, Pg. 382

register his firearm, and lost the registration through no fault of his own?”256 He
concludes by asking the Subcommittee to initiate an investigation into the accuracy and
completeness of the NFRTR, “because ATF has strong institutional, and undoubtedly
political, interests in not being truthful,” regarding the current accuracy, or lack thereof,
of the NFRTR.257
Even more interesting, the State of New Hampshire, through its House of
Representatives, sent a petition letter to the Subcommittee, stating, “ATF’s failure to
correct these errors [in the NFRTR] is an insult to all law-abiding gun owners, because it
undermines the very legal protections ATF is supposed to uphold.”258 It continues,
What would be fair, is to establish a new amnesty period to provide the
current lawful owners of NFA firearms an opportunity to re-register those
firearms. An amnesty seems to be the easiest way to correct many of the
NFRTR errors. An amnesty period would give reasonable protection to
law abiding citizens whose NFA paperwork ATF may have lost or
destroyed.259
Dr. Fritz Scheuren, Vice President, Statistics, National Opinion Research Center,
a former elected President of the American Statistical Association, declared that the
NFRTR is “questionable as a source of evidence in federal law enforcement.”260
Furthermore, Dr. Scheuren asserted that “(1) ATF has serious material weaknesses in its

256

Id.
Id. at 10.
258
Letter to Ernest J. Istook, Chairman, Subcommittee on Treasury, Postal Service and General
Government, (Apr. 2, 2001), available at http://www.nfaoa.org/documents/BardHard.pdf at 12.
259
Id. at 13. The letter concludes by stating, “We would hope that your Subcommittee will consider
strongly encouraging ATF to correct the serious errors in the NFRTR, and provide a written plan, with
priorities and timetables, stating exactly how these errors will be corrected. Included in this plan should be
an amnesty to allow law-abiding owners of NFA firearms the opportunity to re-register them so as to
remove any ‘contraband’ status that has resulted from ATF employees not following the law or procedures
in the conduct of their official duties. If ATF effuses to correct these errors in the NFRTR in a fair and open
way, We hope your Subcommittee will consider withholding ATF’s operating funds to prevent ATF from
prosecuting innocent people, or illegally seizing their valuable firearms.” Id.
260
Letter to Alan B. Mollohan, Chairman, Subcommittee on Commerce, Justice, Science, and
Related Agencies, Committee on Appropriations, by Fritz J. Scheuren, Vice President, Statistics, National
Opinion Research Center, at 1 (Dec. 11, 2007); available at
http://www.nfaoa.org/documents/Scheuren_Committee_Chair_Letter.pdf.
257

64

Exhibit A, Pg. 383

firearm registration system which it has yet to acknowledge and (2) the ATF steps taken to
improve its recordkeeping continue to lack thoroughness” and “[m]y reading of the OIG
reports suggests that very serious problems were uncovered in ATF’s recordkeeping systems.
In fact, in my long experience, I cannot think of any instance where poorer results were
obtained.”261

In testifying at a motion in limine hearing on September 24, 2007, in U.S. v.
Giambro, Eric M. Larson, Senior Analyst of the U.S. Government Accountability Office,
in his capacity as a private citizen and based on his independent research, declared that
the NFRTR was not sufficiently accurate to sustain a criminal or civil prosecution and
“that there is reasonable doubt to its accuracy.” 262 Mr. Larson stated that his opinion was
based on,
(1) the errors disclosed in the NFRTR as a result of my analyses of
NFRTR data released by ATF, which were confirmed by the Treasury
Department Inspector General; (2) the likelihood of similar errors
throughout the database based on my independent research; (3) the
standard articulated by the Criminal Division of the Department of Justice
that if a registered person or firearm is encountered, and ATF’s ‘files are
missing’ then ‘the only solution’ is to establish a new amnesty period; and
(4) the fact that the Department of Justice Inspector general determined
that ATF is adding firearm registration to the NFRTR, and fixes the
database and assumes the NFRTR is in error, as stated on page 31 of the
June 2007 report.263
Mr. Larson also cited a letter dated July 11, 2007, in which Saeid Shafizadeh, a federally
licensed firearms dealer, complained to then-NFA Branch Chief Kenneth Houchens
261

Id. at 1-2. It should also be noted that Dr. Scheuren declared that in the second edition of his
book, the NFRTR would be included, when he stated, “Even though the first edition of the book has just
come out we are already contemplating a second edition and plan to include the ATF issues discussed
above in a new chapter. Will the story we tell have a happy ending or continue to be stalemated? We are
hoping that changes will be made, so we can report a success and not a failure.” Id. at 3.
262
Letter from Eric M. Larson, Response to Questions asked by Joshua Prince, to Joshua Prince, at
3-4, dated Jan. 1, 2008, available at
http://blog.princelaw.com/assets/2008/1/5/Eric_Larson_letter_to_Joshua_Prince.pdf. Mr. Larson stated that
his comments reflect his personal opinions, and do not represent the policy or position of the U.S.
Government Accountability Office (GAO).
263
Id.

65

Exhibit A, Pg. 384

about BATFE’s contention that it had no record of a firearm that BATFE had approved
for transfer to his company, Pars International Corporation, on April 12, 2007.264 Mr.
Shafizadeh noted that he had submitted an application to BATFE on June 4, 2007, to
transfer the firearm; that BATFE responded by stating “the firearm is not shown
registered” to Pars International Corporation, less than two months after ATF registered
the firearm to Pars; provided Mr. Houchens with a copy of the approved April 12, 2007,
BATFE registration document; and expressed concern over the inaccuracy of the
NFRTR.265 He articulated his frustration to Mr. Larson by stating, “Over the past 25
years I have written many letters of that nature to no avail.”266
More importantly, Mr. Shafizadeh’s error letter and copy of the approved
registration further confirms that the BATFE continues to reject Dr. Scheuren’s
recommendation of mandatory annual audits, as it did in 2001, when it stated,
We do not believe an independent audit of the database is needed. The
ongoing efforts we are making to ensure the completeness and accuracy of
the NFRTR by imaging and indexing the documents, performing database
verification, and linking the retrieval system with the imaging system will
result in strong internal controls for the NFRTR.267
If the BATFE’s “ongoing efforts” to improve the NFRTR were successful, the BATFE
should not lose an approved transfer application in as little as two months, let alone, ever.
There should be sufficient redundancy in the NFRTR system to preclude losing any
approved transfer application.

264

Id. at 4.
Id.
266
Id. Mr. Shafizadeh has memorialized his concerns over the accuracy and completeness of the
NFRTR in his affidavit, available at http://www.gunowners.com/ip10.htm.
267
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2002, Part 1, 107th Cong., 1st Sess., at 478 (Washington, GPO, 2002),
available at http://www.nfaoa.org/documents/NFRTRdocpack.pdf.
265

66

Exhibit A, Pg. 385

With regards to the Treasury Department Inspector General’s failure to complete
a GAGAS audit, Mr. Larson asserted, “[T]he failure of the Treasury IG to draw the larger
samples that would be necessary to establish more precision in its estimates of ‘critical
errors” seems to me to be a failure of due diligence, as well as GAGAS standards
regarding ‘abuse’ at the time.”268 He continued, “It was particularly troubling that the
Treasury IG specifically declined to determine whether ATF’s search procedures were
adequate to ensure the validity of the certificates that ATF uses in Federal District Court
as evidence that particular firearms are not registered in the NFRTR, given these
errors.”269
Furthermore,
Unless and until a GAGAS audit is done, the type and extent of errors in
the NFRTR will continue to be unknown. Taking just one NFRTR
category—Form 4467—at face value for the published audit results, which
include a 4.3% “critical error” rate within the 57,238 Forms 4467 in the
NFRTR at that time, that equals 2,461 “critical errors.”270
It must be noted that this is only the “critical error” rate for Form 4467 and does not
include Form 1, Form 2, Form 3, Form 4, and Form 5 categories, each of which, may
show the same, if not a higher, error rate, since at the time of the 1998 audit, these other
categories represented 85% of the NFRTR transactions.271 If the error rate is the same, it
would equate to over 16,242 “critical errors” in these other categories, for a total of at
268

Id. at 1. “Abuse is distinct from illegal acts and other noncompliance. When abuse occurs, no law,
regulation, contract provision, or grant agreement is violated. Rather, the conduct of a government program
falls short of societal expectations for prudent behavior. Auditors should be alert to situations or
transactions that could be indicative of abuse. When information comes to the auditors attention (through
audit procedures, tips, or other means) indicating that abuse may have occurred, auditors should consider
whether the possible abuse could significantly affect the audit results. If it could, the auditors should extend
the audit steps and procedures, as necessary, to determine if the abuse occurred and, if so, to determine its
effect on the audit results.” Id. at 2 (citing to COMPTROLLER GENERAL OF THE UNITED STATES,
GOVERNMENT AUDITING STANDARDS, (Washington, D.C., U.S. GPO, 1994).
269
Id. at 1-2.
270
Id. at 2.
271
Id. Mr. Larson acknowledges that the Form 4 data that he has analyzed shows patterns of error
similar to those of the Form 4467 data.

67

Exhibit A, Pg. 386

least 18,703 “critical errors.” One must also keep in mind that the BATFE altered the
definition of what constitutes a “critical error,” in direct contradiction to the
Congressional intent; thus, the actual “critical error” rate is likely to be much higher than
has been publicly and officially reported.272
VII. The Intersection of Procedural Due Process and the NFRTR

“No person shall be …. deprived of life, liberty, or property, without due process
of law.”273 Due process of law has a dual aspect, substantive and procedural.274
A procedural due process limitation, unlike its substantive counterpart,
does not require that the government refrain from making a substantive
choice to infringe upon a person's life, liberty, or property interest. It
simply requires that the government provide "due process" before making
such a decision. The goal is to minimize the risk of substantive error, to
assure fairness in the decision-making process, and to assure that the
individual affected has a participatory role in the process. The touchstone
of procedural due process is the fundamental requirement that an
individual be given the opportunity to be heard "in a meaningful
manner."275
The cornerstone of due process is the prevention of abusive governmental power.276 As
the Supreme Court declared, “[O]ur Constitution imposes …. standards necessary to
ensure that judicial proceedings are fundamentally fair. A wise public policy, however,

272

To see how the definition of “critical error” was changed by the BATFE, see Section V.
Congressional Hearings/OIG Reports, subsection d. 1998. Specifically, 26 C.F.R. 179.201 (1969) declares:
“The return, Form 4467, shall show the name, address, place of business or employment, employer
identification number or social security number, and date of birth of the registrant, the date the firearm was
acquired, the place where the firearm usually is kept, the name, and address of the manufacturer, the type,
model, length of barrel, overall length (when applicable), caliber or gauge, serial number, and other
identifying marks of the firearms, and if an unserviceable firearm, the manner in which it was rendered
unserviceable. Upon registering the firearm, the Director shall retain the original Form 4467 as part of the
National Firearms Registration and Transfer Record.” 26 C.F.R. 179.201 (1969), available at
http://blog.princelaw.com/assets/2008/1/9/1969-CFR-ATF-amnesty-regs.pdf.
273
U.S. CONST. amend. V.
274
Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996).
275
Id. (citing to Loudermill v. Cleveland Bd. of Educ., 721 F.2d 550, 563 (6th Cir. 1983)).
276
Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989) (citing to Daniels v. Williams, 474 U.S.
327, 330-31 (1986).

68

Exhibit A, Pg. 387

may require that higher standards be adopted than those minimally tolerable under the
Constitution.”277
With regards to the admission of the NFRTR as evidence or a court’s refusal to
admit evidence of the NFRTR’s inaccuracy, the proper focus is on the interplay between
due process of the law and criminal procedure. This is illustrated by the holding in
Adamson v. Mazzuca, “For a habeas petitioner to prevail on a claim that an evidentiary
error amounted to a deprivation of due process, he must show that the error was so
pervasive as to have denied him a fundamentally fair trial.”278 The court continued,
The standard is “whether the erroneously admitted evidence, viewed
objectively in light of the entire record before the jury, was sufficiently
material to provide the basis for conviction or to remove a reasonable
doubt that would have existed on the record without it. In short it must
have been ‘crucial, critical, highly significant.’”279
The Supreme Court similarly held that, “[t]he Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.”280
In any trial, where the Government seeks to admit a Certificate of Nonexistence
of a Record (CNR),281 based on a search of the NFRTR, as evidence, a court must either
deny such admission or allow the defendant to present all evidence of the inaccuracy of
the NFRTR, or the likely outcome is that the defendant’s due process rights will be
violated. Since all cases for illegal possession of NFA firearm are based solely on
whether the firearm was registered or not, the accuracy or lack thereof is crucial, critical,
and highly significant in the determination of guilt. Since the Government must prove
277

Lassiter v. Dep't of Social Services, 452 U.S. 18, 33 (U.S. 1981).
Adamson v. Mazzuca, No. 01-CV-0143, 2003 U.S. Dist. LEXIS 13634, at *17 (D.N.Y. July 23,
2003) (citing to United States v. Agurs, 427 U.S. 97, 108, (1976)).
279
Id. (citing Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)).
280
In re Winship, 397 U.S. 358, 364 (1970).
281
Fed. R. Evid. 803(10)
278

69

Exhibit A, Pg. 388

beyond a reasonable doubt that the firearm in question was possessed illegally, it is
nearly impossible for any individual to be found guilty, given the DOJ-OIG’s report
stating, “If the NFA weapons owner can produce the registration paperwork, ATF
assumes the error is in the NFRTR and fixes it in the database”282 and Dr. Scheuren’s
comments, “[A]TF still has serious material weaknesses in its firearm registration system
that it has failed to recognize” and “In my considered professional judgment, these errors
render the NFRTR questionable as a source of evidence in federal law enforcement.”283
With the consistent Congressional testimony, hearings, and Inspector General reports
by the Treasury Department and Department of Justice, if a court denies the admission valid
and reliable evidence showing or substantiating the inaccuracies of the NFRTR, the
defendant’s fundamental right to a fair trial is violated. Our system of Justice, based on
justness and fairness, is one where we concern ourselves with ensuring that innocent
defendants, as well as those who may or may not be innocent, are protected, and only those
who can be found guilty beyond a reasonable doubt are deprived of their liberty.284 Since the
Government holds the power to correct the NFRTR, we cannot hold the absence of a record
in the NFRTR against a defendant, who may have lawfully registered the firearm but no
longer has proof of registration, which may have been lost because of a fire, tornado, flood,
accident of some type, or just plain human error. If the Government, with extensive means
and capabilities, cannot ensure that records will not be lost, how can we, as society founded

282

U.S. Department of the Justice, Office of Inspector General, The Bureau of Alcohol, Tobacco,
Firearms and Explosives’ National Firearms Registration and Transfer Record, I-2007-006, at 31 (June
2007), available at http://www.nfaoa.org/documents/DOJ-OIG2007NFRTRreport.pdf.
283
Letter to Alan B. Mollohan, Chairman, Subcommittee on Commerce, Justice, Science, and
Related Agencies, Committee on Appropriations, by Fritz J. Scheuren, VP Statistics NORC, 1 (Dec. 11
2007); available at http://www.nfaoa.org/documents/Scheuren_Committee_Chair_Letter.pdf.
284
"Procedural due process rules are meant to protect persons not from the deprivation, but from the
mistaken or unjustified deprivation of life, liberty, or property." Carey v. Piphus, 435 U.S. 247, 259 (1978).

70

Exhibit A, Pg. 389

on justness and fairness, deprive a possibly innocent defendant of his/her liberty, due to a lost
Government record?285

VIII. The Intersection of the Federal Rules of Evidence and the NFRTR286

The interaction of the inaccuracies of the NFRTR and the Federal Rules of
Evidence is where Due Process issues arise. By asserting that the NFRTR is inaccurate,
the defendant is declaring that any evidence of the nonexistence of his/her registration is
inadmissible. Federal Rule of Evidence, Rule 803(10), provides that there exists an
exception to the hearsay rule in situations of accurate records:
To prove the absence of a record, report, statement, or data compilation, in
any form, or the nonoccurrence or nonexistence of a matter of which a
record, report, statement, or data compilation, in any form, was regularly
made and preserved by a public office or agency, evidence in the form of a
certification in accordance with rule 902, or testimony, that diligent search
failed to disclose the record, report, statement, or data compilation, or
entry.287

285

Is a scenario imaginable under which a citizen would be denied Social Security payments because
the Government lost its copies of the citizen’s earnings history? Such records, of course, exist in duplicate
at the Internal Revenue Service. Could not a similar duplicate set of NFRTR data be established to ensure
that innocent citizens will not be victimized by NFA Branch Clerks who throw away NFA documents
because they don’t feel like working on them?
286
Over the years, there have been several cases where, as this author will show, appellate courts
have erroneously upheld the admission of Certificate of Nonexistence of a Record because these courts
were unaware or misled to believe the NFRTR to be accurate. See, United States v. Rith, 164 F.3d 1323
(10th Cir. 1999); United States v. Harrison, No. 95-1678, 1996 U.S. App. LEXIS 13225 (2d Cir. 1996);
United States v. Shaffer, 1993 U.S. App. LEXIS 1461 (9th Cir. 1993); United States v. Rigsby, 943 F.2d
631 (6th Cir. 1991); United States v. Sullivan, 919 F.2d 1403 (10th Cir. 1990); United States v. Metzger,
778 F.2d 1195, 1202 (6th Cir. 1985); United States v. Combs, 762 F.2d 1343, 1348 (9th Cir. 1985); United
States v. Toner, 728 F.2d 115, 120 (2d Cir. 1984); United States v. Beason, 690 F.2d 439, 445 (5th Cir.
1982); United States v. Moschetta, 673 F.2d 96 (5th Cir. 1982). As firearms law expert Stephen Halbrook
states, the use of Certificates of Non-Existence of a Record, in light of the inaccuracy of the NFRTR,
“[m]ay well give rise to a meritorious petition for a writ of habeas corpus or, after discharge from
probation, a writ of error corum nobis. In fact, large numbers of persons convicted of unregistered firearms
may well be entitled to collateral relief.” STEPHEN HALBROOK, FIREARMS LAW DESKBOOK, 488
(Thomson/West 2007).
287
Fed. R. Evid. 803(10)

71

Exhibit A, Pg. 390

While the BATFE is likely to offer two Certificates of Nonexistence of a Record
(CNR) to show, under 803(10), that the neither the defendant’s name nor the firearm’s
serial number exist in the NFRTR, such certificates are based on a search of the NFRTR
but fail to acknowledge the numerous Treasury Department and Justice Department
Inspector General reports and Congressional Hearings, which depict the NFRTR as
inaccurate.288
The hearsay exception contains the principle that, “Evidence that is otherwise
admissible under an exception to the hearsay rule is admissible primarily because
evidence of that kind is generally trustworthy, but if, in a particular instance, the
circumstances indicate a lack of trustworthiness, the evidence should be excluded.”289
Nonetheless, Chief United States District Judge George Z. Singal, U.S. District Court for
the District of Maine, held that defendant Giambro failed to meet this standard because
he could not show that the NFRTR was inaccurate as it pertained to him.290 This holding
lacks any form of commonsense, since one cannot show an absence of a record, but for
the record not existing. While Judge Singal based his decision on U.S. v. Rith, which
declared that in relation to a Sixth Amendment challenge, the defendant failed to allege
any “defect in the NFRTR as it pertain[ed] to him. General claims of unreliability,
particularly those that rely upon outdated information, are not sufficient to raise a
constitutional deficiency,” he failed to accept the evidence of the inaccuracies in the
NFRTR, since the late 1970’s and up until the present time, which depict a consistent
trend of audits, Congressional Hearings, and Congressional Actions to rectify the

288
289
290

United States v. Giambro, No. 07-41-P-S, 2007 U.S. Dist. LEXIS 61072, at *2 (D. Me. 2007)
United States v. Robinson, 544 F.2d 110, 115 (2d Cir. 1976)
United States v. Giambro, No. 07-41-P-S, 2007 U.S. Dist. LEXIS 61072, at *3 (D. Me. 2007)

72

Exhibit A, Pg. 391

NFRTR.291 Furthermore, Judge Singal’s reliance on U.S. v. Rith may have been in error
given the Supreme Court’s decision in Crawford v. Washington, which is discussed in the
section The Intersection of Confrontation Clause and the NFRTR.292
Nevertheless, with regards to Judge Singal’s decision, a defendant lacks any and
all power to request an audit, since the information is a provision of the tax code and thus
confidential. Hence, the defendant must rely solely on audits by the Treasury Department
Inspector General, a review by the Department of Justice Inspector General, both of
which are seemingly flawed, information divulged in Congressional Hearings and public
documents which become available and accessible.293 More importantly, any certificates
offered by the BATFE should be viewed with extreme skepticism given the Busey tape,
where BATFE agents were ordered to perjure themselves when speaking about the
accuracy of the NFRTR.294 Clearly, this tape, as well as the audits and Congressional
Hearings, render the BATFE certifications and sworn testimony untrustworthy and unless
and until the NFRTR is subjected to a complete, independent, GAGAS audit and the
results made public, all evidence related to the NFRTR should be deemed inadmissible.
As the Supreme Court declared, when speaking about the trustworthiness aspect
of Rule 803(10), “[I]t provides [an] ample provision for escape if sufficient negative
factors are present.”295 The Court continued,
That "provision for escape" is contained in the final clause of the Rule:
evaluative reports are admissible "unless the sources of information or
291

United States v. Giambro, No. 07-41-P-S, 2007 U.S. Dist. LEXIS 61072, at *3 (D. Me. 2007)
(citing United States v. Rith, 164 F.3d 1323, 1337 (10th Cir. 1999)).
292
Crawford v. Washington, 541 U.S. 36 (2004).
293
See, in particular, the “Resources” page of the National Firearms Act Owners Association, at
http://www.nfaoa.org/resources.html (visited July 26, 2008).
294
BATFE/NFRTR Roll Call Training Video, Oct. 1995, available at
http://www.nfaoa.org/documents/rollcall_highlights.mp4 or as text
http://www.nfaoa.org/documents/BuseyTranscript.pdf.
295
Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167 (1988).

73

Exhibit A, Pg. 392

other circumstances indicate lack of trustworthiness." This trustworthiness
inquiry -- and not an arbitrary distinction between "fact" and "opinion" -was the Committee's primary safeguard against the admission of
unreliable evidence, and it is important to note that it applies to all
elements of the report. Thus, a trial judge has the discretion, and indeed
the obligation, to exclude an entire report or portions thereof -- whether
narrow "factual" statements or broader "conclusions" -- that she
determines to be untrust-worthy.296
Furthermore, the Court stated, “[T]he admission of a report containing ‘conclusions’ is
subject to the ultimate safeguard -- the opponent's right to present evidence tending to
contradict or diminish the weight of those conclusions.”297
In United States v. Yakobov, 803(10)’s application to the NFRTR was a central
issue because the ATF provided certificates that Mr. Yakobov’s name did not exist in the
registry, but they failed to show a diligent search of the registry for possible
misspellings.298 The learned Second Circuit declared, “An essential requirement of Rule
803(10) is that evidence of the absence of a record be the result of a "diligent search."299
The court continued, “Diligence is the standard set by Rule 803(10), . . . and it is a good
one. It insures that evidence of this kind will be reliable, and reliability is the foundation
upon which all exceptions to the hearsay rule are built.”300 The court concluded that
“[N]otwithstanding the ATF Certificate's recitation of a diligent search,
the face of the document itself suggests that the search conducted to
determine whether Yakobov had applied for or obtained a license to deal
in firearms was not diligent. The ATF Certificate states that Hall searched
for a license or application for "Jakubov, Simantov." There is no
indication that any search was made under the name "Yakobov" or
"Yakubov." The use instead of misspelled versions of both Yakobov's first
and last names hardly suggests diligence, and the spelling of Yakobov's
last name with an initial "J" seems likely to have prevented the discovery
of any license or application for Yakobov, if one existed.”301
296

Beech Aircraft Corp, 488 U.S. at 167 (1988) (citing Advisory Committee’s Notes on Fed. R.
Evid. 803(8)).
297
Beech Aircraft Corp, 488 U.S. at 168 (1988).
298
United States v. Yakobov, 712 F.2d 20, 22 (2d Cir. 1983)
299
Id. at 24 (citing United States v. Robinson, 544 F.2d 110. 115 (2d Cir. 1976)).
300
Id. (citing United States v. Robinson, 544 F.2d 110, 115 (2d Cir. 1976))
301
Id.

74

Exhibit A, Pg. 393

Furthermore, "It hardly requires extended discussion to demonstrate that a casual or
partial search cannot justify the conclusion that there was no record, and we conclude that
the ATF Certificate was not admissible under Rule 803(10).”302
Thus, the court properly concluded that the BATFE’s certification was not valid.
One can only assume that if the court were presented with this situation today, in light of
the inaccuracy of the NFRTR, it would find any search of the NFRTR to lack diligence,
especially considering the BATFE’s acceptance, in one instance, that it had lost 475
records of one individual and nearly 30 years later, in 2007, the DOJ Inspector General’s
report declared, “If the NFA weapons owner can produce the registration paperwork, ATF
assumes the error is in the NFRTR and fixes it in the database.303

IX. The Intersection of Confrontation Clause and the NFRTR

The Confrontation Clause provides, “In all criminal prosecutions, the accused
shall enjoy the right …. to be confronted with the witnesses against him.”304 In Crawford
v. Washington, the Supreme Court held that the admission of testimonial hearsay in a
criminal proceeding is barred, unless the declarant is unavailable and the accused has had
a prior opportunity for cross-examination.305 Thus, the Crawford analysis requires a court

302

Id. (citing United States v. Robinson, 544 F.2d 110, 115 (2d Cir. 1976).
U.S. Congress, Senate Committee on Appropriations, Oversight Hearings on Bureau Alcohol,
Tobacco & Firearms, 96th Cong., 1st Sess. at 39 (Washington, GPO, 1979); Letter from David T. Hardy,
Esq., to Ernest S. Istook, Jr., Chairman, Subcommittee on Treasury, Postal Service and General
Government, dated April 10, 2001, available at http://www.nfaoa.org/documents/BardHard.pdf; U.S.
Department of the Justice, Office of Inspector General, The Bureau of Alcohol, Tobacco, Firearms and
Explosives’ National Firearms Registration and Transfer Record, I-2007-006, at 31 (June 2007), available
at http://www.nfaoa.org/documents/DOJ-OIG2007NFRTRreport.pdf.
304
U.S. CONST. amend. VI.
305
Crawford v. Washington, 541 U.S. 36, 68 (2004)
303

75

Exhibit A, Pg. 394

to consider two issues: 1. whether the out-of-court statement was hearsay; and 2. whether
the out-of-court statement was testimonial.306
The issue becomes whether the admission of a Certificate of Nonexistence of a
Record (CNR) is hearsay. “Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.”307 Any CNR that the BATFE submits are statements made by a declarant, not
present at trial, and those statements are offered into evidence to prove the truth of the
matter asserted; specifically that, after a diligent search for the defendant’s name and/or
firearm’s serial number, no evidence was found that the firearm was registered to the
defendant. Hence, any CNR is hearsay.
Then the issue becomes whether or not a CNR is testimonial. In Crawford, the
Supreme Court declined to provide “a comprehensive definition of testimonial.”308
However, the Court listed three formulations of the “core class of testimonial
statements:”309 1. “ex parte in-court testimony or its functional equivalent – that is,
material such as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pre-trial statements that declarants would
reasonably expect to be used prosecutorially,”310 2. “extrajudicial statements ….
Contained in formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions,”311 and 3. “statements that were made under circumstances

306
307
308
309
310
311

Id.; United State v. Maher, 454 F.3d 12, 20 (1st Cir. 2006).
Fed. R. Evid. 801(c).
Crawford, 541 U.S. at 68.
Id. at 51.
Id.
Id. at 51-51 (quoting White v. Illinois, 502 U.S. 346, 365 (1992)).

76

Exhibit A, Pg. 395

which would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.”312
In applying Crawford to a CNR prepared by the BATFE, it is testimonial under
all of the formulations. The CNR is a formal document prepared by the custodian of the
NFRTR, to be used at trial; thus, it is both an extrajudicial statement and a custodial
examination, which the defendant is unable to cross-examine. Furthermore, under the
third formulation, “an objectively reasonable person in [the declarant’s] shoes would
understand that the statement would be used in prosecuting [the defendant] at trial.”313
However, the Government is likely to argue that even if the CNR was only created in
anticipation of litigation, “[T]he reasonableness of an expectation of prosecutorial use
‘do[es] not transform an otherwise non-testimonial business record, made in the normal
course of business, into testimonial evidence.”314 These courts held that CNRs are not
barred by the Confrontation Clause because they closely resemble business records,
which, under Crawford, constitute a common law exception to the right of
confrontation.315
Thus, the Government is likely to argue that “certificates of authenticity were
admissible at common law, even when created with an eye toward litigation” and that a
“CNR, by analogy to a certificate of authenticity, should be treated like a business
312

Id. at 52.
United States v. Maher, 454 F.3d 13, 21 (1st Cir. 2006). See also United States v. Brito, 427 F.3d
53, 60 (1st Cir. 2005). Other courts of appeals have adopted similar tests. See United States v. Gilbertson,
435 F.3d 790, 795-96 (7th Cir. 2006); United States v. Hinton 423 F.3d 355, 359-60 (3d Cir. 2005); United
States v. Cromer, 389 F.3d 662, 673-74 (6th Cir. 2004); United States v. Saget, 377 F.3d 223, 228-29 (2d
Cir. 2004) ;
314
United States v. Earle, 488 F.3d 537, 544 (1st Cir. 2007). See also, United States v. Urqhart, 469
F.3d 745, 748-49 (8th Cir. 2006); United States v. Cervantes-Flores, 421 F.3d 825, 830-34 (9th Cir. 2005);
United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005).
315
Id.; Crawford 541 U.S. at 56. “Most of the hearsay exceptions covered statements that by their
nature were not testimonial – for example, business records or statements in furtherance of a conspiracy.”
Crawford, 541 U.S. at 56.
313

77

Exhibit A, Pg. 396

record.”316 In essence, the Government is arguing that “[B]oth certificates of authenticity
and CNRs …. merely reflect the state of a set of routinely kept business records existing
prior to litigation.”317 However, Government’s logic is faulty because “a certificate of
authenticity merely establishes the validity of a second document that contain probative
evidence, whereas a CNR itself contain probative evidence.”318 [original emphasis]. As
the First Circuit Court of Appeals pointed out in U.S. v. Earle, with regards to a
certificate of authenticity, there is little to be gained by cross-examining the
authenticator; however, “a defendant might benefit from cross-examining the maker of
the CNR as to the details of the search, and from exploring the possibility that a record
has been overlooked, misfiled, or otherwise lost.”319 In U.S. v. Nicely, the learned First
Circuit Court of Appeals declared,
The government argues that negative public records admissible under the
hearsay exception in Federal Rule of Evidence 803(10) should be equally
immune from constitutional challenge. Even so, we are somewhat troubled
by the government's extensive use of affidavits in this case. Unlike routine
searches of easily pinpointed data compilations that courts have upheld in
the past, this case presents us with a situation where the affidavits were
based on a far-ranging review of different Department files for any
evidence that the government considered a currency reform proposal along
the lines represented to SCT. Under these circumstances, especially absent
any explanation from the government as to why it could not have easily
called on these Treasury officials to testify in person, use of affidavits in
lieu of Department officials who conducted the search may unjustifiably
circumscribe defendants' confrontation rights. We think that the district
court must carefully scrutinize any similar use of such evidence on
retrial.320
Furthermore, “even if a certificate of authenticity were admissible at common
law, it is clear that CNRs were not so admissible, and this was so perhaps for reasons

316
317
318
319
320

Earle, 488 F.3d at 544.
Id.
Id. at 545.
Id.
United States v. Nicely, 922 F.2d 850, 860 (D.C. Cir. 1991).

78

Exhibit A, Pg. 397

unrelated to the rule of completeness.”321 In U.S. v. Bass, the Seventh Circuit Court of
Appeals held that “Proof that something is not to be found in the records may not be
made by a mere certificate of the custodian, but must be shown by testimony with
opportunity to cross-examine.”322 In U.S. v. Bukis, the Eastern District Court of
Pennsylvania held that “[P]roof that something is not to be found in the records may not
be made by mere certificate of the custodian, but is a matter of fact which must be shown
by the testimony of a person who has searched the records, with an opportunity to crossexamine.”323 Lastly, the Court in Crawford declared, “We cannot agree with THE CHIEF
JUSTICE that the fact ‘[t]hat a statement might be testimonial does nothing to undermine
the wisdom of one of these [hearsay] exceptions.’”324 (alterations in the original).
One must remember that the NFRTR is tax information; thus, the criminal
defendant must rely solely on the BATFE’s search, which may or may not be adequate.
Thus, any CNR prepared by the BATFE for a criminal proceeding should be barred,
unless the defendant is at least afforded an opportunity to cross-examine the individual
who composed the CNR. Anything less would violate the defendant’s Constitutional right
to confront the witnesses against him/her. Furthermore, the learned 10th Circuit in U.S. v.
Rose declared, “There may be circumstances in which one who wishes to impeach the
quality of a recordkeeping system must be allowed to examine the system's operation.”325

321

Id. (citing Fed. R. Evid. 803 notes; 5 Wigmore § 1678(7), at 867). “At common law, the rule of
completeness required that the whole of a document be shown forth, in proving any part of it, so that the
tribunal may judge better of the significance of the whole and the precise interpretation of any part. At
common law, therefore, it was entirely settled that no custodian had authority to certify any less than the
entire and literal terms of the original – in short, a copy in the strict sense of the word; and the rule was
applied to all varieties of documents.” 5 Wigmore § 1678(6), at 863.
322
United States v. Bass, 64 F.2d 467, 470 (7th Cir. 1933).
323
United States v. Bukis, 17 F. Supp. 77, 78 (E.D. Pa. 1936).
324
Crawford, 541 U.S. at 56 n.7 (quoting id. at 74 (Rehnquist, C.J., concurring).
325
United States v. Rose, 695 F.2d 1356, 1358 (10th Cir. 1982).

79

Exhibit A, Pg. 398

X. Amnesty: the Nexus between the Congressional Intent and the Inaccuracy of the
NFRTR

The solution to the NFRTR inaccuracy problem is an amnesty period, where an
individual can register the NFA firearm(s) in his/her possession, to some extent,
regardless of the current status of the weapon, in the registry. Amnesty was designed, in
the CGA of 1968, as a safeguard, to ensure that the NFRTR remained accurate.326 As the
evidence, previously provided, shows, the BATFE admitted in numerous declarations and
on numerous occasions that the NFRTR is inaccurate; for them to state otherwise, depicts
with what ease and what measures, the BATFE is willing to go, including perjury.
Furthermore, the Office of Inspector General, of the Department of Justice, declared that
“If the NFA weapons owner [sic] can produce the registration paperwork [of a firearm
that is not in the registry], ATF assumes the error is in the NFRTR and fixes it in the
database.”327 This is a critical point, because in 1979, the Criminal Division of the
Department of Justice advised the Congress that if the BATFE determines that “a
particular individual or weapon is registered” and the BATFE finds that its “files are
missing,” then “the only solution would be to declare another amnesty period.”328 Since
the Department of Justice Inspector General has published valid and reliable evidence
that “ATF assumes the error is in the NFRTR,” it is difficult to conclude that the criteria

326

90 P. L. 618; 82 Stat. 1235, § 207(b),(d); Haynes v. United States, 390 U.S. 85 (1968) (holding
that the registration of NFA weapons would likely incriminate those individuals registering unregistered
NFA).
327
U.S. Department of the Justice, Office of Inspector General, The Bureau of Alcohol, Tobacco,
Firearms and Explosives’ National Firearms Registration and Transfer, I-2007-006, at 31 (Washington,
June 2007), available at http://www.nfaoa.org/documents/DOJ-OIG2007NFRTRreport.pdf.
328
U.S. Department of Justice, Criminal Division, Memorandum: Response to letter from Senator
McClure, by Philip B. Heymann and Lawrence Lippe, at 4 (Nov. 29, 1979), available at
http://www.nfaoa.org/documents/DOJamnestyMemo1979.pdf.

80

Exhibit A, Pg. 399

for establishing a new amnesty period was not met upon publication of the Inspector
General’s report in June 2007.
While the BATFE, in 1999, contended that FOPA precludes future amnesty
periods that would allow the registration of unregistered machineguns,329 the BATFE’s
position has since changed, acknowledging that, “The 1968 amendments also provided
for the establishment of additional amnesty periods not exceeding 90 days per period. To
date, no additional amnesty periods have been declared.”330 The BATFE now contends
that the denial of such amnesty periods is, “[P]rincipally because additional periods could
jeopardize pending ATF investigations and prosecutions of NFA violations.”331 As will
be shown, the BATFE’s argument is completely without merit.
Amnesty will require a multi-pronged action, involving both the judiciary and the
legislature, to ensure that the inaccuracies of the NFRTR are rectified, hopefully for the
last time. Below is my proposition for amnesty, which is divided in four main subsets of
Judiciary, Legislature, BATFE’s arguments against an amnesty, and Amnesty.

A. Judiciary

The Judiciary will be the first prong, which will require the Legislature to take action.
The Judiciary must declare, that as a matter of law, the NFRTR is not legally sufficient to
be used in criminal proceedings. Given that the Legislature has known and been made
329

U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 1998, Part 5, Statements of Members of Congress and Other Interested
Individuals, 106th Cong., 2nd Sess., at 26 (Washington, GPO, 2000), available at
http://www.nfaoa.org/documents/2000statement.pdf.
330
BATFE, ATF National Firearms Act Handbook, at 23 (June 2007), available at
http://www.atf.gov/firearms/nfa/nfa_handbook/index.htm.
331
Id.

81

Exhibit A, Pg. 400

repeatedly aware of the inaccuracies, since the late 1970’s, and failed to take successful
corrective action, the Judiciary must step up, to protect citizens, who lawfully registered
their NFA firearms, from being deprived of their Constitutional rights and protections.
Such a declaration, by the Judiciary, will force the Legislature either to immediately
correct the NFRTR, or to acquiesce that the Legislature no longer feels it necessary, due
to the Second Amendment, to prosecute individuals for possession of NFA firearms.
Assuming that the Legislature is not willing to nullify the NFA, GCA, and FOPA, in
relation to NFA firearms, the following corrective action must be taken by the
Legislature.

B. Legislature

The Legislature may need to begin by considering whether existing law
sufficiently provides for an amnesty period that would render the NFRTR accurate and
complete, something that may not have been contemplated in drafting the original
amnesty provision. First, the GCA may have to be amended by striking “not to exceed
ninety days in the case of any single period” in 82 Stat. 1235 § 207(d), if a complete reregistration is not possible in ninety days.332 Secondly, 18 U.S.C § 922(o)(2)(B) will need
to be amended by striking or modifying “[A]ny lawful transfer or lawful possession of a

332

Philip Heymann, in explaining the failures of the 1968 Amnesty, declared, “The amnesty period
spawned a massive volume of registrations, transfers and correspondence which the clerical staff was illequipped to handle. As a result, some weapons were registered, some were mistakenly registered by part
number rather than serial number, and some documents were misfiled. The staff responsible for the system
was aware of these problems.” U.S. Department of Justice, Criminal Division, Memorandum: Response to
letter from Senator McClure, by Philip B. Heymann and Lawrence Lippe, at 2-3 (Nov. 29, 1979), available
at http://www.nfaoa.org/documents/DOJamnestyMemo1979.pdf.

82

Exhibit A, Pg. 401

machinegun that was lawfully possessed before the date this subsection takes effect."333
This will allow for the new registration of NFA firearms that were registered and the
BATFE lost the registration; thus, in the eyes of the BATFE, making those firearms
unlawfully possessed in 1986. Following these actions, if necessary, the Legislature must
initiate, if the Attorney General refuses to do so, a new amnesty period, with regulations,
to ensure that the NFRTR becomes at least ninety-nine percent accurate, and stays as
such.
Furthermore, the Legislature must pass legislation requiring that the BATFE
implement Electronic Form (E-Forms) for the registration and transfer of NFA firearms.
As will be discussed in the below subsection Amnesty, this will ensure the accuracy and
completeness of the NFRTR by removing the human component of entry of information
into the NFRTR.334 Lastly, the Legislature must require that the new NFRTR database be
searchable via probabilistic searches and that only probabilistic searches be used in
333

The BATFE previously contended that FOPA prevents a new amnesty; however, the BATFE has
now taken the position that they have the power to authorize a new amnesty, but choose not to do so, so as
not to “jeopardize pending ATF investigations and prosecutions of NFA violations.” BATFE, ATF
National Firearms Act Handbook, at 23 (June 2007), available at
http://www.atf.gov/firearms/nfa/nfa_handbook/index.htm. Also, under current law, an unregistered NFA
firearm or device cannot be registered. This situation evolved from a problem under the original NFA,
which required persons to register NFA firearms and the federal government to make these data available
to local, state and other federal officials upon request. But, individuals who possessed NFA firearms in
violation of state or local law risked the hazards of prosecution by supplying the registration information
required by the federal government, which violated their 5th Amendment rights, guaranteed by the U.S.
Constitution, against self-incrimination. On January 29, 1968, the U.S. Supreme Court ruled that “a proper
claim of the privilege is understood to provide a full defense to any prosecution either for failure to register
. . . . or . . . . for possession of a [NFA] firearm which has not been registered.” Haynes v. United States,
390 U.S. 85, 99 (1968). The Congress resolved this conflict in amending the NFA under Title II of the Gun
Control Act of 1968 by: (1) prohibiting any information required to comply with the NFA to be used
against a registrant or applicant to be used against a registrant or applicant in a criminal proceeding with
respect to a violation of law occurring prior to or concurrently with the filing of the application or
registration, or the compiling of the records containing the information or evidence; (2) establishing an
amnesty period from November 2, 1968, to December 1, 1968, when persons could register unregistered
NFA firearms with full immunity from prosecution; and (3) prohibiting the release of any information
about the registration status or ownership of any NFA firearm.
334
E-Forms have already been made available by Titleii.com. To see the available forms, see
http://www.titleii.com/Forms.htm. If you click any of the Forms, you can type in the correct information,
which is then entered onto the appropriate BATFE Form. While Titleii.com’s E-Forms do not allow for the
uploading of pictures, it serves to show how easy and cheap it is to create E-Forms.

83

Exhibit A, Pg. 402

criminal prosecutions; thus, allowing for records which are in error, to possibly be
found.335

C. BATFE Amnesty Refusal Rationale and Rebuttals Thereof

The most comprehensive list of reasons offered by the BATFE to oppose
establishing a new amnesty period were given by the BATFE to the Subcommittee on
Treasury, Postal Service and General Government, Committee on Appropriations, in
November 1999. The only known formal rebuttals were by Eric M. Larson in his 2000
statement336 and an analysis by William J. Krouse of the Congressional Research Service
in 2005, of both the BATFE’s reasons and Mr. Larson’s rebuttals.337
1. “An Amnesty would suspend enforcement of the NFA. Pending investigations
and prosecutions for violations of the NFA might have to be terminated.”338 To begin
with, the suspension of enforcement of the NFA, for a short period of time, is the primary
reason for an amnesty, especially in light of individuals being prosecuted, who lawfully
registered their firearms, but through not fault of their own, their paperwork was lost or
destroyed, such as Mr. Napolilli. Moreover, a successful amnesty would enable the
335

THOMAS N. HERZOG, FRITZ J. SCHEUREN & WILLIAM E. WINKLER, DATA QUALITY AND RECORD
LINKAGE TECHNIQUES 82-92 (Springer Science+Business Media 2007).
336
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2001, Part 5, Statements of Members of Congress and Other Interested
Individuals and Organizations, 106th Cong., 2nd Sess., at 26 (Washington, GPO, 2000), available at,
http://www.nfaoa.org/documents/2000statement.pdf.
337
Congressional Research Service, Memorandum: ATF’s National Firearms Registration and
Transfer Record: Issues Regarding Data Accuracy, Completeness, and Reliability, by William J. Krouse,
Nov. 28, 2005, available at http://www.nfaoa.org/documents/CRSmemoNFRTR0001.pdf.
338
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2001, Part 5, Statements of Members of Congress and Other Interested
Individuals and Organizations, 106th Cong., 2nd Sess., (Washington, GPO, 2000), available at,
http://www.nfaoa.org/documents/2000statement.pdf.

84

Exhibit A, Pg. 403

BATFE to prosecute more individuals, with a greater accuracy, and limit tax payer
money being used for mistaken and/or frivolous prosecution. Our system of Justice
strives for only the guilty to be convicted; thus, the BATFE should desire to ensure that
only the guilty are prosecuted. A successful amnesty would better ensure that only the
guilty are likely to be prosecuted, while providing more accurate, and more easily
accessible, data records.
That the BATFE would tell the Congress that an amnesty “would suspend
enforcement of the NFA” is not borne out by the historical record, and is seriously
misleading. The reason is that in 1968, then-IRS Commissioner Cohen, in his testimony
to Congress after the invalidation of the registration provision of the NFA, due to the
Supreme Court’s decision in Haynes, declared that only one-third of the NFA
prosecutions were affected.339 There is no evidence that invalidating the registration
provision of the NFA temporarily to render the NFRTR accurate and complete would
“suspend enforcement of the NFA.” Rather, it would strengthen the NFA by
strengthening the NFRTR. Moreover, as Mr. Larson declared, “An amnesty period has
the greatest chances of correcting the greatest number of errors in the NFRTR the IG
identified, and ATF has not proposed any viable alternative.”340

339

US Congress, Senate, Committee on the Judiciary, Subcommittee to Investigate Juvenile
Delinquency, S. Res. 240, 90th Cong. 2nd Sess., at 661 (Washington, GPO, 1968), available at
http://www.nfaoa.org/documents/IRS_Commissioner_GCA_Hearing.pdf. Commissioner Cohen declared,
“The National Act prosecutions have fallen as a result of the Haynes decision. We had been averaging,
under the national act, about 60 to 70 prosecutions per month for national act violations. Since the first of
the year, when the Haynes decision was rendered, we are down to about something in excess of 40 a
month. So we are talking about 35 to 40 percent in the area of prosecutions under Haynes.” Id. at 661-62.
340
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2001, Part 5, Statements of Members of Congress and Other Interested
Individuals and Organizations, 106th Cong., 2nd Sess., at 23 (Washington, GPO, 2000), available at,
http://www.nfaoa.org/documents/2000statement.pdf.

85

Exhibit A, Pg. 404

2. “Section 922(o), Title 18, U.S.C. prohibits the possession of machine guns not
lawfully possessed prior to its effective date, May 19, 1986. The possession of any
machine gun registered during a new amnesty period would still violate section
922(o).”341 The BATFE continues on, “With respect to section 922(o), the law makes no
provisions for an amnesty,”342 but it is also fair to say that there’s nothing in 922(o) that
would specifically preclude an amnesty, either. The BATFE now acknowledges that §
207 (d) of the Gun Control Act of 1968 allows for a new amnesty, which could be
administratively established by the Attorney General at any time, but they have chosen
not to initiate such, so as not to “jeopardize pending ATF investigations and prosecutions
of NFA violations.”343 Even if one assumes the BATFE’s previous interpretation that
section 922(o) precludes an amnesty for machineguns is correct, the Congress retains the
power to authorize a new amnesty.
3. “Amnesty would provide the criminally inclines an opportunity to possess
unregistered NFA weapons with impunity.”344 As Mr. Larson points out, “The
‘criminally inclined’ already ‘possess unregistered weapons with impunity.’ An amnesty
would not change that.”345 Furthermore, as Mr. Krouse points out, “As to the ‘criminally

341

Id. at 26.
Id.
343
The BATFE has now taken the position that they have the power to authorize a new amnesty, but
choose not to do so, so as not to “jeopardize pending ATF investigations and prosecutions of NFA
violations.” BATFE, ATF National Firearms Act Handbook, at 23 (June 2007), available at
http://www.atf.gov/firearms/nfa/nfa_handbook/index.htm; 82 Stat. 1235, § 207(b), (d).
344
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2001, Part 5, Statements of Members of Congress and Other Interested
Individuals and Organizations, 106th Cong., 2nd Sess., at 26 (Washington, GPO, 2000), available at,
http://www.nfaoa.org/documents/2000statement.pdf.
345
Id. Mr. Larson states: “As noted on page 11 of the January 2000 issues of American Rifleman,
Federal law on registration was defined in 1968 by the U.S. Supreme Court in Haynes v. United States (390
U.S. 85), ‘when it declared that … existing federal case law says with great finality that gun registration
only applies to the law-abiding.’” Id. The quoted language in Mr. Larson’s rebuttal is a recitation of the
BATFE’s language in opposition to an amnesty period.
342

86

Exhibit A, Pg. 405

inclined,’ there is no way to determine such a condition under current law or
otherwise.”346 However, if the BATFE is concerned about individuals registering
firearms, which would not have been previously registrable, § 207 (b), (d), does not limit
prosecution for making false statements. Irregardless, the accuracy and completeness of
the NFRTR is instrumental in ensuring that law-abiding citizens are not prosecuted,
which should take precedence over the possibility of additional, not previously
registrable, weapons being added to the NFRTR.
4. “Anyone, including felons, mental incompetents, and persons whose possession
of firearms would violate State and local laws, could register NFA weapons.”347
“Excluding them from the amnesty, as well as disallowing any registration that ‘would
violate State and local laws’ would address this concern.”348 In fact, under current law,
the NFA represents an odd, continuing law enforcement contradiction because (1) under
the 1968 amnesty, a person who possessed an NFA firearm or device in violation of state
or local law, could register the firearm or device, and BATFE was legally precluded from
disclosing that information; and (2) as state laws change in future, e.g., to prohibit the
possession of silencers, machine guns, short-barreled shotguns or other selected NFA
firearms or devices, persons who live in those states who possess these items on the basis
of an amnesty registration or subsequent legal transfer are transformed into violators of
346

Congressional Research Service, Memorandum: ATF’s National Firearms Registration and
Transfer Record: Issues Regarding Data Accuracy, Completeness, and Reliability, by William J. Krouse,
Nov. 28, 2005, at 17 (citing to United States v. Stout, 667 F.2d 1347 (11th Cir. 1982), available at
http://www.nfaoa.org/documents/CRSmemoNFRTR0001.pdf. Mr. Krouse gives the example of Bryan v.
United States, 542 U.S. 184, 191-92, explaining that “ while ‘the term knowingly does not necessarily
have any reference to a culpable state of mind or to knowledge of the law,’ a ‘willful’ violation is
committed when and individual acts with knowledge that his conduct is unlawful.” Id. at 17 fn. 99.
347
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2001, Part 5, Statements of Members of Congress and Other Interested
Individuals and Organizations, 106th Cong., 2nd Sess., at 26 (Washington, GPO, 2000), available at,
http://www.nfaoa.org/documents/2000statement.pdf.
348
Id.

87

Exhibit A, Pg. 406

state or local firearms laws, and there is no legal mechanism under which BATFE could
legally notify state or local law enforcement authorities of that fact. Legislation such as
the foregoing could resolve this law enforcement contradiction.349
5. “A new amnesty for registering machine gun, bombs, grenades, silencers, etc,
will be perceived as a retreat by the Administration from its position of favoring stronger
gun controls, e.g., banning the possession of semiautomatic assault weapons.”350 Since
the 1994 Assault Weapon Ban was not renewed, the Administration’s position is no
longer favoring stronger gun controls, but rather reinforcing the Bill of Rights, namely
the Second Amendment. Nevertheless, as Mr. Larson points out, “Offering an
opportunity to correct defective records would more reasonably be seen as enhancing the
Administrations position.”351 Furthermore, individuals can currently register newly
manufactured silencers, AOW’s, and short-barreled firearms by application to the
BATFE.
6. “An upsurge in the making of NFA weapons particularly, short-barrel shotguns,
can be expected as individuals seize the opportunity to acquire NFA weapons without
incurring the 200 making tax.”352 The BATFE continued, “Also, the $200 transfer tax
would be avoided by unlawful transfers to persons who would register the weapon during
the amnesty.”353 While these are legitimate concerns, the possibility that law-abiding

349

Under the original NFA and during the 1968 Amnesty, a Chief Law Enforcement Officer (CLEO)
signature, fingerprints of the applicant, and photo of the applicant were not required for an original
registration of an unregistered NFA weapon. The registration was on a Form 1 or Form 4467.
350
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2001, Part 5, Statements of Members of Congress and Other Interested
Individuals and Organizations, 106th Cong., 2nd Sess., at 27 (Washington, GPO, 2000), available at,
http://www.nfaoa.org/documents/2000statement.pdf.
351
Id.
352
Id.
353
Id.

88

Exhibit A, Pg. 407

individuals are being prosecuted and convicted, severely outweighs a concern of a
possible loss of $200 per application for making a NFA firearm.354 As Mr. Krouse points
out, “The amnesty provision(s) could be crafted to limit its scope to firearms that were
commercially manufactured in original configurations that made them subject to the
NFA.”355 Nevertheless, this issue is addressed in the next section Amnesty, subsection
Amnesty Process.
7. “Firearm imported with certain restrictions, such as for sales samples or law
enforcement use only, would be transferred to persons who would register the weapons
during the amnesty and circumvent the restrictions.”356 As Mr. Larson points out, “There
are relatively few of these firearms, which can come from only two places: (1) law
enforcement agencies; or (2) Class III dealers. There would be no reason for a Class III
dealer, much less a law enforcement agency, to knowingly violate existing law.”357 He
continues, “Also, ATF could easily disapprove any application to illegally transfer the
ownership of such a firearm—which is already legally registered.”358
8. “It would create ill-will on the part of person who have been prosecuted for
possession of unregistered NFA weapons, had their weapons seized, or voluntarily
abandoned their weapon to the ATF in the past.” The only reason for reasonable ill-will

354

It must be noted that there has never been a tax for registering a NFA firearm, even under the
NFA of 1934 and 1968 Amnesty. The $200 tax is for making and transferring NFA firearms, other than
AOWs, which require a tax of $200 for making and a tax of $5 for transferring.
355
Congressional Research Service, Memorandum: ATF’s National Firearms Registration and
Transfer Record: Issues Regarding Data Accuracy, Completeness, and Reliability, by William J. Krouse,
Nov. 28, 2005, at 17, available at http://www.nfaoa.org/documents/CRSmemoNFRTR0001.pdf.
356
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2001, Part 5, Statements of Members of Congress and Other Interested
Individuals and Organizations, 106th Cong., 2nd Sess., at 27 (Washington, GPO, 2000), available at,
http://www.nfaoa.org/documents/2000statement.pdf.
357
Id.
358
Id. Congress must be cognizant of the possibility of the BATFE denying applications to register a
firearm and the effect of such, if the legal process cannot be completed by the end of the amnesty period.

89

Exhibit A, Pg. 408

to be created is if the BATFE has prosecuted individuals for possession of unregistered
NFA weapons, when that individual had legally registered his/her weapon, but his/her
paperwork was lost or destroyed. Furthermore, as Mr. Larson points out, “[A]n amnesty
would likely enhance ATF’s public image.”359 More importantly, even if ill-will results,
it is crucial that the Government not prosecute innocent individuals, who merely lost their
paperwork.
9. “A new amnesty would reward those who have unlawfully stockpiled
unregistered contraband in anticipation of registering them during a future amnesty and
encourage people to retain or acquire unregistered firearms in the expectation of other
such periods.”360 The BATFE has failed to provide any evidence that such would occur
or encourage individuals to stockpile unregistered NFA weapons.361 More importantly,
post-successful-amnesty, the use of the NFRTR in criminal prosecutions of these
individuals should be flawless. It is also important to realize that the BATFE has
administratively removed thousands of NFA firearms from purview of the NFA, as
collector’s items; to the extent these firearms were unregistered, the BATFE has itself
created an expectation of “reward” in the sense it claims. Specifically, "ATF May Have
Already Removed 50,000 to 100,000 or More Individual NFA Firearms from the NFA as
Collector's Items."362
10. “An additional amnesty would only be a temporary solution. It would be only
a matter of time before people would claim they did not know about the amnesty or did
359

Id.
Id.
361
Id.
362
U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 1998, Part 5, Testimony of Members of Congress and Other Interested
Individuals and Organizations, 105th Cong., 1st Sess., at 30-32 (Washington, GPO, 1997), available at
http://www.nfaoa.org/documents/1997testimony.pdf.
360

90

Exhibit A, Pg. 409

not realize they had an NFA weapon in their possession.”363 To begin with, an additional
amnesty should NOT only be a temporary solution. If the BATFE properly conducts the
amnesty and, thereafter, continuously and meticulously checks, maintains, and improves
the NFRTR, future GAGAS audits by the GAO should depict the NFRTR as sufficient
for criminal proceedings. Moreover, while ignorance of the law is not generally
recognized as a legitimate defense, a serious effort by BATFE to continuously publicize
the amnesty period at the national, state, and local levels at least 90 days before and
continuously during the amnesty, as discussed in the next section, would go a long way
towards restoring credibility in the Government and in BATFE364 “In fact an amnesty
would strengthen ATF’s legal cases by, among other things, enhancing the accuracy and
reliability of ATF’s records.”365 More importantly, and continually overlooked by the
BATFE, the purpose of an amnesty in this instance is to ensure that law-abiding citizens
are not prosecuted for possession of an unregistered weapon, which was legally
registered, but for which the NFRTR is in error and the paperwork has been lost or
destroyed, or unjustly deprived of their valuable personal property─possibly a rare
firearm that is a family heirloom.

D. Amnesty366

363

U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal
Service, and General Government Appropriations, Treasury Postal Service, and General Government
Appropriations for Fiscal Year 2001, Part 5, Statements of Members of Congress and Other Interested
Individuals and Organizations, 106th Cong., 2nd Sess., at 26 (Washington, GPO, 2000), available at,
http://www.nfaoa.org/documents/2000statement.pdf.
364
Id.
365
Id.
366
H.R. 2088, 109th Cong. (2005)(reintroduced as H.R. 1141, 110th Cong. (2007). The Veterans’
Heritage Firearms Act should be consulted in the institution of any amnesty. The work, foresight, and
understanding of all issues, is clearly depicted in this Act. Some provisions in this section have been taken

91

Exhibit A, Pg. 410

For purposes of this article, the term “individual” connotes an individual person,
corporation, or trust, since a NFA firearm may be registered under any of the
aforementioned entities.

BATFE Re-Organization: The BATFE shall institute a new division, The NFAAmnesty and Firearms Classification Division, whose duties shall include (1) processing
all Amnesty related registrations, (2) classifying firearms as "collector's items," "curios
and relics," or "antique firearms" under provisions of the NFA and/or the GCA, and (3)
determining whether unregistered NFA firearms encountered after the amnesty provision
expires should be registered, destroyed or removed from the purview of the NFA and/or
the GCA.

Time Period: The new amnesty shall last for a period of 90 days, unless changed
by Congress. The BATFE shall immediately preceding and during the amnesty,
continuously nationally publicize the amnesty. This shall be implemented through posters
in U.S. Post Offices, public service announcements, advertisement in major firearm
publications, letters to those with currently registered NFA firearms, and distribution of
materials through all Federal Firearm Licensees. Furthermore, the BATFE shall be
responsible for informing the Congress of the status of the new amnesty period every
fifteen days, during the new amnesty and new amnesty extensions, if necessary. If the
BATFE fails to accurately inform the Congress of the amount of pending registrations,

and/or modified from the Veterans’ Heritage Firearms Act of 2007, available at
http://www.nfaoa.org/documents/H.R.1141VeteransHeritageFirearmsAct.pdf.

92

Exhibit A, Pg. 411

after ninety days, or that set by Congress, and at any, if any, amnesty period extension(s),
a new amnesty shall be immediately instituted.
Furthermore, any registrations filed by an individual and denied by the BATFE,
shall be reviewed by a court of competent jurisdiction. A decision in the favor of the
applicant shall be entered into the NFRTR, even if the amnesty period has ended. At no
time, during judicial process, shall the BATFE have the right to destroy, convert, or
obtain title to the firearm in question.

Forms Amended: All BATFE forms, namely Form 1, Form 2, Form 3, Form 4,
and Form 5 [herein, Form], shall be modified to E-Forms and amended to include an
Estate Verification Portion.
The implementation of E-Forms will ensure the accuracy and completeness of the
NFRTR by removing the human component of inputting data into the database. Jeffery
W. Koch of the Office of E-Government & Information Technology, in response to my
question about implementing E-Forms, declared, “There is merit in the idea. And in
general, the Gov[ernmen]t has a goal of increasing electronic filing, and of citizen selfservice.”367 Since many of the errors in the NFRTR are the result of typographical errors
or omissions, by requiring the use of E-Forms, the data entered by the applicant,
submitted electronically, can be stripped by the database program, entered into the
appropriate data fields, directed to the appropriate examiner, and alert the examiner if
data fields are incomplete or missing.368

367

Private Communication from Jeffery W. Koch, on file with the author.
E-Forms have already been made available by Titleii.com. To see the available forms, see
http://www.titleii.com/Forms.htm. If you click any of the Forms, you can type in the correct information,
368

93

Exhibit A, Pg. 412

This process is depicted by the following: The BATFE implements E-Forms on
its website for the registration and transfer of NFA firearms. The applicant logs onto the
website, picks the appropriate Form, and enters all the appropriate information. If any
data field is omitted, the program will not allow the individual to submit the uncompleted
E-Form. If the applicant is an individual, not a Corporation or Trust, the E-Form will
allow for the uploading of the applicant’s picture, as required by the current Forms. Once
completed, the applicant will submit the E-Form. At that point, the program will
acknowledge the submission of the E-Form and produce a Control Number for the
applicant to use in any correspondence with the BATFE regarding his/her E-Form
submission. The program will also inform the applicant, if the applicant is an individual,
not a Corporation or Trust, that he/she must submit the appropriate completed finger print
card, to the appropriate address, referencing the Control Number.
The program will then read the data fields, enabling it to determine the
appropriate examiner, and forward the E-Form information and the prior registration
information to the appropriate examiner for his/her review.369 The examiner will then
review the information ensuring that all fields are complete, correct, and correspond with
the prior registration information. If the examiner finds an error, the program will make a
backup of the original submission, which will be attached to the electronic record, and
allow the examiner to make the appropriate changes.370 Since the need for examiner
intervention should be extremely limited, the possibilities of typographical errors and
which is then entered onto the appropriate BATFE Form. While Titleii.com’s E-Forms do not allow for the
uploading of pictures, it serves to show how easy and cheap it is to create E-Forms.
369
Currently, the BATFE assigns examiners based on the current owner’s last name. By
implementing E-Form and the programming I have discussed, this could easily be changed in the future if
the BATFE decides to change its procedures.
370
This will ensure that the examiner does not accidentally delete the appropriate information. This
backup will be searchable, just as the regular NFRTR is, to ensure that the appropriate information can be
found.

94

Exhibit A, Pg. 413

omission should be drastically reduced, if not completely eliminated.371 Once all
information has been submitted and approved by the examiner, the information will be
entered into the NFRTR. The program will then print out a paper copy of the Form to be
signed by the examiner, as well as a digital copy burnt onto a CD, which will be digitally
signed, all of which will be mailed to the applicant. This will allow the applicant to print
out new copies of his/her Form if he/she loses the paper copy, while ensuring to the
BATFE that it is a legitimate copy via the digital signature.372
The Estate Verification Portion shall require a registering individual to place the
name and address of an individual to contact [herein Individual Contact], upon his/her
death. Where possible, the Social Security Number of the Individual Contact(s) shall be
listed. There shall be space provided for up to three individuals, but only one individual
need be listed. Furthermore, the BATFE shall institute a check box, next to each
individual’s name, which shall allow the registering individual to enable the individual
listed to check the current status of the registration, while the registering individual is still
alive. If a form is processed, absent an Individual Contact, the BATFE shall be held
solely responsible for determination of the executor/administrator/heir of the firearm. In
no instance shall the absence of an Individual Contact, or the inability of the BATFE to
determine the executor/administrator/heir, be a forfeiture of the firearm(s).
If the firearm to be registered during the amnesty is a machinegun, the applicant
shall be required to certify that to his/her knowledge, the machinegun was not
371

While typographical and omission errors can be reduced, if not eliminated, the database’s
accuracy and completeness will rest with the NFA examiners and annual audits.
372
In the light of trends toward using biometric identifiers, a gradual tightening of standards to
acquire state-issued identification and related documents, such as driver's licenses, particularly under
provisions of the Real ID Act, it may be advisable for the NFRTR to formally comply with federal
provisions for positive identification that are and will be implemented in future, in its standards for
postively identifying owners of NFA firearms. Similarly, BATFE might consider establishing standards for
the reliable identification of individual NFA firearms

95

Exhibit A, Pg. 414

manufactured after May 19, 1986. If the BATFE determines the machinegun was
manufactured after May 19, 1986, and it proves that the applicant had knowledge of this,
the applicant may be prosecuted for making a false statement.

Amnesty Generally: The Attorney General shall publish in the Federal Register
the institution of all amnesties, as well as, nationally publicizing the amnesty 90 days
prior to, and during, the 90 day amnesty period. No information or evidence required to
be submitted by an individual to register a firearm under an amnesty period shall be used,
directly or indirectly, as evidence against the individual, in any criminal proceeding or
concurrent violation of the law. The furnishing of false information shall be a
prosecutable offense, not protected under the above amnesty provision; thus, allowing the
use of information and evidence submitted to the BATFE for the prosecution of false
information.

Amnesty Process: Each person in the United States, who is in possession of a
firearm defined by the NFA, CGA, and FOPA, shall register his/her NFA firearm with
the BATFE NFA-Amnesty Division without payment of any tax or filing fee,373 on an EForm to be provided at no cost by the Attorney General. The amnesty registration form
shall include the same data elements appearing on Form 4467, which was used to
registered unregistered firearms during the 1968 Amnesty, and an attestation that
possession of the firearm by the registrant will not, to the best of the registrant’s
knowledge, violate any federal, state or local law. While the applicant must provide

373

No tax or filing fee was incurred by the applicant under the original NFA or during the 1968
Amnesty.

96

Exhibit A, Pg. 415

sufficient information to reliably identify himself or herself, and the failure of the
applicant to do so may constitute grounds for disapproving the registration, in accordance
with established procedures for registering unregistered firearms under the original
National Firearms Act, and during the 1968 Amnesty, no applicant shall be required to
submit fingerprints, photographs, or certification by any law enforcement agency. In the
absence of clear and convincing evidence to the contrary, the Attorney General shall
accept the information provided as true and accurate, and shall treat any form that is
postmarked during the amnesty period as received during the amnesty period. If the
Attorney General determines that an individual may not register a firearm during the
amnesty period, the Attorney General shall, under the request of such individual, (1)
provide the individual any evidence on which the Attorney General’s decision is based,
and (2) promptly hold a hearing to review the determination.
The court of law may find the following: 1. Pursuant to § 922(o), the weapon was
not legally possessed as of May 19, 1986;374 thus, requiring the immediate forfeiture of
the weapon; 2. Pursuant to § 922(o), the weapon was legally possessed as of May 19,
1986 ;375 thus, the BATFE must register the firearm. In no instance shall any weapon be
destroyed by the BATFE, prior to the exhaustion of all possible court proceedings.
Furthermore, if the court finds that the firearm was legally possessed prior to May 19,
1986, the BATFE shall pay all reasonable attorney fees of the applicant.

The BATFE NFA-Amnesty Division and Firearms Classification Division shall
be responsible for instituting a new NFRTR: The new database will allow for the
374

The term “legally possessed” means to have a legal property right to it, even in the absence of
registration paperwork from the BATFE.
375
Id.

97

Exhibit A, Pg. 416

stripping of data from the E-Forms and probabilistic searches. The old database will be
kept, as a backup, for twenty-five years. This will ensure that all previously registered
firearms are registered in the new NFRTR and that an individual is not prosecuted for a
firearm, which was registered in the old NFRTR, but not in the new NFRTR.

Post Amnesty: The BATFE shall be responsible for maintaining the accuracy of
the new NFRTR. After the completion of the necessary amnesty period(s), the U.S.
Government Accountability Office shall conduct a GAGAS audit of the entire NFRTR.
Furthermore, the U.S. Government Accountability Office shall, on a tri-annual basis,
audit the NFRTR to determine its accuracy; during other years, the Department of
Justice, Inspector General shall be responsible for an annual audit of the NFRTR. In any
instance, where the NFRTR is determined to be less than ninety-nine percent accurate, an
amnesty period shall be established within 90 days after the audit findings are published.
The BATFE shall inspect the Social Security Master Death File, every year, to
ascertain if any registrants have expired.376 Upon certification of the death of a registrant,
the BATFE, if the estate has not previously contacted them, shall use the Individual
Contact information to inform the estate of the registration requirements of the particular
firearm(s). The BATFE’s failure to locate the executor/administrator/heir shall not
constitute grounds for seizure and forfeiture of the firearm.

376

THOMAS N. HERZOG, FRITZ J. SCHEUREN & WILLIAM E. WINKLER, DATA QUALITY AND RECORD
LINKAGE TECHNIQUES 174 (Springer Science+Business Media 2007).
.

98

Exhibit A, Pg. 417

NFRTR Defense: In any criminal proceeding, an individual may offer the NFRTR
audit records to the court, for the jury’s consideration, unless the new NFRTR is onehundred percent accurate and there are no records depicting otherwise.

XI. Conclusion

As has been depicted, the NFRTR is in a state of disarray, allowing for the
prosecution of individuals who lawfully registered their firearms, but through no fault of
there own, the paperwork was lost or destroyed. This problem has been documented in
Congressional Testimony, since the late 1970’s, and continues through today. Mr.
Napolilli would likely have been convicted of a possession of an unregistered firearm, if
he had not found a copy of his paperwork. Even then, the BATFE believed the
paperwork to be a forgery, and even when the BATFE determined it was not, they
refused to return the firearm. Then, there is current day Error Letter from the BATFE to
Mr. Shafizadeh, owner of Pars International, where the firearm had been transferred in
April 2007, only for the BATFE lose all records of such, by June 2007. Luckily, Mr.
Shafizadeh could provide copies of the approved paperwork, but where would he be, if
such was not the case? One must remember that neither a citizen nor a criminal
defendant has the authority to review the NFRTR because it is tax information. Thus,
how is a defendant able to confront the database, when he/she cannot even search it, to
ensure that the BATFE’s search was not in error?
How is it possible for a Governmental Agency to knowingly consistently lose
and/or destroy paperwork, and yet, rely on the absence of paperwork in criminal

99

Exhibit A, Pg. 418

prosecutions? This violates our sense of justness and fairness, and must be corrected. As
has been depicted by firearm law experts, an internationally recognized expert in
administrative records and statistics, and a senior analyst at the GAO,377 the only way to
correct the NFRTR is through an amnesty. While Congressional Hearings on how to
implement an amnesty will likely take several months, the Congress must act
immediately to stop the prosecutions of individuals, who are unable to show approved
paperwork, because of the inaccuracy, completeness, and reliability of the NFRTR, until
the NFRTR is adequately corrected. If the Congress is unable or unwilling to ensure that
justice prevails, the Judiciary must find, as a matter of law, that the NFRTR is insufficient
in criminal prosecutions.
As Mr. Scheuren declared in his letter,
Even though the first edition of the book has just come out we are already
contemplating a second edition and plan to include the ATF issues discussed
above in a new chapter. Will the story we tell have a happy ending or
continue to be stalemated? We are hoping that changes will be made, so we
can report a success and not a failure.378

I too hope that a success can be reported, and that, without Legislative or Judicial action,
the NFRTR will be corrected. However, in looking at the continual trend of inaction,
such is not likely to be the case, especially in light of then-NFA Branch Chief’s
statement,
If the court should discover that our negligence caused an unwarranted
arrest and trial, the resultant loss of public trust would be irreparable. Just
as serious is the possibility that an innocent man might be convicted if he
could not find his registrant form and we certified that he had not

377

Eric M. Larson stated that his comments reflect his personal opinions, and do not represent the
policy or position of U.S. Government Accountability Office.
378
Letter to Alan B. Mollohan, Chairman, Subcommittee on Commerce, Justice, Science, and
Related Agencies, Committee on Appropriations, by Fritz J. Scheuren, VP Statistics NORC, 2 (Dec. 11
2007); available at http://www.nfaoa.org/documents/Scheuren_Committee_Chair_Letter.pdf.

100

Exhibit A, Pg. 419

registered the firearm when, in fact, we had failed to locate his registration
in the Record [NFRTR].379

379

NFA Branch Chief memorandum to ATF Assistant Director for Technical and Scientific
Services, Purification and Verification of the National Firearms Registration and Transfer Record, Apr. 3,
1975, reproduced in Oversight Hearings on Bureau of Alcohol, Tobacco, and Firearms, Senate Committee
on Appropriations, 96th Cong., 1st Sess., at 42 (Washington, GPO, 1979), available at
http://www.nfaoa.org/documents/1979_Hearing_Excerpts.pdf.

101

Exhibit A, Pg. 420

Exhibit 22
(Testimony of Eric Larson)

Exhibit A, Pg. 421

TREASURY, POSTAL SERVICE, AND GENERAL
GOVERNMENT APPROPRIATIONS FOR
F1SCAL YFAR 1999

HEARINGS
BEFORE A

Sl'BCO:VDIITTEE OF THE

COMMITTEE ON APPROPRIATIONS
I-IOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
~coMM11TEE

ON THE TREASURY, POSTAL SERVICE, AND GENERAL
- GOVERNMENT APPROPRIATIONS
JIM KOLBE, Ariwoa, Chalrmon

FRANK R. WOLP, Vlralnla
STENY H. HOYER. Muyland
ERNEST J, ISl'OOK, Jft., Oklahoma
CARRIE P. MEEK, Florida
MICHAEL P. FORBES, New Yori<
DAVID &. PRICE, Nonh Ca.ollna
ANNE M. NORTHUP, Kentucky
ROBERT B. ADERHOLT, Alabama
NOTE: Und(t.r Coml'Nt.t.H JWIM.. Mr, Llvfn~ at Chainnan ol the Full Commht.M, •nd Mr. Obey,•• Ranking
Minority M1:mbor of tho Pull Commiu•. an aut.horitt.'d to •il u Mnnbo,.. of 1111Suboommlt.teee.

MICHl?LJ..e MRDeZA, Boa SctiMJDl', J EFF AsHPORO, and TAMMY flUOH£$,

S taff A.ui1ta11ts

PART5

STATEMENTS OF MEMBERS OF CONGRESS AND OTHER
INTERESTED INDIVIDUALS AND ORGANIZATIONS

U.S. GOVERNMENT PRINTING OFFICE
47-740 0

WASHINGTON : 1998

Fo<oale byche U.S. °""""""'' PMW>a OOko
~1pc1h*•idcnt ofDocumct11S. Coogm.11oaal Sdet OIIi.cc. WahiJlgtOCI. DC

20402

ISBN 0 · 16·056447·6

Exhibit A, Pg. 422

25

•--itqpm-

Propmcd R.....¥11 oftbe NaDoml
ood ~ Reootd.
the cu.ody ofme Bur... ofAloolool, T - " " ' f"......,.
ad its Propmcd I ........... to the D1;c wt
, olJultioe

by

Erie M. Larson'

Subcommittee oa Treasuty, Poml s.Mce""' GeoaW Oo•aofdle

Committee OD App~up.-......
'-""·
HouxofRqa

.. ..

Oftice Bu~cli..
Wasl>ingt4n. D.C.

B-307 Raybum -

April 3, 1998

M ....,_is a
tbe
L Wi1-Prl«
IO Gwt
Cal..,,,.. the BlwComribu<iQg Edit« IOtbe Olficia/ R.Lift""""°"' of c;..ldr OJ/idal Pria
- o f Gwt Vat...
Omlqr of""'-., tbe
Gair,.,...... _ _ ,,_,,..,,..,
Naboaal Riftc
'Eric

$landard
utd bas bom a

the
•ofA-a lincc 1968. His rcseorda has bom publilbed io 11w
IWport, CADA
c;,,,. .Jowna/, Moclwlw c;,,,.-. 0 -0 - . s-all Anv · 11w c;,,,. .,_,., and
be is audiorof V""""""'of dw
H4R Hondy-Owt: A PotbtGwldt,. n..;;.
ldmli~ Ajourmlitt and dcmJjp ...... by uaioiQg. lie
1974 rrd>e UaiYU'lily ofTCDS al Ausba, whe<e be abo ......Sa PILO. and throe .......... cletPA•

a..

w•

-Bon

.,-oc1

..;ii.-·

Exhibit A, Pg. 423

26

My_,,. is Eric M. ....,_ I -mod bcb:e dis s.bcommin.e in 1996, ...SU. IWI, end om doiQg
.,...., dlis,_., --.-arcnio1heNlboaol r,,__ Rqiolnlioa ond T.....m Record
(NFRTR~ ThoNFR11l-tbe--Aa(NFA)oll934. ThoNFA
is clesopecl to """'10I firtarmo thoup to be COilllDOli} UIOd by crimiools by requiriaa ...........
oltbe linormo, Md ..... ptihililiYo taxes to rmuce
discribWoa, ond ow..,ai>ip.
h isa lw1b Cidcral law to di-...ge illqplly IDIJJllficbJrio ld&as. or_..,.
lllld1ine suno. ond similar - - . aod !he cunu.i down ol """"""'ionol oho<,...,. or rifles

thar-._

band.,...-.

(regll'dlca of 1hdr ealib«) to make eencealable W - Any v\olalloo ofthc: NFA;, a felony,
canyins a penally of up to a SI o,ooo fine end 10 yeari impri_,_ upoo . . . -

The NFRTR i1 a permanOl'.ll record of aD transtdjons involvin8 NFA 6tCIUTM in the Unitod States.
II is currently localed within Ille Buseau of Alcohol. Tobacco end ,,_(BATl'), which under
current law is ruponsible for administcrine: the NFA. The· NFRTR oontaiu a variety of rooords.
includins •ho original l'Olli1U11lioru acd suboequent tnrufcn ofNFA firearms 10 .... end local law
ollloen...,. and local - . private ci.U- who .,., leplly qualified to own .uch
f i r - ....... ""' prohibded &om doing .. . - ..... « loeal law, ofb'anlfln to and &om
fcdcnly lic<mod !'>'FA fircorms dealen, end ofNFA firwms-.., by fmcr-.lly
tioenscd NFA firoanm-..._ Bcause oflho _.,. ~ f« viololions oflhe NFA.
IOO.nle IOCIOI d k $ ' • ii--* IO a\tOid ~ I*
. ' • Md IM uNawt..l .mn ofVllic8y
,._NFA--

"*

1 ... . _ . . ,... today tO respeafiJlly
lhe ~·
• "'to -mg ...
NFR11l '*-..-Y«tbe-o( A1co1m1, Tol>oca> aod F.-(BAm and to pee
•ly
......... - . to tho
Juolice. ,,.,... pr<lilllliy tnow, the:~ of luslX:e
fOt !he boclrgwnd cbd" of penoos who wish 10 p<JfCbue ....,.,,. w1JiclJ
is scbcdulcd to 80 mco e&ct lhis yeor. Tbetefiltt, it would be reladwly
~POlat• dJe
NFR11l mco tho mcbriog idraouuolutt, and modificarioas to allow lbr administralloo oldie NFRTR
would likely be w:ry minor RenlOY>I oftbe NFRTR ficm BATF wiD alao pl.toe tholC =ords within
a profenional Otpniurioo that is capable of maintaUUng them, and prOOably will require 1 bodly
noodcd 1
00% .--d wriflcobon. Tho BATF (and, possibly, ocher
agencies) would
continue to have acoea to d'° infonnarion in the NFR~ for J
egit:im11e law enforoemen1 pwposes.

is,..,.,....,..

llt\*••-of

_,.to

law..,,._,,...

My ~ about errors in tho NFRTR eYOIYed ficm tho ltUdy of ccnaln rare fir......, thol ta!
under the N'.FA ill 1~ tarady for tcchnicaJ reasons. not because they were commoniy 1ssoci11ed
,.;11i <rinWnal actMlies. Toclly, these fireatms are historical artl&cu thll reOICt I bypie en when
there ...,. no fcdcnl coauob, aod Wtually no - . """'10b, oo firw1IU daip. Tbw, dJey
nidio in US. fireorms s-aJogy, beca>te there is n«lii"ll doe like them, ond dJey
are h;gbly prized by colloctoro. M my research oo these ..,.. ,.... publilhcd in ...... ,...,...firtunt boob, .............
bad inberilcd lhoae-~····
me. ThoBATFlm1qw
edmytole-ioditco · c....,..iolhoNFRTlltowi:the

-

I"""""

penoas....,

....

2

Exhibit A, Pg. 424

er- - Ibo NFA as coAeaor's items, but lhM it"°'--. In foci, my
_tnd,.._milmlasd>emult olmy.iscoYayol...-orronmtloe NFR'J11.ml
- 1996 •Mrirrrm rr-kn '"" 1hQ11trJv rbr his iD BA1F• iDICftll to tty ..s ~ MMSllioD
owoy tnim orron io Ille NFRTR or impup my mocMs, and tNI it wllu BATF bos- dcq.

- " ' ol1hnc

m

-

my -

BATF lo...,.... ponnyieg me u • colka«, bul w1m chimscd
it tho &ct thol some
people wbo iolwrilal oomc ol lhcte &...... told me thol BATF . . _ , die - . . , . _ . "°'

reaitt<ml. """doclorod !he- ~--...i

this_..,

be -..S co tho GcMr..-:; ...s
oppor<ftly, oome...,.., In oche< ;nstances, people who--. .....,.S by
told mo they
.coured their prcmitct. found a vaJM:I ttgisrration documcnl-end ahowed it to BATF. Thea.
oJlea«lly, BATF .,;d 1 ristalcc bad bocn made and lhe NFRTR wu oma>docl to register the firarm
10
llwfWownor. In CMIY m...noe, the people involved told me tboy-. a&aid ofBATF,
and dictn•t wan1 10 be ideN.ified.. but wanted me to know ttiJ information. Whi~ there certainly is
a "collcctor'a item" i.ntcrelt in mis 1ituation. the loss or destruction otfireann Rgistrati.on records by
lhe BATF cleorly places my cooccms in another dimcosioo lhat ls ranovecl tnim I"" collcdll>g.

the-.

I was owueol"-......,.lbr 1 oumberofy<W1, bul there--' oo way olproviJ>g them wayorlhe--olthe v<il o f - thol tllidds NFRTRf'llllOnls-public ~
The,_ it lhM the NFA Odf'p-. tbm diodooure as does the TIX Code ol l - . under
whidltheBATFbosdcemedthemtobe"12X""'"'5." ThcBATFlbo~-tlie"tD
"""'11" ..... IO up wnqploiog by ds-lllld

°*>-

from my pa $ ,;..,. the~ rtgt:fdiQg tbe 6ranw I wat IWWW t • •

~

di I

. ..

ly iD

Mardll996,b--

rni. I was •eel byL lliclwd Linle6eld,-~ oltbe~ Anm Doolen A....-.UO(CADA) to tcstlfy be{ore tbil - - ~•more 1.-.--.asthelaw
ollowl, for l h e - boro ~ Handy-Ouo, r.wble's Game Gotter Oua, and 9milar fircanns thol
come under the NFA in 1934 moioly £or 1ecbnicol · I'd known Did< since 1919, ml
he was owwe olmy .-di, bul CADA's testimo<ly WU oot lim&tod IO theoe fireonns. lnoleocl, oflhe......,.. CADA leotifiocl in 1996 WU to ask for. dlaose in lhe law lO ollow tedenlly liTcttml dcllen 10 buy or tnnsf<r "wrio Of retie" fin:arms amons theonooMt U gun shows. The law
itself al that time wat sllent on the issue (that is, nothins in the '°gal oode prohibited soch

and

~~ bul BATF tool< the poshkln thol such ....-oos-. Ulegool,
nobody wanted lo
incur lhe 1<811- olflghting the BATF. So, !he law wu ul"-tely choJ,...s lo oJlow tedenJly
&c.nsm fi...,,... dealers 10 be Ible t0 i..y lllld tell froro ...i. oche< • I"" - ..

The-......, was dlol for the finl time, Y>tid and,_.,._ olthe mi_...... ml
~ ol'NFRTR -became ovailable.

This it a IN! Ml boon callocl the Busey
n.-opt. "1lidlwasNleuocl . - a F - o l - A c l RoquM. Tlis-itthe
rooordof1 •'~ ; llP" ...nag- ll BATF h<adquorten - -00 Oclobcr II, 199S.
"' ............ thcn-09d"olthe nr...... Act Bmd,
dm
the aTO< me io the NFRTR was SIM when be finl .......S bit duba the 'ft* bcCorc; omd -

Mr.,_.,._, -

)

Exhibit A, Pg. 425

28
BATF always t..aifi<d in ccun that tho NFRTR was 100% """"'"'alt.bou8Jldw...,. oot 100%

auc. Towtnl theend o(!Os ....---... M<. Busey clilcuM<d -•«tins a iiUlllb<r ofenors that be
- . .......ed:

Wbll we' re eoin8 '°do is we'r eP@.to go ti.ct,. swtina with the W:csa mtr)' and 'WOftirig
bad: IO !he oldesl entry and ,,,,.;,,,. """'!bard copy ofcvay wi1li ils entry into the
data ;i'it's C>C>iT<Cl. I thinJc onp..11y ,.., figurod this woold Wee 7111 man clays to
do this wrtb fiYe people ~tring ., a computa- eight hours a day.

'° -

But it"1 the orly~ W t 'We can feel that we can ~·er get it oomp&etely accurate. It MU fine
to bqM J111ning et'eJ71hi111 in acamde • yetU ago Ot" at lttUt N l'"'"'"kd "yeti/' "80 it
• 'OS COl'N!CI, ht what ore J"'" i oint to Jo witlt tit~ mrriu 1•a.t go bock U> the early 'BOs
M4 t•e '1tn •nd dae '601? [boldface added for cmph1ai1).
It wu an as1onishing admission. Based on Mr. Busey'• statemcnu, and information about aDeged
emwt in the NFRTR &om firearms coUcctors, I anatyzed stalisdcal data that BATF bad publicly
n:'-<d ...b)'WonNFRTR...-aai.,;0eosinceawma-dy 1990. lnmy 1996 testimony,
I document«l o!Mous mm in the NFRTR, including !he &et that every year sinoe 81 least 1992, the
BATF reported rOJiSU11ic>os or firearms during years and in categoriol w!Uoh they~ logi<aly
e< leplly txisl, and the apparmt addiboa ol firatms to the NFRTR re< years befure 1971 . I also

•

..

.,.__ a copy o(the Busey Tramcrip< in the~ to my 1996 ,...m-y.

Oo May 21, 1996. las than a~ afia- my....-,., U.S. Dbarict Judge John A. MxKeoD<
dUnmed t!Ye Otllf'iaio• for <mq £i>t,.1bcx> olNFA firatms oa aff*I, declaring that the NFRTR
records \¥Cn •oo unrdiable to support a ~ In &.ct. a BA~ Spocial Agf:M. Mr. Gar.;i N
Sdlliblc, taDDod !hit BAlF ~ coold Si &a have datrO)'ed the _,,,_. in ~ Th:
U.S. Altomey prooeaning th< cue declined to - , . . , and rho BA'l'F bu not appealed th<
dismi1sats. TheBATF Vri'l!U this case to go away. Ml will show it dn't going to go away. becau!'I.'
it is the objccc continuins action in Federal Court.

"

or

Ast~)'. the BATF made no apparent effort to correct the problems that I idcntlfi~ becall$(·
l deteo1ed thtm In tho next round of data it released the followin.g, yar. So. I recumed to testjh
before this Subcommittee nearly a year lacer using these data. and this time extensively documcntt·•I
credible insu.nocs of apparent mismanagement. misconduct and crimil'.lll wrongdoing by BATf. On
May 10, 1997, I form.Uy compla.ined to the Treasury Oeptttment 1ospcctor General (IG) abo1 11
.
acveraJ specik evem:s. but on Juoc 5, 1997, the IO wrote and told me 1hat rt was dedinio.g h •
investip1.-.nd was referring my complaint to BATF ln an cffoc't to try and preYenl what sur,·I\
"''OUki have been another ooveNP, I contacted the House Commiltee on Govcmmcnt Reform .ii111
Oversight. lo euty Oetobef 1997. the Committee orda-ed the 10 IC>< (I) ind<pendcndy oudit ti•
BATF's 6rcann r.....ntion pnctices; and (2) ...iuate llie BATF"s inunW report. TbeT,_m
Depwb•tia• lnlpec:IOt GmttaJ bas not,. to the best of my ~ dgc. rec reported iu 6ncings. to ti..

H.,....Comminee.

Exhibit A, Pg. 426

..

29
Aldlou8'> tbe BATF ........ rqiort .,._.,,,,,,...... io Sq>c...- 1997, I wu umhle to obcaia a copy
until 1otc J.-y 199$. n.. ...W.s - • no surprise: tbe BAIF oomlJleUly <>«MIOrlled illdf, and
ib rapomes to my llfglsions toe111t0raisepublicsocoerycbewiagto1 new~ ID response to
. . - . - . , . 1 ~dal BATF-.addiog fir-to tbe NFRTR lftc< "°"8....-ed
by !heir owncn with Vllid rqpsu.tion doo-s, BAIF -ai thal IUClt oppor<nt _ . . , , , . , ,
be" duo 10 red T • u oCfcnns. Yee. when I asl:ed NFRTR CUllodiln (loiy N. Shaible io April
1996 whether BATF hod odded firearms to the NFRTR - . . 0 lawful owncn _ . , . i valid
documenu of which BATF had no rCCO<d, be stated: "Yes. I ..,...,. thal's hoppenod." Thus, it
appears llkdy thal 11 least >OmC people have boeft UrfU$lly J>rO"""tecl for posses""8 I lawfully
registcrod firearm. for whid BATF lost or des&royed the registration documcncs.
In"' U.ernal 1981 BATP repon I obt.Uned uncle< a Freedom of WOnnati<>n A<:I. "'I.-_ bul which
BATF apparendy roJcuod to me by mistake (1 hadn't known it existed, and had not rcqueatcd it). a
~BATF employoe stated lha1 some fireonns W<te registered to -~ who would 11- ha. .
been 112 ye1t1 olcl-and that DATF knew tbey were dead I BATF'1 data show that of 14,259 NFA
fueatms resi"ered from 1934 10 1939, 11,175 (78%) ""' &till owned by the aamo person .,.
organization who registered or obtained them that year. A pertOO who wu 21 years o~ in 1939
would be 10 yean old io 1998. hit safe to COllCble tha1
oCthem.,. now dead?

"'°"

Ofd>c Sl,904 lir<or1Dl rq;,ttted ~ lhe 1968-. 50.314 (SS%) are still owned by !he_
people. 5..-wllo was 21i->oldio1968 would be ogcd SI io 1998, a 6S-yew-old would
loday be 95. Al .... _,. ofthese people ore dead. Yee. BAil - · io ils inccnal rqiort lho!
..... m..-awJ be ,..;.rttec1 to deed people, bul BAil bu no knowledge oCtilis.

Mr. Olainnan. oC tbe SS,904 . _ , , rqp$Uarloo lOnm baa a aocial -'"'JI ...- 00 it; i<
was a roquRd dllla 6dd for the oegistiaDoo to be
It woold talce no more !hon a few hours
to dctamnc ll1>m the Social S=rity DeSlh Index exaclly bow many ofthcoo Sa,904 NFA &r.ums
arc ,...paered to poople who are deod. Whal does this say about tbe abWty oftbc Oowr...- to

""°""ed.

keep lrld< of firearms it believes an: dangttOUS7

And how pcrvulwi it this prob1cm? Well,. aooordin8 to the mo• roocn1 data BATF hu ~blicly
rcleucd (u ofDocconber 31, 1996), exactly 108,5~ penons havc ncvcr legally transf=ed tbe
owncr.rup of nw:tUnqpms. bazoobs, sawed-off~ band grcnadct, anti-W1k rillcs, and limilat
devices that they registered°' acquired by transfer lo or before 1971. lnum.ich u the'NFA was
enacted in l 934, this CO«esponds to ownership periods of from 27 to 64 yeu1. Someone who
resjSlered an NFA firoann11age65 m1934(thcsp«i6c~ citedbytheBATF ~in
the 19*1 iritcnW report) would have been 112 yewsokl in 1911 ; in 1998, aucb a pcnonwould be
129 ye111 old. Is this -od .,.,,._,. oo lhe part oCtbc BATF7 I tllink not.
I oouJ4 80 Oft II some leo@lh about these and similu ~ and have - - S tbtm fo< 1he
attacbmcnlS to my 1arimony, but feel that I ...,., ddcu$I two more licu.Wom bcR. One aCtbcm

poteotialty - · ... pcr-9y; 1he -

is vatid and -

evidence oCbodl

..,..,,.,. by BATF to_.... to try and_,,, up emn io 1he NFRTR.

P<'FY and ..

Exhibit A, Pg. 427

30
After my April 1996 tcstUnony, through a ..n.. of Freedom of Information Act requests, I
discovered that four firearms in my persona.I oollection were apparendy registered or transferred
illeplly by the BATF years before I lawfully acqlrired them. All of these 6reorms are smoolh bore
H.lRHaridy-0.ms, and bear serial oumbcn 5592, 29691, 5-0885, and 53637. Two of them""' newin-box. .,. quiu - · · and came liom the H.lR Factt><y C<>llectioo. I document«! tills in my
April 1997 testimony. As t h e - t o my testimony today document, on January 31, 1998,
I formally requested a $1atement 1iom Nereida W. Levine, Oiefofthe National Firearms Act Branch,
asking ifthe BAn: plans to seize these finarms as contraband, and undertake a foffeiture action. In
1lettesdatedM.vdi3, 1998, OiicfLmoe confirmed »illt I ahudy knew-ftamely, tlw the NFRTR
shows that the tirearms are leplly registesed to me, a question that I did not ask
The question Chief L<Mne left unansw<red, and which I re-asked in an immediotc followup letter
dated March 6, 1993, is wh«hcr thc BATF oomidcrs these specific 6reorms as subject to ,.;,.,,. and
forfeiture. Jhave received no respoase to this letter to date, and I don't believe it i$ because Chief
Lcvioe is unable to read. l think I have received no response because I have plaood BATF between
a rod: aod a bard pJaoe~ namely, if BATF declatts the firearms are contraband bccau.sc BATF rtsclf
illegally rtgi.stcred or tttnsfened them. that means the BATF has admitted at least some of what 1
have aUesed, which is tlw the aocuracy and integrity of the NFRTR has been compromised.

I hn1clydo not know if the BATF will tnO\'C to seize. tbese firearms after all tbis blows over. t_f so,
111 have documents to show to the U.S. Attorney who prosecutes that action, demonstrating that I
have~ 1ttempted to deol with this mattes as a TCSpOOSible citi= by onntaeting the BATF,
u wdl as my elected ~in the Ccngress. Mr. Chairman. Members of the Subeomminee,
ayou legally bougl1t somc:ding in. tnnslction that the~ approved years ago, how would
you fed about having your Government forcibly invade your home. sftze those it~ and go to
Fedesal Coort to pennanemly oake thesn awwy from you without 1ny oompematioo? Thal is a teosion
that I have lived with for more-than a year now, and I can tell you that I don't like i1. Wou)d you?

The secx>Od situa6oo is evidence ofbo(b perjury and an attempt to continue to OOYCr up errors in the
NFRTR. SpcciJieally, Mr. ShaiDletold a complet<ly tlillCrent story in the 1997 BATF internal tepott
thin he did und« oath in fedesal court. In the 1997 imemal BATF repo<t, Mr. Schaible stated """"'
oath that the registration documents I Wat referrins to in my complaint were thougb1 to have been
destroytd some 8 yea.rs a&9 by contract cmpl~ not BATF employees. Yet, my question
specilically rd<md to the May 21, 1996, testimony, whi<:h Mr. Schaible gave unda-Olth in Fcdenl
0Mt, tl-1 Bfmed spocjfjql!y tp the BAlf tmplnym that Mc Sf.haiMc 3181cd mild have d(;SlmyM
thcdoo'annm 1924 whk:hiscoosiderably Wer lha.nthc: '986-37 riwfwm BATF cit~ I ha\'e
repeatedly gone OYCt each """11 of each document, and I con find no obvious explanatioo for this
blatalt diJaepancy. I undenoand lhlt David N. Montague, Esq., a private attorney reprcscoting the
defendant in this case, filed a Writ of Habeas Corpus oo March 25, 1998, in fedaol coun regarding
the siogte outstanding conviction based, in pan., on the d~c teSlimony of Mt. Schaible. It
seems to me as though the BAlF is continuing to try and cover all ofthis u.p.

6

Exhibit A, Pg. 428

31

-H. ·-Act . , ;, ,

lo ,. 111idc ..wed~ Perjuly," plilUlled iD the Ocl- 1996 iulle of Vc>i« jtr llw
/)f;lnm, . . Jdlnes DI, Esq.. -ed -"tho 0.-/ tape deolty aculpo'O')' and
dwty ""'*'"'ed""""' IOd ;., ~""""""I·" He
'eded·
Al tbe ~ Uniied Stares Attome)'I, Uoited Stales Ditoric! Judtles. and
other '*der1f and locll llw eel.,.ceuxn afticilk se ~ 1cam wtw moll dc:f"cnse la'W'J"R
and JWI deelcn hlNe known for ycan IOd wbll tho aftcnnodo of Waco and Ruby Ridge
sw1dy illustnted: BATF and ...... lie, di-lo and coYet up on IA

'°

inltiMJonolizcd basis. These .,. ooc abem<ions; they otc an IUlwdonal way of life. Just
who i1 the criminal in these cases?

T-

For the above reuons. and the documented evidence I have praemed in my 1996 and 1997
tcstimomc.., u weU 11 in the setf'~planatory auachmcots to Ibis testimony. I woo~ like to
n:opectfUly ut the Suboomrnittee to consider r<mOVi"8 tile N:fll'IJl &om custody of the Bureau of
Alcol>ol,
and Fi""'""' (BATF). and 10 .,..,.._.iy t<Wian its ftJnction1 to the o..,..,,,_
of Justice. The Oepanmcrlt of Justice is the entity which ICIU&lly conduct• all of the background
clw:cb tl>ot the BATF, IOd other low"''"""..,. tg<OCies. ""'at trial for vioWJono of the law, Ind
has a mucl bctl<r syttem !hon does the BAlF for.....,;,. the_,,..,. and intqrity o f ru:o<ds. In _,.,., the BATF Im destroyed NfllTR records, Md about it, and comimled 10 lie
oboulil.

As,... bow, .... c&cl .... dis )Im'., and the Oq;lwbDUj ofJusdoe ii l I~ Ciudme handjp.m is
~ - - for who ...... 10
~ IO ID~
ri'~ for doim8 mete
.--.1 clloc*L MoYiogtbeNFRTR tiom BATF to tbe Dqwwoflustiot w
tMI BATF
(or its ..............i . . hopcfol of change iD this area) _.id llill ~ U....,.,... to lheoe
records !Or lqpdmole law enforccmeol purpc»es; i.o-, Ibo BATF oould oo ~ illeplly
..........,.., • ...,, thcse reoonh. TheDep-of Jullice_.id bave oo iNdwtional .-oa
to clo oo Ind, indocd, woold liltdy be mo<e objeclM about maintainin& their aooJnlO)' and intqrity.
In my~ by ils po11 actiom and continDng effi>n• at uyina to..,_ up it• wr~ the
BATF has forfated any righl to custody ofthe NFRTR.
Whal 1 wu • 11udcnt ;. the Bra lnttfiovemmental Rdations c1u. that the ..... great. o.m.ra c.
Jordan taugjlt iD 1979 at the Lyndon B. Johnson School of Public Alfiln II the Uoivtflity ofT11 Austin, ahc. IOki UI:

"Government by the people is not a spectator sport."

7

Exhibit A, Pg. 429
47.740 98 . 2

32

P>opoood RemoYll ol'the Natiooll Ynanm ~and 1"rwltftr 11-.t
e-the CWtody oft h e - oC Akobo1, Tobocco and y,,_
and iu P>opoood R-.noo to the~ o( .JwUce
APPENDIX AND TI:STIMONlAL EXIDllITS

by
£ric M. Latson'

SubcomnDltaooT,..._,.,Posul s.r.uand Gcmnl Qo.., .., _
of the
Ccmmittcc OD Approi>riatioos
HouseoC~es

Office BWlclina
W&Sbiagtoa, D.C.

8-3-07 Rayburn -

April 3, 1998

1
.E.ric M. l.arlon iJ a Contributina Edi1or to the Official R.. L Wil.JOn Pri« Cflt.k# to G11n
C<>l1«'111/1. ihe Blw Book of Gun Ya/ws, ihe Slalrdcrd ~ofF-.... 1he ()ffekd l'n«
Gwidr 10 Antlqw andAfcdlm F",,.,,,..,... and bas been a Life~ ol' ihe Narional Rille
A>soc:ialion
1968. His .....,... bas ~ in " " Gtm /lq>art. CtDA
Gun .Jawmo/, Mat:/tlJw Gwn N...., c;..,., /Uratmt.d, s-.Jl Anou · Tit< Gun .lolmtal, and
H&R Hand)>-Otm: A Podlt 0..ldr to 71tdr
he is ..ii- ol Y"""°""' oftJw
ldmli~. Ajoonoli11 andclemograpl>erbyu.ining.he..-cd wilhhooonm 197411-om
ihe U - , . olT- at Aut<ill,
aloo eamcd a Ph.D. and mu1.n degrees.

"'A.-ica ......

_,,Ben
,.._he

Exhibit A, Pg. 430

33

u1 w..,..1m; .._
~ Al-99712

2119191

My , _ i1 Noel N"'°liUi. I n aretiml piblic ocbool 1o yoo .,.,....i;. II» Mi"" ofmy GorD8l MP-<40, by BA'Il', ia

of 21 rn. I n writing

1993.

I Ac..nly lt1med lhll my cue ww iacluded ia formal teitimoay 1111 April btfbre lhe
HOUie Sub®mmlu.. oo Treuury, Pootal Servioe 111d Oeoenl OoV...Apptoprilli001. 11110 ditcovered lhll it was l!P"cifically brouebl lo tho -.mioa of Ml.
Cnl Serpa oftbe Treuury~ Office oflalpector o.-nJ 1. . Oclob«,

......,.,.. .. bao....

t

-ied ....

n.nfon I witl IOtp ioto Ibo leplities Rpdiilg my cw llon. I boliow tbll d>I &ell
will 1pHkfor-lwa. I timplywoald ookfcr,_-i.1p · - - • I BA'Il'lo
.-:amyMP-40.
All yoo lmow, I ~ BA'Il' fer Ibo .-.. of'""! MP-40 (..n.i 4212) lboy rebed lo
. - . ii lo D - 1 t.d vo'-ily- it lo lbem for revi- of. . firesm IDd it' •
~oo-wootc (F- 3). 1 - - lo tbom-lboyqoom-d>I &cttbll
lbe MP-40 - 1 Uy...pi.r.d.1\oir1-.ury ~ doUnniiiod ... my
...
p- wool< - DO( a !Grpry,
otill woald DO(,-.. my lirosm or ocbowle<lp ito
,..._;oo, lbeyt.d DO rec«dofil ialbeir dD-. ID 1994, _ _ _.....
oflitisllioo, I <hppocl ... mil opimt lbe odvice ofmy . . -ila. '111i1 my
wift llld I were &d>I ofBA'Il' repria11, the oeizlre of my 1izol>le firesm collectioo,
be"'8 " bloctc ballecf' iii fillla'O ......a- re<plirilla BA'Il' _.,va1 IDd blq "-'-<I by
· -"inepectiOlll". '!\ere - oub-al eviclcoct lhll lllilp woald likely occur
b•ed oo olher iacideall wilh whic:li lwu &mili.'. I alto had to ccmiclerlhll lhe coel of
•Clllllouia8 111;,.tioo spiaol BA'I1'
goiog lo fir .....d lho val11t ofthe fll'01n11
involved. I ww very apMI -having lo~ lhi1 • - • llio limo. II boo- wono
l k 11....d lhll BA'Il' _ , . , _ t.d delbor<d -,...;-;oa lo avoid
bviDg to won cm IDd lhll lbeir - a 3°'4> """'nio. I feel lhll lhia
tlll:in '8cidtal WW zm C
j wl cavalier at 8ATF't psi.

yet..,.

w•

_.,Idled

Sillcenly,

;.

__,,,,;

/--.:'""'~

..

NOllN"'°lilU

a.n- Orrill a Rlidl c....m- oo lbe Judicisy

~ Jiml:Allbl - - - oo T..._,., Pootol s.rn.. llld Omoral O o -

Exhibit A, Pg. 431

34
UflTED STATES 018'1'1UCT ~
fOR 1'HE DIS'!RlCT OF ALA$D. A'l FAJ.:RBAHJCI
NO&L & • HAPOLILLJ,

P1aintiff,

v.
UNtTIO S'l'ATES OF ȣRICA,

)
)
)
)

)
)
)
)

O.t'endant.

)

Cxv:IL ACTION NO.
F1'3-00S7 (JICll)
CCHPIAINT roR RETURN
OF PROPERTY

Plain.tit'f, Noel £. Napolilli, by under•19ned oounael, bring•
th• t'ollowino complaint and for hi• cau•e ot' action alleg•• and
complain• . . follow•:
1. Thie pl..UnUt't', ~ E. Napolil1i, ia a natural individual.
and an ackalt citizen ot' the Seate of Al.U.. and th9 UM.tad stat.ea
ot' America, reaidin9 at 251 N.apolilli i.n. , hirbanta, Ala.ab
99712, vi.thin the jurlecb.ctioo of thia court.
2.
~re.ion

ni. det'endant, united State• oL America , ia the national
and ..y be tound within the ju.rladict.ion of' thi• Court.

). 'ftda• i .a an action. for the return of' pel'90ft&l property of
the pJ.aintitt ~ly and illega1ly oaized tr.a the pJ.ai.ntitt by
th• unit.ct Ste.t•• and wrongfully and ill99ally vithh•ld by the
United lte.te• t'rcn the plaintitt'. The event• and aota oomplained
of bere.1.n ooour~ in the Stat. of Alaaka and there.fore vi thin the
juriadiation of thia court.

4.

Th• Court ha• juriediction

o~r

th• partie• to and the

au.bj*Ct matter or this action by virtue of th• proviaiona of

Sect.ion• 1331, 1346(a)(2), 1356, 2201 and 2413 of Title 28 of the
United ltatea COde; sections 5872 (b) and 7323 of th• Internal
Revenue Code of 1986, Title 26 of the United Stat•• COidi9; section
92• (d) (1) of Title 18 o~ tho onit4d stat.ea Cede and rectenl Ru.le o~
criainal Procedure .. 1 (•); and the court •• equ.i u.b.1• and a.nolll&loua
:)uri.clicUon .

5. Venue ia proper in tlda j\adicial dietrict by virtue of
the proviaion. of Sectioo• 1391 (b) and 1402 Ca) (1) of Title 28 of
the UIUtect Stat.es Code.

Exhibit A, Pg. 432

35
' · The pl&intitt, Noel E. Napolil.ll, ie, and at all U-•
pert.inent to tM• COlllplaint -.., lioenMd by the 8areeu ol Alcohol ,
TobeOCIO and Fi~ of the United Stat.a o.p..ra.nt of the
Trea.eu.ry (hereafter •BA.1'F"') , an agency wKI 1-M~ta.lit:y of the
datend&nt Unit.ct su.taa of Mnerica, . . a d6ale.r in t'irea.ra8, doing
bua.ine•• •• H~ ~t, a sole proprietor9hi,p. Be ia, and at all
pertinent to this oc:mplaint .,.., a M!'F Claaa :! Special
OOOUpati.onal 'f'u:;pllyer, that U , one who aay eD-9-0• in the purchaae
and aal• ot' machin.egu.na and oth•r t'ir9a.DM •• de.tined by a.et.ion
5845 of th• National Fire&r1U Act ot 193,., ••
26 o.s.c.
a.ct.ion 5845, Internal Revenue Code of' 1986.

ti-•

•••oded,

,
7. On or -.bout July 13, 1985, th• plaintiff' puroha•ed f rom
a tedenlly licenHd Fairbank•, Alaeka, t'ireanu dealer a f.S.ra.lly

re.giatered HP- 40 ...,chinegun, caliber 9 ndllilMlt..r, a.rial

n~r

4212 (herNi.ft.ar "the f'i~"') ... . a world war tl era Genaan fllilit.a.ry
. .chJ.negun cc::nMC>nly but aiatakenl.y referred to •• a "Schmeia--.r."
8. on or about AUguat 26, 1985, th• Natiooa.l Pirea.rme Act
Branch of' BATF in waahi..n.gtoo, O.C., t.hrov;h ita authorized
repree.ntative Gary SChaible, a pproved the tranefer of the t'irean11
trca the aeller to the pl.aiatilt b'J' P*:Ution o.t the required &MF
Fora 3, "Aipplicatioo for TaK.-~t Trane.fer ot l'i.reia..i::m and
"-9i•U.tion. t.o Special (Occupati.ooal) ~r. •

9., Follovinq the official re¢-•trati.on and tnn.ter approval
de•cribed in peragraph 8 , above , plaintiff' toot Po• . .••ion of the
f irearm and remained in peaoat'Ul., uninte.rrupt.d .net lawful
poa . .••ion ot' it until on or aboot F.t:.ruary 3, 19n. Plaintitt ha.a
re.ained the eol• ~ lawt'ul ~r ot' the tireara t'roa JU,ly 13,
1985, through the date ot' tiling of' thi• ooaiplaint.

10. Jn September of 1991, BA.TF oond.uoted a t'irearnr.a ckta.l•r
oon1)lianoe i ntpection o f the plaintiff'• bu•in••• · '?'he inapection
waa aaciataotory, ..,ith the exceptio n that pla intitt had in h.ie
po•••••ion tour National Firearms Act tir•&Dl9 (including ~ MP-40
which ia th• aubject ot thi• action) which the BA.Tl' in a~tor• e
inventory did not •how •• bainq regiat•r9Ci to the pla.intif't.
11.

BATF vaa ulti.mately able to det..naine t.hat it.a reco.rd.e:

W9.re incorrect •• to three of the four queationed f'ir.anu, and
that
~ we.re i.n tact lawfully nt91•ear.d to ~ properly
in the poaa. . a ion ~ the p1.aintitt. 8Att vaa apparentl.y unable to
<MtenUne Crea i t.e own rec::orda: boveve.r that the MP-tO .,... lavtully
r99i•tered to the ~nt.itt (or to a.oyone).

tbo••

12.
In "-' t•r 1991, pla.inU.tt va.e reqgeated by the
National Plre&nN Act Bran.eh of BATF' 1-n Wuhinqton, D.C., to

Exhibit A, Pg. 433

36
provide it vi th a COP.I ot' hia Fona 3 tran•t•r and re,,iet.ration ot
the t'ire.u:a and the pla.i.ftti.Lf did eo.
U.

8U'F PbDM 3 a.ra required by Trea.9ury ReQulat.lone to be

eubai tted

in cNplicate orig:iaal.
When th• t.ran•ter and
regiatrat.ion i• app o•ed,. Clr'li9 original Fo.na 3 rwin• r i th B.\TF . .
part of t:h• National f'i-~ Reg:iatration and Tranate.r Record (26
u.s.c. eection 5841(a.)) and the eeoond original i• returned to the
tranateror tor tranmaiesion with the t'iroarm to th• tr.nat'•n..
Th• tranafe~ ot' a National Firea:t1118 Mt tir9artli inuat retain
poaeeeeion of th4' dl.Jpl.icat. original Fona 3 eo lonq a• the tiraann
exiata and i• ~ilt.~ to hi.in/her.
14.
Contront.d with • copy ot' an approved transter and
r9'Ji•trat.ion tom Which it apparently could not find in ite own
recorct., BA.Tl' toot the poaition that the Form 3 rm.aat be a forgery.
BA.TF then ct.unded the original fo.rm f'rcca the plaintiff with the
el(pr.eeed intention of eubldtting it to a BATF laboratory an.alya.i•.
Plaintiff provided BM'P with hie ori9.inal i'ora 3 •• well ._. the

firearm it.eel!'.
15. MR'• labontory exam.2.nation detenained ~t the Fora
3 wa.- not alt.e.red or febricated.
~ neoaaaary i.llplication of
BA.tt•• laboratory ex.dnation r.eult 1 and or ite oou.re• ot
behavior / i• that Mft" ha9 l.o.t or deetro')'ed i U own reoorde ot the
ti~· • p.roVenanoe vhich BAn is mande.ted by 26 U.8.C. •.ct.ion
5841(•) to -aintain.

1,. BA.TP'• loat or destroyed reoord.9 would hav. con•i•ted
unct.r the National Pirea.rraa Act ot one of the following:
Fi~•rm"

(A)
A Fonn 1, ..~li~tion to Make and ~iater a
(non-OOfllllercial manufacture by an individual); or

(8)

A Form 2, "Notice of l!'ireanne Manut'actured or

Itrported" (manufaoture by a l icena.ed manu.faotur:-er or iqx>rtation by
a lioeneed importer); or

(C) A Form 6 "Application and Pe.rmit tor nriportation
ot Firearne, .Mnluni.tion and Implement• ot War (not for uae by
1

w.n.ber• o~ the united State• .vm.d. Force•)"
coaoercial importer) ; or

(ilnportation by a

(D)
A Form 6, Part IJ, "Application and hrait for
lllportat.ion of Pi.reanu, Aamm.ition and J-.:>l-.nta ot War (tor uee
by NllDber• ot the United State-a Ar'llled Foroae) (i.llpor:ut.ion by a

rw>n-ommerc.1al, U.8. ••rvice~ i.ap)rter); or

Exhibit A, Pg. 434

37

r1N&1W11e

(.E)
Acquind

Mto~t

A Font 10, •>.ppucaUon

bv Certain

~tal

tor

~i•t.rat.ion

&ntiti••·

{by •

ot
lav

or -.11-1 t;ary organ.iz.atioa) ; or

(P')
An IRS tATFl Foz:a ••67 , •Aeg.iet.rat.ion o~ Carta.in
durincJ November 196&•
<reoietration of' e.xi•t.1.no but
Wtnigi•tered tirea.m.s during a Udrt:v-day _._..ty period in 1968);
u
w.11 •• 8.(99 oomb.lnation of' the tollowinv tor.a f'or -.ch
ra.~

• uooee eive regietration and transfer:
(C) A S'om 3, "'Application tor Tax-Ex.-pt Tranete.r of
Fi.Hana and Regietration to Sptteia.l (OOOUpational) 'l'a.><P4l~r,," (a
tax-~t tranafer between speci. l. occupational taxpayer•, 1.e. ,
a
i~rt.re, d . .lera and manufacturere); and/or
(B)

A Form. 4 ,

•Application

tor

hX Paid Tranaf'er

andP.eqiet.ration of Fi~," (a tax-pa.id t.ranafer to an individual

vho la not an illl)Ortar,

iN.nuCac:tu~

o.r dealer); end/or

(l) A Fo.m 5, •AA:>lication tor Tax t._..,t Tra.naf•r ~
lteg'iatration of a Fireara,• (a transfer from a cl•: 1 nt'• eat.a.tee
or a 1.aw -.f~t oroani.z.atiooa). In ·~, che lli.aa.inq .8ATP
reoord.9 wou.ld a.how the oomplete hiato.ry oL the ti~ aince ite
-.nu..facture or importation into the un.itad Stat.ea.
17 .
Ubdeternd by i t.e itwlbil i ey to •• tabl.iab a f'o.rved
r419iatrat.ion or to locate i t . own r911iatration ncorde, MTF
aur:.i tted the fir.ara to a technical ~tion and ooncluded that
th• fir.arm au•t halve, at eome undetenained t1- in the pa•t, by
panon or pi9non.a unkno"fn, been falsely regiet.r9d by th• original
regietrant . . "~u.taetured," a category of reoi•t.ration whereby
a firea.ra pnviouely render.cl 1-oa.lly inoperable i • n•tor9d to
operating condition and r.giet.~ or rere.giet.ared •• an ~·
National FirearMe Act firearm.
18.
BATE' baa no evidence tJi. tira&rl\ in queation was
ori9inally reqietered . . "remanufaetured," or that it • • otherwi.ae
reqiet.ered i ~ operly or un.lawf'Ul.1y.. and i U det&rm.nat.t.on to that
effect 1• arbi tr.ry, caprieioua and w.i t:hout fou.nd9tion in f'act or
law.
Moreov.r, BATi' hae loet or de•t.roy9d the oriqiaal
reiQ'ietraUon recorda, which i t ie -.ndat.ci by lav t.o retain and
pneerve, and vbich vou.ld eatabllah b9yond any q\)Nltion bow the
.f~ V9.e o.rioinally registered.

19. Purcha..,.. of ~•tered National 1'1~ Act f'ireaaae,
eueh u
the plaintiff, have no legal or practical -an. of
dete.mininrg the pedigree of a reqi.etered .fi..reazm and are totally at
th• . .rcy of BATF'• approval of the b:aluife.r -wlicatica and

Exhibit A, Pg. 435

38
reogietrat.ion CBATI' Vona 3, • or 5) by vh.ich tlw pu.rcb.aaere obtain
authority to ~ivei and
th• f'i~na.
BA.TF re.tu.a. . to
diaclo•e to •ubeequ41nt r.Qiet.rant• th• prior r90i•tration and
tranet'er t'ormi pertalnino to any National Fi~~ Act t'ire&rlll,
citing the taxpayer privacy provi•ione oL the lnt.rnal Revenue

J)O•••••

Code,

26

u.s.c . ..ction

6103.

Thu•, pu..rclwu"era/tran..t'~ of'

National Pirear.1 Act tirearma are tot.ally at the -rev of' M!'F'•
oompec.noe and dili9enoe, or lack thereof', in obta.inin9 valid and
pumanent poe. . . • ion of' a val.idly reqietiered f'irea.na, and in be.inq
~. to •~tly ef't'ect a 199al t..raM..ter oL •uch ti.reu:a.
By
tbalr very nature, legally Netri.cted and of'c:.n ot hiatorical
aigni.ticanoa, National Pi~ Act fi_~ ordin.ar:ily are valued
at ~•and.a of' dollars . .ch.
20. BA..!'F La barred b.A' i t . own vio1ation.(•) of' l.av in losing
or de•troyino NqW.Nd reoont. rrcm challenging the oriqi.nal

t"99i•t.ration of' pla.i.ntif't''a tire.ant and trca drawing a ai.ngle
"'9qativ. inte.rence of' improper ~lat.rat.ion f'tOM .-v.ral poeaibl•
typee of r.giatration, all othiera of vh.ich "OU.ld be lavt"u.1 w1d

proper.

••topped

21.
81\U i a
rrca challenging the oriq.inal.
regiatrat.ion of pl&tntif'f'a tireana by virtue of' the approval.a oL
the tirearwn.'a regiatrtition and tranefer to th• plaintiff, and to
pl-.inUft'• P~•eor ovner(e) and r~i •t.ran t( e).
22. I.n or about March 199·2 M.TF advi•ed the p.laintitf that
i t vae retueino to return th• tirea.na and that 8Aff intended to
adminietratively for-te.it the tireann aa "contraband ...
23.
0.epite 1'9paated d....._nda by th• plaintitt, by oounael
tor plaintiff, and by ...C.n ~ Ala•ka'• oonore.e.•ional deleqation,
MT&' ha• refuHd to return the ti~. MTF'a r.f'u•al conetitutea
an illegal aeiz.ure of the firearm -.nd a taking of plai.ntiff'•
property without due prooeaa of law.

2•. 1'he Uni.ted State• i a mandated by 1-aw to ~ any
"action or p.rooeedi.n; tor the forfeiture of fireamie ..• vi thin one
hund.red and twenty day• of auoh aeizure...
18 u.s.c. ..ction
924 (d) (1) . Th• retention of the firearm by the United Stat.a and
ita failure to aaa..enoe auch a forfeiture ac~on or proceeding i •
a denial of m. prooeaa of l aw and an unconati. tut.ion.al takinq ot
plaintitf•• property. 'l'h9 United It.at.ea hae lo•t any jurisdiction
over the tireana which i t ai.Q'ht oth•rwiae have had.

Exhibit A, Pg. 436

39
VKPt&l'cmtl, the p1ainti.ff' reque:ste the tollovi.ng rel-ie.f:
A declar9tory judglleo.t that Mn'• --.lwre ~ the tir9&1a
to return i t are u::bitrary, c.priclou• and

l.

ite retu--1
unlavn.J. .

and

2. A detuaine.tion that the un.it.-d State. i .e . . topped bV' ita
oonduot tram dete.rainift9 that the tireaza i •
not lawt'ul.ly
te9i•tered and properly in t:.hla po•••••ion ot the plaintitf.

). A 6-terlllination that the United Stata• h.ae violated the
proviaiona ot th4t Firearm OWnera' Protection Act ot 1986, 18 U.S.C.
••ct.ion 924 Cd.) Cl>, •nd i• barrod trcm t'o.r:feitino tM firearm.
4.

Ari order raqu.irinq ttMt un.1 ted •tat.ea to 1....cll•tely

return the t'ireara to t'M plaintitt.
5.
~•onabl•

An award of' the plainti.f't' • • coet•, ellp&n••• and
atto.rney tee• incurred in proaecgU"9 thia act.ion.

' · A judgilllient tor auch oU...r and turther Nli-1' a. i • ju.at
and P~·

.JAMES B. JSFl'Rlla, Ill
3019 Lak• Foreat Drive
Greensboro, North C.rolina 27408
Telephone: [phone]

LYNN E • U::VENQCX)D

Downea, MacDonald '

X..V.n90Qd

1ooe 16th AVW'lu., auite 200
Fairbank.a, Al. .ka 19101

Telephone: [phone]
Counael tor Plaintiff

Exhibit A, Pg. 437

40

Institutional
Perjury
0

n October 18, 1995. Thomas A. Busey, then

Olier or the National Fuearms A<:t Bnncb or lhc

Bureau or Alcohol, Tobac:<:o and FltUtlDs (berufter
"BATF") made a videJ>taped uaining p<Ueniation lO

llft- I• quctcion .,.. fomfld (ot WU
lo.lid - . . . . . . di,,.,__ ~
flM lhe ,..... . . . . ~t M
.............. of plO'rinc the~

,.. .. -., ...........

~.,.

Cllftil'M4 . , , - - offldal ~

o.,..,,.._ -'

ol • ~ wrinca
........ ., . . - . d a .1 nis ii. I
critiRJ ...... ol
,.,, ............ ._.,, ocamd

IM,..._.•

uo ~Mi 19" . _ (JftfwuWr

BATI' Headq\wlcn pcnonnel during a roU calJ

tninlliJ

Ailc:lllYwl9").
. . . , btpl ..... call~

.,.. &bow"4fi.. tb¥ ~fin. ud

session. '"Roll call training.. is weekly or periodic in-

house crain1ng for BATF officials - a routine show-and·

tell whereby bureaucrats learn about each other's duties

aod functions..
B11MJ'• N•doMt Pltunnt Ml 8fucll dniN*"' ec NadoMl Ftmmt. Aa

oe 1934.' lk iaaadoo . i ,...._.,
5bon'4wrdled

.c:-. IO'Jdllina

~ til•ll<*t.

Met ... tMcpnl. ~¥$ dc'liccf. cc. .... Clflll''-Y "'

NFA lk..cti Oilct • ...,. ""• 9c otflclal CIMIOdi• ol IM tr3liooMI n....,..
ltaistm....... Trtuf., bcOtd (bmatwr "tf.f'MtTR-, ......... '7 2,
U.S.C. MAI.

•-T• ,,._._..... - _,,.... ..
........ 1'f'PU:Tl...., ....

...-&. ~ ... ~ · ..

_...~

....mc:..--

.. ~~pujM ............. ~ ..... - - . .
......,..,. . Hf'U:'ft.

Ewq ~ _. &orfrtt.n 1Cboc tin.pl b)' «be Udnt s.... _.
. . . . . •.......,. ~ h'FA 5n:iiw ~ 1CJl:i-r _.. ...

'7 1 '-1)"~ ~of it. NFlta:TR ct.. .L~ 1 dili.Je'* .-di ol tie

effM:ial , _ . of wllidlo 1icMt M ~ ao ~of 1bt. ~GI tlx

28

fOIU • VOL.U

• O. I

MUI ....-bil~ h to Mab lttUnle
Mttlff ... IO ....... t1CCWKY of the
NPITl,. •." MoftMl•ls httr 8u.se7
..,.. iht uionld!lillf: a1a1e- dust
·- wi.c.. we 1t111ify in coun. we
liltlllfy llw die dlta hue ii 100 puccnt KClll'lllt. ni11· 1 wh• I - icsti•
fy to, lllld wt will al'WlfS ICMify to
th•t. A• you probably wdl tnow,
thllt 111&)' not be too pcr1:ent tl'\lt.
811wy dw• tot• on few .w:vrral mill•
111.. 4Mcribl.. di. 'JP" of smn -.t.idl

crc.t' l•tc~ th.I HFlt.tTll ••41 .., .
,..... 1\16 4MnMnaldlrdleioa:
So tlw: l •fH•aLiO• Otl die
wtlfOU
u~ i• die
. ... INH lll.u IO .., I 00 pc:ru..

n •.ooe
lMir
.-... uu1.w,_......__

....,,. .. ~ .... "'~·'*

~-.di). tMc. ....

-

'°

. . . - ·· . . ~ drieft
IUbfy, du.I - att 100 pe«UI

H ow bolllll w111 the tnor ran i• dlC
t'tfaA.Tltl • ..,.. . ... wllal I fi111 t;a,19f; i:n 1 rut

O(lfU R 16

Exhibit A, Pg. 438

..., _____ ...._.,_,,.,pccdl,._.
,..(ll9 ........... wanc:y °'* HRft.cOIW 1........................ ....., .......... ~
... 11,.., ...
.........,,._ , ,....,..,..._.......... ,.._)•l'tfA.,_.
llATP
,.,..,.t...s-_,c:tllriql:dW..a
_o....,_._.. ........
_..,
~- i9 .. .wt.11--= • .-... 8ATF •*HN.*'T'a.- ~---- ~F"'·
....
.,..... ........ fila . . . . . . . . Leas.- Slid !lie
., , o: ..,., .. w ...........
..
....... .,........
...uTFom.. _.._ .. ,_....,."",..,_..,m...-..I ~

,_·,49·.50~
~.-.

................................ _ .
1

l -...,,......._11..-KFA,,.__...._~

~----llATF.ed*•&ATF....
o.c..~.....,..,

'Nldedcbirwwkn-...e-•lt~cd••

.~

_....u,,... ....... ,_...

(ud SUR)~~
'911111111dJ . . . . . . . . . ."" .... - _,-ofol5cl.I
,_...... _ . Ill or*r 10 te.cl , . _ . - - . dlizais 10
,n- 8lldllcw . . . . . Ille• ot tile1r pqieny. Jet who is die

._.cu.' '°' .--,_

m ml... ln
Al
IOO 1H'U.cn
BATP officials IO
1~1L. 'l\(1in1 o.i licit from •wn.I 8ATF orfldah (there
- ll0•1til mtn .cl women h• aowrnmient, enn ia BATf). l
~I)' tikd I f'l'Mcloe ol lnfonri111ic. Alli' di:lillOd pn·
tiMIJ diheribial \Ill 811M)' .... 'The: finl rtllelion was P"dicWM. AfW ......... ihe iflc<r".:miuci"I t119'. a.\Tf oClidlilt ................ ..,. coald pl ••., widl ~
ii. ww ....
of . . . . . ,..,...., ...w lidft olill
.....W ..,.._ Or ....... • . . oftiNl ...,_,

.w....

• • - - ....... . . . , "'""'..., . . . . . . .

"""'°"'

,......._...,...,,..,Olillli*t .... _... -.. .. ...-..._.,., t
...._.. _..,.I ...........
-we:tc •

..................

•N• •-'••

Att.t

~"

aM frei•S • 1~

• lllli••rc•

....... a .....m,t., . . '-c)' .... WM

.-•-•Fdnwf)I..... Tiic~flJ.mcc •
. . . .,... __,.. . . llMJ'
... ddfty
~

~

.....w- ..,.

k~ . . . . . . . . . . . , . - . . ,_. ...... ~
~ prOlhtd NFA Bttlldl ,.._,_ spetblia 0.,.
SdMible • talitf • ~ el ... N'...-rl lbal Ille IO""
emmmc'• ofrlcl•I ~did not 1tiow MY 1'0ided .,_m,
andtheftfort Le.sun ... • Hk1lll poNe6lion olthef!IM.t
ln C'UC'RC• Sdlllbl• 1uYl'yl~ llMt "'We cu•t find iaa
offic:W record 1111(1
1ht Oef1ndMI is pi.lty.'" WhM
- nOW bow .. 11111 Sc~I• all(Mllid h1¥9 teMiflled dlat "W1
1
cu•t (iaid Wf 41111' ftcotdil - tYtn when - tnow tbey'n:
lhere- Md f!MfON wt'ft llOI .,_
ii pilly.'"
,... .,........,..•• ftM ..... Mil -...d ...-.. ~ ~

if'..,..,.

..... ~,,.~

~.,...,.,,... --..-.,Md._.

t4PA .,..,....... . . _ _ ..

°'**' '°

.........,.,... • ...t• ..... ,.... . . ...,_.__.

iii,.__

"°' .....-..

...,.,,.,_- ,... ._....... ftM ...._
ffll'.
...,..
T,...,..,.,_ ,_ . . . • . . ~ii;
... ~
.. r. .. _.,. .. ,,... ...

_,_ ......... Md.

t•CIJ' •fc•M law)'~ llMil _...IM ....._..,.. ..._ .W,... ,.._ 6k lftw AM ttl
s.-.c.-t·• •"'...._ • ~ "· ,,..,...,_ m ...,...... . . . . . . .,~.._,.......,....._

...w\al

u.s u. ...............................,,_. .. .,,... .......... .............. ...,... ...

. . . . ~ . . .,.
.......~o1.-.w1*i.,
c•Ue..cc lcM.l•t .. tlWw tltc 4c-t~t·• ~
F'NJdli-....1 ol • ~
tc~ ol t eofl........ _. tClla' ~ Willfat t.ililft
.,.;y ....n.1 c.. . . . . . OOMClllf" tllco-n..
pofculollal ~
cl'I--.

•.IO CM...- ..

'°...,...
The

......... ....,..................... ........
oi llATf"t ..-CS ... • bit
.....,..,... ...... ,.......,.~ ,,....._
6ic ~ Aa.1..,_ u.rr.o 51-. ........,,. UiMd $!:IRS.

nit...._.

Dilw'a Mses. .......... ,..... ........... ..,_,__
oMdlltl
lclM'll .... lllOM . , . . . l;awycn ud
...
Mvre bowl! lot ~ . . Wlwf - ~of
WtcO _ . Ruby Rldp tuRIJ IU11.......: IATF otrbn -2
t&•ll lie, 411.cmbte Ind eowt.r llJI GI' Ill illtflit11don11Jzed
hsll. Thtte •re nOI 1btn'~l<1111: 1"'9y "" •• ia nirurional
cdllc, Ml cqM1iwtlo111il w1y ot II'•· l11M~ Ii . - criminal
i11fltMCMU1

°' '""'.

a-,. ""' . . . ,...,,

*"
**" ......

ONlPMort Md ,..,,. ilnpli.

u 1 e•ery N11kwol ANll'fll& ACI ptOMieuliOn and torfQ!ure
ecl
1 llVlf"I mtlltlOI)'. WOf'M ,..C, 611i$y WM Oftly !be. l,if O( tflC
11
~I· When !ho fot had cl..wtd luM lc.arnc4 cl!t1 tile.
icc.
NFRll.TR lnllOC'llrKf probllflfl l!MI bcl.a lh$ Mjccc Oltn1c.111&1
IATPdltc111"°9ti11Ct11ku1 1979. BATf'1fild Wcn.
,.,i... wldi .!111111• ot -u111L twhdcal .cudic:s. ~
19111i, ~Miii, - - tdllllriac . . ~ The ...)'

___
..

IM11t ........ _... M1....,. .. comcc
.......i11 .. .,...--.. .. ....,..

*"'

......

~ ot

,__ ...................
....,,. tffA ......... a.__,., .. ........_ 11
,...,..~.,

........... _ ....
..... .....,., .........., ........
llt

,.......

IQ

clill

.,.lllillllldS....~-

""TF~

.,. . . . . . . . . pajlry_jllllll

-~·-- la~"'-,VA.,c.W..,ll.
1996. u..dS- ~~Wm,\. ~.&s
rt-vie........ ._,~,...,.,,.~ fi..-e:
~.,.---ca.pa

.... o. u.s- . . ,.....

..,,... ., ............. tc;IPJlt"lf., ...... ws-e. •
Out U l'lFA .....,....,..,' Md~ 1.ATF U"Mder
I

• tl rt • O • ' " '' ' ' u

·

•••tt

29

Exhibit A, Pg. 439

'
I

42

........... ,.......... _...a..-·
__
__ ...,.,..

....,."1
..._,.
...........

&Ml dt.(ttHIMu &. HFA CU« wM
rett1•'4 die • ••.,.,.. ,.c_kq:t f~ tM Uattff St.Md

1

~.,...,ii

__ _

hblk 1..&w ..... 100.10>. IOI Stat. l)JCI

(Ac1

of

c..-"' '""

~ 2l. ltll): ....... ~
Tilk 16......,
n u.s.c. sm1..S112
C'ft*_ D - . . 0. o...I Na fll IJ61),

,._a:..•

»

.....
...an .........
................... ._..........,...,,._..._ I
.... ·---.--.............,~-~ 12..- .
........
~ I

...__ ,.... b..,..n9r

-~........_

(910) lll.40k

)

mi. ~ 16 • ,..ltecl U.S. ~of J..o.:e i.wyu
allCI • tt!WU coloMI 19 CM Mlrinc Cotpt k - . pnc:tic:illg
n,.,,.. kw In 0-lllbofo, NC Ht It a 19S9 sndtalle d Che
U•i•tnhy ot Ktftlij!Cky •eel I 1962 ar-l••te. of die UK
Colkp ol l..&w, Wherl le - tfOll 6di8or of Che JCem.dr.y
Law IO'lltnal, Ht M •• t.NOCI... .,,.,..., Of TCDLA ....:I
ldck IATP iii minlfn11m hip ftprd.)
PM!ic Law No. •74, ct,, 1J7, 41 S4M. 1%>6-1240 (Aet fll

ACf 0( Alril IQ. It~ di,
li1 chlop. 7)6. Mt of Allptl 16, Int (l....i Rt¥~

Cock ti I~), 61A S.. 121·'2t: 1111 ......... b)' hblic
..... Ne.IU.M, Tille II. )DJ, 72SIM. ICZ7. JC21(Aclf11
l. ltM.); • ......, bf f'llllliit ........... 16-

s.--

411. l.J. MS.. I .. (Aa -

' - ' 1, 196- • _ . . . ,

., Nik 1- Ha. 91MI&. Tilk II. 201.11 Sat. lll-'f·
IDS ( A.ct - °"""- Z1. IMI);
.._ w.. ~. s.. IQ' (Aa - Oclllru c.

VL.1'4r.-.pon New• Di¥,}.
7 -Speci•I
Tu.pt)'lft" _.... 26 U.S.C. 5.:>I
,. . into . . o( dlNc ~ 0 . . 111 *-&en a. pol>
seu,. .ell and cnMf'9t Nfl:A "'-'-: OaH II
«S CM. i11 tddldon, .._ra.c.w. Md ~p.,ief dlun: O.U I
imponen n•, l11 MdlllOll eo all IN for.sOi"'J. iJRpOn
AIJ SOTi •tt 1114 NilllllilfM to pot;ttlh Fc*nd
fimnn& Ua:n-. whidl
.U. difl'erm
~ ,,._ .... i.,o.. ... upon - l
. . pttWil. . . . . . . . . . ~ ................ ...
! ttM~ . . . t.c.11 ltuatla,a ... N,tilMftltiM Kite--

°""'*ioNol

!

I
!
i
I

-Udur·

!bf:•.

ihi•••h• 00191 •

............ .....,,.

.

"* .._ ...,..,..........
'°'· s-.1 . .....-.n ..............
•
~"'

a_...,"',.._

- _....,"' ~ t.- Ha. .........
.... 460
ol Mq "· ltM)r.; ......

'"°

100

Ujal Adi~ CM "-"'c e..,d
Ctrtil•d 11'1 Cllfl'INI la• lh10¥9ll flc
T- lur4 of Llf-' S,-b..lior\

~U.....--lp,L¥~

""'-ud

.... Mlio'I

~ea..- 2$-2~""'

MTF,._J_ . . . . ...__~ . . . . .

lll'MACllOll,.

-

* - "' .. ,..,.. ................. -

oldie
!Jpr

u.s.c.

•• u.
••

--._
.........
~

,..............._.~__,..

(llhe Sl?..7'""1, ti.: Sl?~.folla _,._ ~

........ ..

. . . . . . - " ' - ................. -

,_
~--··­

................... _,....... ..... s-.,,.

A~

~~

S
TAFF

.......... 0....,. .... s.-. ~ c..,.,.. - -"' ... "" ~· bw-d
........ Or MM. ...... daioaf""" .,,.,_ ~

Mt~O.ltQ.~T-1'70) Ok

...........

- . . - . - - - .. . , . .

__...

T.,lb~ ......
'-""'1S..- fl~S...&~lht,d
_ . . . . , _ _ OWi . _

&-.. a.., t.- omc. .10....

$

al l'itatl9 • . . . . .
j 9 VIObliiom '11"" HFA Ml al 10.,-. SIOJIOO fdoMeL
I Sec 16
Sl'TI. NPA ,___, ...... ' * ' Y I
~W ..-., ....... tin: .a. ticlrfelt if.ect ill My
•~ol . . tffA. S.2'U.S.C. "72.
10 We M lcfl 10 ~ where the HPA a....ch slwocldct
I
If !Oc910d lit MMlo9 10 ... fu nwM:hlM.
11 In ~IOOn to dlt IOH or clril "-"" illlp05ed on~
fclo.. by ctit •~or fllOM
fclON ponnatlefllly tole
ctlC rllfll llnOtf' ftdeftl kw IO ~ ntelfWI&, • wrdl ..
beln1 pQ1c.111l•ll)' 4•hrrH fro111 Hl"f'lce I• the anMd
' - . d11U ti¥oy_. ._ ,....._., reoeivlac ~
9' darMCc6. ~ .. w..aoo.1nca, ..

A~ I

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... ...,...._ ""' a-111 c""""'°"" .-. -

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-

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4 JU.S.C• .Ul.
~ ~ l\nr nile ol • IN,..... h "Nc'ftr ditlwb 1 body •
RSL• 1'ic IOCOftd, "'lfl O'tclo~. lc.'tdolft1•
ei.. .,.....,.. n. mw. ""WIMll i•doullc.-mble."
6 U.iiect $Qiu .... Lt.SW.. Crimi...i Hct. 4:9SCIU4 re.o.

"*''*'.., I
16', •9 Sw. 119'2: .. eodi(IOd I

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Exhibit A, Pg. 440

48

.. _
---

_,.._
--

c.Nllll l . CANNY'f
,,.._ ..
...,_,,,.. "" ,,.,._.,

_ __
--oc-•-.
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--~
_...

< angn,. of tbt llnittb •tattf

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- - 1( l\tffdtldllilld
........... IK 20$15-<>N
Mrtb 11, lttl

Mr. Craig k t t.b

l..!U S Lalt9 toc:balle Ds"
a...a .. rt. lllll·K4'

Wint•r

Dear Kr . SD1tb1
~i09 a.a u~icl• Ulegifts
• , cai• c:ocdlac:t.. -.11111 ert
l V'l'Clllllgdoi::tg by t.be aure.u
ot Al.coi:lol, Tal»cco. aod n_.....,.. cu.n> l -sipir.ei•t• he.arl.ng
}'CUr viewa OD Ut.ia i!lllpOft.Ut i•N9

'!b.aAk )'Ql for coc.tact.log -

Es-tr g

anc10ffl4 i • t.be &\1'11" •

"•PQl\ff to t.be article.

ia.fo.natloa 1• bel,pt\ll to yw.

A9 a ....,.r of t.~.e lklil.&8e J'U41icia.ry CoMz;it.tee {~i eh bM 81.TP
O'Y'e-Night jvrl..a4lct.1oo}, l vlU r....-,.r rour coi:u:e~ . ~io ,
t.han>t you for talllng t.bll t.1. . t.o ~t.act .y otfic•. :Pl,..H let
'know ~ you Mve cone.ma ret•rdint issues befGre U•

C'oogre••·

a.e. .
Charl•.I T. C~cty
*"'*>9t" ot <:ongTea&

Bttcloa\lre

_.,

__
Exhibit A, Pg. 441

44

OD"ARTM:DIT OF THE TRliASUR'f
•UlltlAU

or AL-~OL., T09ACCO AMO l'Jll&A .....
WASHIHGTOH. o.c;. iou•
f023 Bii

Honoral>l• Ch.arl•• T. C•nady

U.S . Hou•• of Repreeeotatives
waoh1ngton, DC 20SlS

o.ar Mr. carady1

Thi • i• i n raaponse to your November 1.3, 1997, r.queat
concerning all•c;ationa made by Mr. Eric M Lar•on of
.
11i e1Mna9a111e.nt , Diaconduct:. and criainal wron9(So1Jl9 by
t.h• aureau

ot

Alcohol, Tobacco and Pirea1'1 (ATP} .

Hr . IAr90n'• allegations were coatained in tlw
OCtob9r 3, 1tt1 i aeue o! •oun List.• we apologia• tor
tM delay in t>eapor.d.ing t.o your requeat.

ly •Y ot background, Kr . Larson bu been requaatinsr
in1o"1"9Ation on tbe R a R Handy Gun and the Marble 0...
O.ttar firears.s aince <t.pproxioately 1911 or 1tl7.
Mr . Laraon baa r•qi.i,•s·t.ed t.b&t the-•• finar.e be r.-oved
frca UM .cope of the Nation.al P!re.a.raie Act (lif'PA) •
Mbe.ntiver Mr. Laree~ ha.a OOl'l~.aeted Arr wit.b a CJl.l••tion
or ~eat, ATP baa provided tbe ava.Uabla lnforu.tion.
In May of 1.lt'1, t.he Aesist.ant InePoK-tor Oen•r•l (IG)

for lnveatigat.ion.e, Depar t.meat of the Tr•••ury,
a letter fran M . x..o.~aon making all99ation•
r
•9ainet varioue ATP employees . Th• IO'• Office
forw•rded the lette.r to the Director of ATP to conduct
an appropriate inv•eti9~tion into th•a• •llegation•.
The article cont•ined in •Gun Liet• reference• theee
allegation• and auggeete t hat the I G' a Office ha• act.e d
in..wropriately in a llowing ATP to ioveetigate
all•gatione of mi•eond.~ct made again.et the agency.
~ived

I n lt1ally, we vould note :bat it i• th• function of
ATP'• Office of Jna~ction to investigate allegation.e
of wronvctoing Nde agai nst. ATF empl0}'9•• and that it
wae ent irely proper for the JG'• Office to forward
Mr . IA.r110n'• letter to ATP for inveati9atioc.
rurther.or., while ATP d!d conduct an internal
in.,,.etlgatioa into tM a!legatioa. . .de by Mr. Lar.on.

Exhibit A, Pg. 442

I
_,_
Honor-.bl• Charle• T. C&aady
the JO' • Office a leo initi11t.«l .an inOepenct.nt.
inv~ati9ation into ti..ae allegation. and that
invaetigation 1• •tlll ongoing. Due to thl• onvoin9

inv••tigation we are enable to eomme.nt further on ~
t~t 111.ight be taken with re.-pect to tb•

action

alleogationa maaa by Kr. tar.eon.

we hope that thi• information proves helpful in
rt:1pcndinv to your constituent. Pleaee let nM know if
wt1 can be; of further assistance .
Sincerely you.re,

~N4!~ga~
Diree't or

Exhibit A, Pg. 443

46

GUN TALK

•o..wlz:z

--

THE STANDARD REPORT

~

Wltaf Happens When The
BATF Brealcs Tlte Low?

____
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Exhibit A, Pg. 444

47
ti

Muell 1188

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Exhibit A, Pg. 445

Merch 1881

......

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Exhibit A, Pg. 446

49.

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Exhibit A, Pg. 447

50
Merch 1998

79

Exhibit A, Pg. 448

51
-

-

.......... • Ojflclol It L. 11'""- P.h G-"'< ,. C- COIJ«<vol. "7 R. L w.i..o. Fa1l
t<ew Yo<t:'lllc B - -....~-. ..._ ,991._."-'9.

Smoothbora Pistols Firing
Shotgun Shells
BT IBIC • . L&BSD•
-ndld I O N - pQtolt
1'bt.tl..
....u 1lftlml ...-1,. c'-tl.ftllbtil u WldidoMI: piMOll
Cl" ~WIS (Mii U UM•l\1181, b!IJ...,...,... .:I 90 fix*.)
... '°be ,..StlCl'ld. 81111
did .:ic . . . . . . lm'DI
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-..:list.~ Nl'A•IUt d), ATF .....
WNFA . . . '
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J.la *bMe. . . bll

At tw A.mtriull cullturtl anif«a.. cnuill MDOOCb~ P,.
!Oii Of\cl...7 fllollllrl(llCIW.cl Ill .._ Ulllcd ~ ia or
bCf\w 193' ocwpy • 11n~ lliclle 19 U.S. ~ W..,.
..o ,,_.Jop. The)' lllfl lllchJYpriud b7' oo1kcc10n. )'e.4.
.ciU In~ NI....,_ t(riQl!y N mdiine pnl by
dlit l......,ot AJooMI, T~Md ~V.TF).

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(MFA)

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h...t l"'INICla. fMdllM I""'- . t dlllilar -..S. ... die
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or the:if callbtt) ., lalik• co.cal11bk f i - ..
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ucluded "• f4MOI Of IYYOhw," #Kl .O:U doel: IOdaJ. M
Ot\PWI)' ...ed. IM ttf'A . .Md t "61umt,. ...::

AD.al 1926. TW 19»Ad

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vdul lo nppen. famm, ~ I~ W
olhen w1lo wurl;cd OlilMlofn, bdfla rti.t~ly OllftlC*l IAd a
bulltylhvl 1 ~ inicll!W IO bl fti..- halh:-..W.
A dll:1 192:1 H•R ..Ytt11tdnclll .,_.: ...,,.. ·~
0-'ilc'-iWbJ'lht U.S. ~••

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Exhibit A, Pg. 449

52

..

WI

........................

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(

.............. ,.._.A1'T.-: . . •...
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mlf~

....... ..,,_ ........ ~ Nllf# 6,. 1934.
. . . . S.T. 772 ......................... ,pisd
. . . . . . . . . . . I . . *I."' ....... S.T. 119., 1

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bsnl. !I.I
CllfNI* ol tieq o:.
n.aled

w...., ..........
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M ft~•~ piAol tbM was .....&ii:·
tul'fd !. 19)4 WU. ..... ftplMt)', COCll!Ml'Clatl)' llWlllllfac.

v.Jue

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lf)I for Mllfble't o.i.. 0.-- OU. n. Coapas
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unim

Olla Conuol Aa ~ 1961. eonp. ~

thM A'Tfl could aib.....,..\'tfy IM'IOW "'>' .,__ (u.cq:it 1

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.50.0001111 100,DCQ.er - . . . . _ t . fll NFA 111 a:ia.>

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Exhibit A, Pg. 450

53

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Exhibit A, Pg. 452

55

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....

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I .U.C-tMJ.,

.FEB 111969

~
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llaU.MA.l. ~

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Cl.uaitS.AUOG flt the ~cenw ·CCID~ ~ Ibo\ plnol.
~ hi.YO roocd.vod Q tulbor ot ~_, J'Ol-anU.nc: tM ~al.tic..UOft
ot t.M abcnecl amU-.d p1Rol 'llbidL 1A W»IAC'wnld. '117 fhor'Clziq/C.OWr

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a

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wo, Mil it, ~ dlllligned u a plet.ol 8Dd it.II 0Mt1sv•U.C11L11 oaa·

'°

\ht 4&11l11\LCIQ ot • ~ u \b.:l"\ t.11' 1• d.nnecL 1n " ' " 17?.351
TiU. ff, ,C.J.L M a pl.et.ol ibi9 •CQd~• 1• M'\ a t1n&m Ml))Jec\ W
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Exhibit A, Pg. 453

56
R!:PC>Rr

or T!I? TO TBUFSCIN/CE!ft'!R

JiJCHES'f'ik,

iR)6,

CPi..11'11DtP!ll'

it 11l\S p.a. on June J.8, 1969, a •etiDg

W&I

Mld ·~ tM

ThOlnplon/Oorrt..r An&a, Jbrt.• ll, Rochester, Hw Hallplldn, 0)667,

regardine: the stat.u or the "Contenclv" ~ •qgiJll*l wt.th tlw

.liS/.410

&.al.

oall- c-...uon b......i

ond

. . ---t/C-

In at.....S.- "'th1e

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oboa - ·

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.ar.

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... Cecdl. ll:>lt• - -.t.1.cml. Ott1ce, JlD'IJ

.... .'1.otor PnS.o - loatoa

om.c.,

Jit', Pml ~ • llct1oa.al

....

Woll•~ -

·--

~~

JUD

om.o.,
-

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ol -

t.bat 'bol.nc to ...oo11 • JUtoo1 agr<>....t with ~- ..., - . . . tho lll1=e ol tbe t1re.... -

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b......i. ..... ~·. tt>en ............. ol put ml OWl'Oll\ l<icUJ.at1ol>

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Ute H&R 8and;r Ckm U

d

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in

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A. (llr, Volle) ho opt1a>a - (l) Tormln&to ~ ond
lJIS >d.11 11... with -

.......u alread:r in -

... (2) IllS 1dlJ,

iane a R.ennao Jtul1ng th.st the .4$/.410 barrel on t.he -con~•..

::···

·-·

"

Exhibit A, Pg. 454

•

l

57

I

-2c.aa.. 1\ t.o tall undiu- the parri.w ot u. .,.,.

q, (Hr, Outattoan) ~ 1.11

t.bo DIS pooiUcn Oii obot

oboU

ummiUon. and VCNld tb.1.1 1- spp'"e•h'•t
A. (Hr, W. ..onborger)

DS:Uon.

Shot oball - U o n and

•botcl"> -

d.61"1nod..

VON

Q, (Hr •. ~oon) This vUl put ua ou\ of bwd""'H·

.A. (Jt:o. Wolto)

under the O&t.got'7
Q. (Hr.

ot

q.

&

ou.t.r.t-)

.... - .

A.. (ttr. WoUe)
~

Bot neces1"1'11T• Kamdacture could. oontinu

Tb&

D'A lll8ap00•
Woal.d oar dl.sl.ribut.oro nqa1n
11

( Hr. °"5\att....)

eol.4 u •

11-.St

cerca1• ~· Di t:rm1ter n-

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Q.

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~ vUl loa4

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...

othend.... what that

A, (Hr. lloUo) Tbo "Cocttender" comot. bo ·~ ot f1rllll ·old.et.Ille
ehotpi>

.-u-.

b7 Tbmoplon

Sho\obella ot

CloortAr, eboal.cl -

pla\ol

coll-•, U

-.Jllc oul.J>lo -

- -

tbm • -

or pl.ut.1o ba.Ue •
Q,

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(>t-. lblt'•) •

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1.be ~·

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obot-llo ~ bo ot a - - -

Exhibit A, Pg. 455

58

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<n
•·

5 CllQ:) 1• tMre .:q obJ..ct.ian t.o

JllN...ml.7 baT1ilc ••n.ral

bvrela ~red Lor ritla cart.rf.d&ut

.l. (l•-.V-ror)

n:s.

u. - ·

Thon b

no obJo.U...

°" tbo port ot

(Thi 'CCftWnder• pn.amt.1.7" ~ 1d.tb twlw ueort.ed bUTela,

.256 WlAchoeter

excludinc tpe0tal. orde:re. the .22 Hornet, .22 J.t lft4
~an rU1e oU"t.r1.daea adapted to the ·~.·

___
q, (Jto, c.at.r

B a - ot -

and Jto, Tboopsoc>)

• .i.. 914 JlllU'POI'• ,,... ottered. lloWin•t the

t...rt.

-·
t.hlt '\be "Ccm:t.mder•

,

(Ja,o) 1• Uld .tor~ pw:;:11a be ,1utU1o.UC. tor it.a

.l. ( Jto. 'Mbllo)

•· -

BY -

-

.i.. Md •

~ Jl'll'-

poee pot.ct1.al. bid. at1ll -.. m ll'J. 111NfPC18•

~"""~in -

- - · "'·- ·- - . - - · -

~obi. bornl clplbiliv ot·-

1"1-

ot - ...u... ,,.._...,_ -OOWioc
tacilit)', . lbotdnc s.mwtwt cut.1.nc prooM•, poli.lld.nc, pecMasnc,

1-d 117.

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Tbt

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"'·Vol.to --- Ccnt.rol ""'ot lJ68 ~

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ooate~ 'ftl re~

tut

denniti.oa

-

nnnc t...w.v.

u t'ollowlt

ot ...... -

-·ha -

-

denn1Um ot. "l'!..noJ.• h a s.ou.o.179.)S

latt..al. ftJ'WGWll Jicr\ bpl e t ! m a •
Q. (tt-.

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tbo

-

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Exhibit A, Pg. 456

59
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Q. (IO'. ~) ... -

1.s

_....uto -

-

.... rede"4:n t.o -

llhoui..llo •

(tt-. Wolfe) 1 1 ll redet1ne lib.et ve wal.d uncUcmi, ahot aheU.

.&.

btSJtC

rUUas

.blO sbotcma ehell.

llMUoned

pist.ol. casine• that we.re loadlld

OI'

r•loldad..

Pwpos. ot choke on ta. *Conttin4-r.•

Q. (Mr. tiblt•)

It stral<!b"""' the obot on • lino-ol-

&. (Mr. Voirt.enborser)

bvrel ax11 ldnco tM r1t'llng caua• 1~ to splral m4 beoo. leu

(a.. a..tattooa)
n.......-u.
Q.

I dldll't ~ -

.&.. (,... libll'e) Va WOQJ.d. oCll!ldione a

ftn ocaa-....:ILt
. •.J:HJ;r;r naihblo boll

..s loodod "1t.b - .

woal.d. no\ oat lmdw the ll'.P'A . . 1 q

u. onl4 -

oa

~

tho..,..

oad

-

u U. bore vu rS.t'lad 1114 llbot-

-

ct-

-

Could ,,. IMml

...nm.abed

w.uo i......i. ool.d ond tho l.nftntol7 or
,J,S/ .uo bunlof
Y••, 1 111 -11 tbea w

v.•.,. eold eboat SOOO can-,
.. or

toll Ida t.o stop

....,....to ,,...duoUon ~·

00141 . •

.t.. (,... outattMC)

ia nriou _

-

WU

1ut.alJAid.

Q. (It'. llootonbergor)

t.o doto

dec!ve' to

,,. fired. Thi.a """1d ~ .... 1.t -

gun .....

t.aolml~ YU

U tbo

•-Um>·

-t1.aa

~*ob,,.,.

-U-.

•tolllo ond pooul1.ar t.o • phtol.
,

J'Oll au.I J'Oll'd

2000 bGTe1I ID4

~·

rw u a tw d.qa.

p: ? h'T U-...

V.J~ od1 -

l.IXX)

bal"l"ela

borl'Ol - . . ond

-ocb>n.
Exhibit A, Pg. 457

60

-sO...t.att-) -

Q. (It-.

-

1dll be -

ot -

-

,.._.. u... ......... "1\1> .t.s/.lilO bornlat
.t... (,... Wolle)

_

.. ot the

V.•ll lift .S.th

).mr l.o

tho••·

I don't f'Ml. U.t the

be1J>c - ·

Q, (it-. Tbooopeon) !111.o vUl. ..... a 8'1r.

tor tbo -

etop in p-odoct.1.onf
U ,.... . .T -

l. (it-, Volte)

ao..,...._,, ulmd u

wold be repen:u. .1.cna ..S a quest.ion ~ -

v.

a11tence.

vou.l.d

.i~

c.t mat

8orlT " ' - ~ "lt ,.... ..... 111W'-•' I -

-

llllo • • be bl>md

~

tut -

-

-

"Coatc>dor.• .... -

ot -

"1U.

~

......... -

ot -

bod 1.Dqodrl.ee 1A -

poo\

-

°" -

&loo bod nri<U - - .
~

-· -

cl1otril>uWre tl!G 1n 01'dor t.o

8'atu ot tlloH 1A

we'" b..S Mat betan. .u

1n ..... _ . 1n

lmolwizlc pot.-.i -

t.o q<l.t _,..

O'IOl.4 -

\Jpe o : l - -

,....r .....,. 1dll be,

~ \l>G

.a.. -

ldgb\ ..,. under the ooatrola ot the Mt, ,.... doo:l4od t.o l'Odoo;1p the

va..,on

•O

it won•t chubv ~ abot.pn ~Uon..

~)

1, (Mr, Volte)

Cool4 . . .ti.cl>' - · '
!tr o-.i opll>1.cn l.o t11a• U '""'14 dopoad on - . . ,

Q. (It-• ft

)

Q• (it-.

I

l. (11r: Volte)

-

"""14 be the ete1'0 1t ,.. 1 - Ut

llo ....id jo.8' S . - o -

~ ..S tbm

Exhibit A, Pg. 458

I

61
- 6 -

'° &cuo U>d

u..

-~at - ~ - -1k~ 1 -... -1d be ~ ond t1nallT • -

~·

det.e"'1AaUon.

- t """1d be t.ho next •toi> i l U ,..,..

Q. (tr. OU.t&tt-)

an N'FI v.apan.
A. (Hr. lblh) Sl.noe the

...,.cy periOd 1a onr th,... ooul.d not

Tbq ~be contraband and sub'eot to

be ropatrat.1on.

••1wre.

TM ....,.,.. vouJ.d be 1n rlolat.1"". '!hare could po ..ibq be a NCi•·
tntion prooedllN " ' 111'•
Q.

(tr. ~)

A. (tr. lblh) -

_,.

Q. (Ill'. c.awr)

1. (Mr.
~

~-

v...=be

cont.roi. tld.. ~·

"""1d -

cttaot-i.s ..

-

18·----

Mt tlda 111>'

-

aw) .,... Mnoa tb8

vtrpon,- 1-til -14 ban

DO

~·

M not a

be...S..C•

At \hit ~· Ill'. l'llmopoon at.at.ocl t.hat. Ulq """1d • • - pro&l4·
tioo ~ -

.16/.lalO . , _ -

expre•••4 .ppreoiat.1.on tor tho

poao 11\ . a<>-roo

...

at

the

wwld "Cmdertalot •

ncla•icn· ~

tact that ve VOlll4 allow tbu. to cUA•

inftatorT ot Oni.sMd

tNI ""'1.n1..ii.d 'b.,....11

~.

All ..poot.o

at t.bo

""-'Ctntor -

~ ...., cordUl. 11114 ao 'btl1.t -

1IUl. -

tldde

~

that

1).,:lj>,_

Exhibit A, Pg. 459

62
- 7 -

llr. ~ phonod rt )•JO p.a. on J - 191

FOP'9•• nport oo t.bo #tatus ot t.he ~. •

1969,

~

lin a

lie ..trl.ted t.h.t

l.et!AH ha" 'bo., oent t.o oll lJ>o1r repruenta1.ino .id t.ba1. ""'9rtia-

l.nc h&o 'bom otoppod.

Ho l\rrt.hcr otat<Od t.ba1. -

2390 bUTell 1.n •took 1n ..ariocLs n.q.. ot

obt<Od t.hrt t.h11 ft&'D'" vu
t.ba1. tl>q cll4 M\ . . . . . . -

bi&~r

T/O r~v bad

oo~.

t.hm tM pe<ni-

He tunher

·~

ill

knUa >biol> ...... ill p1Dd1Dc . _..

Exhibit A, Pg. 460

DEPARTMENT OF THE TREASURY
9URIAU OF ALCOHOL. TOBACCO ANO tl'IRCA .....
WASHIH WTON. o.c. aoa.t•

.M. 2 0 1994

M Bric M. Larson
r.
Po~t Office Box 5497
Takoma P•rk, Maryland

20913

ooar Mr . Ltiraon:
Thi• ie in reaponse to your letters dated May 31, 1994. to
the Maiat.ant Secnt.• ry (Enforce..ent); June 3, 1994, to the
Director, Bure•u of Alcohol, Tobacco and Pireer.a ( ATP);
•nd June 14, 1994, to Secretary Bentsen, ••king for
recon.eideration of ATP'• decision of Karch 23, 1992, denying
your requeat for re110Val of the Rarr-ingtoo •nd R.ictuirdeon
Handygun (R • R Ha.ndyqun) froa cite acope of tM National
Pir•a%Wie Act (MPA), 2' U.S.C. Chapter 53. In aupport of
your requeat fo~ reconsideration, you aubmitted aeveral
article•. In the par•graphs to follow, we have addre••ed
t~• portione of the article• which r.late to your reque9t
for re.oval.
All you ob9erved, one of the reasons for denyi ng your

requeat waa ATP'• conclusion that the H • R Handygun i•
ai•ilar in de1ign and function to the 1a_,.d-off ahotgun, •
popular crime weapon that has b4!en the eubject of numeroue
Federal and St•t·e proeecutiona. You contend that this
poaition conflicts with the Government ' • argument in a
United St•te• district court case. In that caae. the
Government correctly pointed out the legal diatinc~ion in
the NPA between a weapon made f rona a abotgun <e.....o..... a
saw -off ahotgun) and an •any other ~apon • (Jt.Jl.., an H 6 ~
ed
Handygun). Specifically, a sawed-off ahotgun fall• within
the definition of •weapon made frOID a shotgun• in 2' U.S.C.
t St4S{a)(2), while weapons such as the H 'R H•ndygun are
within the definition of •any other weapon• in 2' u . s.c.
f S845(e). Pro. a lc.:Qal at.t.ndpoint, the difference i•
aignif ieant aince the tax imposed on the tran•fer of these
veapon.e i• $200 in the case of a weapon Ndie fro. • ehotgun
but only $5 in t-he case of an •any other veapion . • However .
as we etated in our letter of March 23, 1992, there ia no
QUCt l caJ difference between the two type• of V4:apona in terw.8 of deaign ~ functioo. Therefore, we aee no conflj.ct
~tween th• poaitiona ATP bas expressed witb regard to these
veapona .

47.740 91 . 3

Exhibit A, Pg. 461

- 2 -

Mr . Bric H. Larson

You •l•o •••ert that a sawed-off shotgun hae Deon convorted

frOIR a •houlder fit'ed. weapon for the purpoee of tr•nefonaing
it i nto &I\ offensive weapon, while the Kandygun vaa designed
•• • •port~ng pi stol which is u•ed as a aiaell 9•~ gun.
~ain. you believe that this difference render• erroneous
ATP'• conclusion that the design of the two weapon• i•

identical.

From • utilitarian perspective. the tact that the H - R

Handygun i• capable of being coneet.led and of firing a
fixed •hotgun ehell makes it. comparabl e i .n deei9n to t he

a&wed·oft

Tne Handygun can be u1ed aa rea uily to~
purposes as for hunting ...11 gaMO or
exterwiinatin9 varmints . Further.ore, the fact th.at the
K ' R Handygun utili%es a receiver that ia identical in
•ochanical deeign and function ~o variou• eiogl• ehot
. 410 gauge •botguna produced by H ' R indica te• it•
•iailarity to a saved-off shotgun. Finally, that COngre••
cho•e to include both weapon. within the NFA definition of
• firearm• indicates that both should r . . .1.n •ub!ll!'Ct to MFA
control• unles• it is clearly establi•hed t.hat they meet the
criteria for r•.oval. As ve have atated repeatedly, the
criteria h.ave not. been met in the c&•• of the H ~ R Randygun
eince ve cannot. conclude tha.t it i• not likely co be u•ed ••
a weapon.
ahot~n .

anti·peraonn~l

In further 1upport of yCNr request. you t\Ave again aaked us
to caripere the H ~ R Ha.ndygun with the . 45 Colt/410 9• "'9e
Tholl'lpaoo Contender pistol. a fireara you beli•v• i• ai•ilar
to the H ~ R Handygun and which is distributed in c:oauaercial
channel• free of NPA controls. Again, we f a il to •ee the
baeie for thic eocinparison because the Cont.endAlr pietol ia
not a •MOOth bore shot pistol subject to tho NPA.
You •l~o •ver ~h¥t A7F did not give adequate conaideration
to the state•e.nts of certain third parti•• in eupport of
your riequeet. The statements of third parti•• were
coneidered but do not persuade us that H ~ ~ Kandyguna would
not likely be ue~ Al we.a.poo.a if re.11KWed fro. NPA cont.role.
Your .oat recent correspor'Mience et..• t•• tMt ATP ha.a

given fair and adequate consideration t.o your argument•
and ha• re•ponded cryptically to your requeet.e for
reconeider-et.iOD. Ou.r records indicat:e th.at. ATP ba.e

not

cor~eponded

v itb you 17 ti-e:s concerning t.M H ' R

Hand~

\

Exhibit A, Pg. 462

I

65
- 3 -

M . &ric H. Lar•on
r

from 1917 · 19t). W
ith the exception of th• letter dated
July 29, 1993, which briefly re•eated the bai•i• for ct.nia l
artic:ulated in the March 23. 1992 letter . all of our letters
have re1pondod to the issues you raiaed.
finally. we request th•t you delete from your articles the
invitation to your readers t o contact ATF for copie• of
court doc:umente. Since these document& t re public records,
copies 1hould be obtained by contacting t he courta.

For t ho foregoing reasons. our decision inuet atand.

Sincerely your• .

~~

/ . . / John. W. Mag.aw
~

Dl.re-ctor

Exhibit A, Pg. 463

66 '
Tabl• I
~ IO Fin .410 ShoC&un Shtll Ammunilion
CumnU, Being Manufactured and Sold in the Uni~ SW... by Name,
Calibef(s), Band Length(s), and 1996 Retail Price

Hand«w>S with Riiled Sorrels

JUn.pl ltDIS.b(I)

1996

tiamt ~( hlDdSUD

Cal it!Wl

American Imringer Model l

.45 Col~ .410 211'

3'

S320.00

American Derringer Model 4
(tw<><!ho<)

.45 Col~ .410 3'

4.1"

&'l52.00

Amtrican Derringer Model 6
(tw<><lho<)

.45 Col~ .410 3"
and .4S-70

4.1

$387.50

O.MAX Sidew!nder Rm>1ver
(kllot)

.45 Col~ .410 3'

6..5" or 7.6'"

mo.oo

FMJ Sitlgle-Borrel Deninger

.45 Coll, .410 2it•

••

$ 70.00

FMJ Doublo-Burel Derringer

.45 Col~ .410 3'

6"

$100.00

Thom~ltt

.45 Col~ .410 3'

10"

'227.50

.45 Col~ .uo 3'

10'

$485.00

14'

$520.00

1614'

$520.00

2'

$&50,00

~

W&ll

{IW~lOI)

Contender

(sing!Hhol)

Thompeon/Center Sta1nless
Con..,nder (1lngle-eho1)

Thompeon/Center
.45
SIAlnlcss Super 14 (single-shot)

Col~

.410 3'

ThompeorVCenter
.4S Col~ .410 3'
SIAlnl... Super 16 (single-shot)

1llunder-Flve
(S-shOI revolver)

.45 Col~ .410 3'
and .46-70

Soun:a< Standard CalalOfl of Firearms, by Ned Sc:hw!na and Re<l>ert H<><rie. &h
edition. Iola, Wisconsin: Krause Publlcadons, 1996, p. '157; and 0..M fllu~ 28th
edldon, by Harold Munz (ed.). Northbrook. Dlinois: DBI Boolcs, 1996, pp. 147, 151-152,
154.

Exhibit A, Pg. 464

DEPARTMENT OF THE: TA:£A.SUftY
•VftC.AU Ofl .ALCOH~ T08.ACCO A.HO rut&A'9M9
WASHINGTON. CG ::tOZ.25

JAN 2 8 1998

REFER TO: L:D:AG

93-Jll

Mr. Eric Lonon
P.O. Box 5497

Takoma Put, Maryland 20913

ow Mt. Lano•:
This is in rcspoosc io your Freedom of Information Act (FOIA) request for eccm io Information
maintained by lhe 8\nlU of Alcohol. Tobacco and Fittanns.
Your l'or on ldmini_.,. 'l'l'Cal daled De«mbcr 26, 1997. in respoouc oo our 1ctta
dlled ll<ccmbcr 22. 1997, is ~ pro=sed as an initial mi-. b<uuse in lhe inierim a final
dcdsioo
lhe rqiort you requcsud Tbm:fo«. your is .,-eel in port. We
. . '"'-"" po<tiooo orlhe r=inl thot coataim eump1 inl'onnolioa and . . ..;~
pOrtioGs £or the rcasoas indicmd on the c:tdoscd Uf\onmrn« Co'v Shed." We ~unable to
Mlcalify ..,_,.;. . rccOnlo 10 iicms numbcnd rwo and tlutt of your Wlial FOIA dM<d
Sep<cmbcr 21, 1997. I - tlutt DOYCr mst<rialil<d.

-made..,

The fees asaocllkd with processing your FOIA n::quc:st were not "''lived. Plcuc submit your
chock or money Of'def" on rteeipt. in the amount indicalcd on lhc enclosed lnvoict.
lnsofw, u your n:qucst has been partially denied by deldions, -.nd some rooords were not
lowed. you submit an admini>tnWve appeal by following lhe pro«<IW"< oudlned in Pan III of
the enclosed fonn. and also swe your reasons if you \>(Uevt the search wu not adeqU1ic.

Sincerely yours,

Awrill P. Gnhom
Sa>ior Disdosutt SpecUJU.

Exhibit A, Pg. 465

68
OEPAltTMINT OF TREASURY
BUREAU OF ALCOHOL TOBACCO AND flA£UMS

FOIA/PRIVACY ACT INVOICE

°''" 01177198 l Obdolurc: fUoNumber: 9S..31 l

l INVOICE NUMBER: 9M6

lnsuuaiom to ...,..

SC2"od c:hcdc or money Of'dct to-Surau of Alcohol. Tobacco~ fltunN•, to the addttsl shown
bctow. Pleuc lndudc • copy or tht in¥0itt with yow paymentTo' (Pay.,) Mr. Er'lc Luton
P.O. 8oi< 5497
Tt.koma Pu1t. ~ 20913

From:
Chief, 01.sd°'ure OMalon
B~1,1 of Aleohol, Tobacco and fltt:attN:
Room 8<30
washlngum. DC 20026

DESCRJmON

005T

EAOi

QUAl'mTY OR TIME

AMOUNT

"-<opics

us

h&<

s1_.

s 745

-Sc-

$28.94

p.,.

~-

Sl4.4'7

p.,.
hour

111<i-

$43.03

A<riewTimc

$34.42

....

Pt.EASE PAY nus AMOlJm¢

I

S6S.IS

Exhibit A, Pg. 466

69

'·

--...

~

_

DOO.IMlHl ~ SHtcr~ EXl:WTWJNS USl AAO"'"M

,...,~C-5JllMll

...

,_

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1. ~1 (11tdfof trlf~1oit•~on ~~&e...,.ll tor~d~

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. ....... &. ......, . . _ _ ,

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...... Md ...... O..NlllllPlf;,_ _

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............. _ . . . ... ~...,,_

'

_ l

o..,.iuo. MCOfdl cs.. aonptit,.. _ _,

........,.. 01 ~lftt ai.ldlf, &t t.amp1t Pllf' _ _l

Mltcell.,...GM..,...,lt .,..., _ __ l

o1-..

"*

MOlfl: lo Obtain eopi.
f9COl1k,. ldenilily whi(h ~ )'(Ill ...,.,,._ «MJnl IMfllt and fl'lullipty
"" IJCWlll. s.ndcNc:k or-on.vorde• ~IO lkJ-olAlcohol. Tcibaa;o#ld •1,._..tlATFI and
mMe 110 OMel,. 01.cl~ ~ 8ATf, 6SO~ A - , . _ MJO. Wf//lllnllOf\, 0 , C.
21»26. - - ~- - - _.,itt,. • lileJ .e .....-1 IO lleid o.tloet IS Urt 1(Wr INt flOlic9 9

"*'-'•'f'D'll·

..........

.

f'Ml-' P.r. •00t- . -

Exhibit A, Pg. 467

70

OC ~AfltTMCNT

0,. THC TfltU8UfltY

•V1'CAU °"•"-COM~ TO• ...cco AND ,.•• u

. ,..........0-.0....

oc

......

~

F:SD:WAN
1146

--

MEMORNllXIM TO: ATF~

FROM; Qiof, -

·

El<plool-...,

Aisa

st1Blf.C'I': Mew a+= olOtatm
11a.. ...;....,

omc. ol 1 _ , a (OI) . _ . ol "'-lplioo. -

dlllD4~22.l997. aod•k:a

'

'CMt

n ·en

Vl0171-0I,
1 .-.•••amreed

01'• ia Is I of t&pr• imde .,._ )'Oii ml rwo
_ , Bunou - - b)' Mr. Ede lot, W-oll'Uoma Put. MuyllDd.
Mr. L&noo ..... Idler .. Ille Oftloc
Allis.... ~ Geocn.J (IG) ...
La,...,,.pdoa 4Mod May 10, 1997. l.*'1Cr forwarded IO OI, Mt. Lanoa.'s lecra-allqa
dal1"U ...
Jkuuu . . . . . . , _ _
~I) ATF
qlO)OCi dc$CtOyCd t1rearm l'ibaMkNJ doe
CbM Chey WCR Rql;lnd b)' PIO

Tk n:port

lb<_,

"'die

111o--,.

-l)ATF~rq-~l.SOO-iR=ON­

F'...,,.. M()WA)tlt<anm-dlc propcrwthoriDtioo-C--: 3) 1"U
aod atlOCber ATF t:tn?lo)'CC pcrjllt'Dd )'ounclYCI i.I two lcncrs U) Mr. 1,.anoft:
• >rql:scntioo actlvUy Uiat ATF clauUa • " other• could lllc.lude realstntioftl of
&Ra.nm lbat ATF employees rqjllef'Cd 0011UVJ to Che law, lftd chat AT'F ttfulCd to
dbcbe tbc natw"C ot this rc1istndoo acdvicy: a.ad S) tbM a ai1Dif\c::a.Dc: number of NPA
fircanm were rc1is&ctcd IO penoo1
were dcccuc4. HoweYer, die ln't'ddptioD
did not ~k "1J'1 o( tbt aUtpdool &Del I have tou.nO ao evidence of any

""°

WTOJl&doiac 0G JOUI' p&n.
Tbucron:, 1 am Ls.w.ine !his mcmon.ndwn or clean.nee coocc.mlnt the lncideat cowred
in cbe abo¥C-rcfcrc~ 01 rcpc>n ot loYe&tlplk>ft.

Exhibit A, Pg. 468

71

oe:,.A.RTME:NT OF THE TRC.ASUAY
ALCOt4~ TO .....cCO A#ltO ..... SA.. NI

•u•~u

°'

WA..MIHGTO.... 0C 202.tl

MEMORAl<l>UM TO:
FROM: Chief. FlftUlm. Eq>losi\U and Anon
Sc:rrica Divi.sioo

SUBJECI': M........,,,., or Clcanoce

n.c -~ itmow -

ia-ipdoo. -

~ oaloa

Tbcrcpon

(l'IU!) i.u . . - Off,.. orlmpocllao coo~ or

9'10178-42, -

11-.....-.
01.'siu

Oaoba 22. 1997 • ..,, boo .... ..... llW

·, • • ro(aPcg •

T-

made.,.-)'Oll.wlCWO

...... .....,_by Mt. Ent M. Uma or
Pad<, Mlrytml.
Mt.
a 1cacr '" 111o otlico or 111o IWiswJl . _ Gtoelol (IG) 1or
-

w- "'"

~dalolMayl0,1997.

0

1 - - 1 D O l , M t, Uma Sllaorallqa
: l) ATF
Cllll'lo7= ~ tlrana ...... llW llloy - - ........, by ......
aaa.aiA: 2) ATF 4lc;w ~"'PP'
'J 2.SOOmwq:Rnld Nadoml
du< 'JOO IDd Ille -

-Cllll'lo7= ""'P"'Od Ille 1011Dwi11 I

----~: ,J)'fOO
IO Mt. ~ .

, _ t.a(IO'A) - -....
..,, ATF.......,.. pctjnd )'OUnd>e$ .. ""' lmcn

rqistndoo ac:d'tily tbot ATF classffics u ·o111os• ~ mctude r q - or

firc&nm-4bal ATF mplofca rqiAeRd coocnry 10 the law. aod dllt ATF rci\uc:d IO
d.ildole tJx naan or cbil rcgistntioa. acciviry; ao:t S) that • 1ignificull awnbtt of NFA
fll"CIJlDI well rtglltercd to persons wbo were dc:ieeucd. Ho'WC'U, the iovu1i1atlon
d id oot M»:Wlliate aoy of the allegations a.od I bave (ouod oo evidence of &D)'

wroQCdoU., oo )'OUI pan.

After a carctu.I ft'Vitcw ol tbc report, I COOCW' witb the PRB. 'Thcn:!Orc. 1 UD Wulna
dm mcmorudum of clearance. c:oacc:ming cbc ioddtol CO¥e«d iA die atlo¥c•

.......ooo101 rcponor~

watmXi A. tleboa

Exhibit A, Pg. 469

72

OEPARTNENT OF TH£ T'REASUltY
9\lllt.£.AU CW- A.U;O"°'- TO.ACCO 4.f'f0 n •CAAMS
W.A.SMINGTOH,. 0C

202.%.

A:AIL

CE I 7 !l9J

2146

MliMOMNDUM TO:
Cbld, -

FROM:

Assmm
..........

Dmsioe

Dit«o>r, Alcollol and Tol>occo

The ....,.,,,_. Revjew BoUd (PRB) bu l'C'i<""" Oii''°' ol lospocdoo (01) Report of

"'-lll.lloG. -

910173-03, -

~ lllCdoo · - ~

Oclobet 22, 1991, and .... - - .....

ors iw• ·c · ot•llcptic- made tpimt JOO ud rwo

1be rqion

bJ Mr. Ede M. l...moo ofTabxu Put.. Mlr>'bol.
Mr. Unoo I lcaa ..... OClic>< of Che AWswil . _ 0cacnJ (JO) filr
la Jew• ducd May to, 1997. l.ara' fonrardod 10 ot. Mr. Lanoa'a acucr
lblll ,.,. ... Cbc. odlcr e.n.
)O::S
•
die .,..,....,
I) ATP
)CU dc:slroJ'Cd tSrc::ma tta;iatO.
dllll; lbef
bJ law.,
OCbcr 8m-c.

,

I

)OCS

'I

'I

oac.c.:

weft,.....

.ues-

IOliolalo:2)ATF_.,,._ ........... _
ly2,500uarqilcr..sHllimol
f°tran:Df N:l (N'FA) &anm wilbaat dae: proper- r :t i doa from Coclc:rca; J) JOU
ud IDOCbcr ATF aapio)u. pajval Jmsdw:s iD twO Jdrfts to Mr. t.ano.:
4) rqisndoo aahicy lbal Alf' duaifies as -~ could lDcbk 1qlsca ' •of
llranm d>I( ATF _ , . . . rqislcral """""'Y 10 die llw. and d>I( ATF 10
4.iaclolc the me.ate oC dUs rqistntioa aa:ifty; and .s) dm a s~ 11U111bcr ol MFA
fireums Wert~ IO penom wbowettdec.cucd. HOM:vct, the !au icML:R
did IXIC subaulduc any of tbc a1k:ptiom aad I have found no evidcl:ice of IQ)'
wnqdolJll oo your put.

A/tl:t 1 cm:t'uJ l'C'ric:w of l:bt rqion.. t c:ooc:ui- whb dM: PRB. Therefore, t am luuiac
ebb: IDtCDOnlldt.ml of ckataocie: COO:'.ltnliae Che Stlkm ~ lo lbe abo"ll!~
..-Olrq>Onofillo

'c•'

Exhibit A, Pg. 470

78

.. ..
T.. ~<YID 1·~

ODMnCIClll'T OJr 1:8

-no Olf

ALCCall.~

~

TC8ACCO ._, PUtUa9
~

twe

1

°" ..wna

ma-r

ti.•c, n.-.c.,

Hl6cU•J

O/rt/f1

M:IQIOW.t.IDOI ftlA.T

°" nm

ABOVE.

~

I

mrvmt

f:r•..,_

'CIMdr .,.,repr1a t• "°1tJ

"°"Jal Of' NOPOl9) ADVl:UI ACTlOlt

llOTICI

or ADYIUI ACTIC*"

ll01'1CI

or

not'OllD tOOPSM&I OM

llD'l'lC:S OP IQIPDll IOW

• 0

l~JlyJ

....u......--ui;;Ti.om

• •C1n•ll11:m<tra........

- 1vl ·T11

S-1~'9ftl ~ nyqt' ~"° DOCl»mn'

1

1.rr r

:Jl\lU ·1iT"

llf'UCSS ATF

~

~·USU

10 1,•'7:1) (JilklOl ....y U

Exhibit A, Pg. 471

74

•

DIE:PARTMEN"T OP THE: TREASURY

•uauu °' A l.CO~ TOSACCO AHO"'""' .....
WASHlHGTOH , 0C ::t022.•

DEC

g

mr
H :P:R:DEK:ssw

2143

KEHOAANDUK TO:
FR<»t:
SUBJtCT:

Assistant Di rector, Alcohol
and Tobacco

Chair, Professional Review Board
Memorandum of Clearance for

The Profe11lonal Review Board (PRB) Ka• reviewed Of !ice
ot Inapection Report of Investigation, n~r 91011803, daited OCtober 22_. 1991, and bas concl\aded that a

ae.orandua of clearance is warranted for
Chief, Revenue Division.

Accordingly, attached i• the

-.orandua to the employee for your aiqnatu.re.

!!Q.!!:

If you disagree with tats action, or have any
questions about the PRB r·e C01Dendation, plea se
feel free to contact ae at 202-927-8555 prior to
1i9nin9 the aeaorandua.

If you a9ree, please review, siqn And date the •cmo,
and then 111ue it to the employee. The employee ll'Lly
alto be allowed t o read the Ol report should he •tk to
do so. Please forw~rd a copy of th~ signed, dated
m.enK>, to:
, Chief
Employee and Labor Relations Branch
8ureau of Alcohol, Tobacco and Firtat'IUI
650 ~ssachusetts Avenue, N.W., Room 4300
W1shin9ton, D.C. 20226
It 11 importa.nt t .hat you send this ae.o aa soon as
possible 10 that £!.RB can close the c13e with the
Office of Inspection . You should also c~lete paqe l
of the 01 Report of Investigation (Aff Fora 8600.36,
lnvest19ation Referral Ke.or&nduai), iteaa 12 ci'\rough
lS, atw:S return the 01 Report to the Office ot
In.apoction.

Exhibit A, Pg. 472

75
- 2-

enr

Should you have
chan9e$ to the ~, ple1ae
your 1ervicin9 eap oyee relations specia1iat,
•t 202-927- 8640 .

Don E. Keith

Attachment.i

Exhibit A, Pg. 473

76
OE:19A.. T ME:NT OP' TH IE TREA.9U ..Y
•Vl'CA-U 0¥ ......COH04.. T09AC:C.0 AHO "1"CA•Ma

.........- - . oc:

zou.•

ltRJ'll
970178
TOr

Aa•i•t..ant Xnspector General.
tor Inveatiqat1on9

PROMr
SUBJZCT:

b•i•tant Director
In•pection
M ...naqeaent and ai&co.ndu.ct by i
•
, o and other uaidenti f 1M
eaciiloy•. . of tbe au.r..u. of AleobOl, TObaoco

and P-lre.aras .

ca.se Nu.boars 9'7-1-075-t

I re..ter to your --.orandu:a dated J une 5, ltt7 ,
rete.rrinq th1a aat:ter for investlgaUon..

Tb• lnv. .t i p tlon has bcM>n cospleted and tbe report has
been 91ven to , Auditor. Chic.90 Off i oe of
lMpector General, Vbo is r.vieviDI) thia laaue for th•
Trta•u.ry Office of i:nspector Genaral .. .

-

Ric!l'o>;d

/1."tfta'fu<inaon

Exhibit A, Pg. 474

77

"""

-

..

••

.,

et a •

O"O.....-.,-EAate9

•• I

J
•• J

-.
........

·-·

--

07

J
.J

•• .!.

M4:•~~

--

-...-...
su~ot
su~ct

COaplainant

l!ric

W
ltn•••

9L

..ll.

o-

~= o -

...

............._

....... 0'4"0Cl&Jl.10 N

I
J

Ofl~=r-=-

.....-

CROSS REFE:REHCE lNDO:

.

":..-;;;;•

..

OlM.lfrl«WT Of TME TFIE.A.SIMY
......,.,~~

.. --

--

tlOlll

...,,

ANOCl.tefl IDOITIRCATIOM

c
c

•
•

Wi tM••

0

V l~a

.

0

Witneea

--

VitM. .

•
•

.,,,,.,

r.. ·~ _.l!'"f'est_l_g_•tive

ACtlYity1

lfi

Exhibit A, Pg. 475

78

..
_ . _____-- --·_....-·
____.-. __ ____
---------°"""
. - -- ·
DEPARriiBri' OF iiiE 't1WliiMi'

....UW..O' ALO:ltCll..~ . . . . . . . . . .

INYESTlGATION REFERRAL MOIORAHOI. .

L

_.,..

..

w..-___.........._ _... _

..

Revle~

-~-

-~

- - - - .........-ii.._.

Board

.

1

Chie~,

Indu•try
Compliance Dlv,
GS•lS

....
•
.

""-

.............._...............

._ _ _ _ _

~ "' - a •

' iikih l6ilii'Niit¥ib
Ch.air, Prof ... ional

.,.

_._

..................
............ .............. ..........
..._._,,.,.._..,,,... ___

& - - -.................._

........._.....

........... ... ..._
......................... __ .._.,.....,
......,.
........ ....... ...,""""'....... ..
............
........ .............._, ...... _.......,..._.
_,...._.....,.

..................., ......_,..,......._ ...
- ...................

•

Karoh 1), 1-t•1

•

....il9'0llJ.IOf10W~\M.BSM.MfOlllr'C:..,,.,_Olft•

..,,....,flOl"~MIMleU&.Ml.B>WC. •....,....OIA~ Olll~~

CCI

ATP ..... 14,.00.JC, bport of tnveat.ig•t.1G111, v lt:A .OJ.bit., to:
Melet.ant Di.r.ctor (Fi~. SXploel. . . I Ar.on) I

Chief, PIU"sonnel Diridon, turuo ~--;
Otl•t, captor" •NI x..llOc' bl.•"t-lor. Sr•nc:DJ and to
Aa•l•tant Inti:p.c.Uir co.eo.rat tor z:....ic1.,.tJ.one.
Otflc• of J.rwpect.or General, o.partaant of U... 'h'-..vry

..,

..._
(Ill"'"

omc< "',_.,..,,,
IUlll!NJ

WA~OC._, ....

Exhibit A, Pg. 476

79

......

tiiJWliillflDfl OF TH( TAEASUAT

_________............
_
.. ..... .... --·- ,........,..._ .......... .................. _
..._ _.._, _......._ ..........,__
,.._.....,...,..................... .. .....
_
.........
..............,.... ......
--- - .trl,,C:OQ..~....,

,,0171""°1

lfVESTIGATlON REFERRAL MEMORAHOUtil

_
_

___,

....._

_ .,

~-......-.
......... °"""9

_,....., _....................._......_
..........
....

........_._.-...__ ...... _. ..____._ .. . ...................

~-

..

- .......
..............."' ___,_ .....

-~

~

,....

......................................t... •• ~

~

.,,__ _ ............
_
__,,,...__..,
-

'

.... ~ ......... - .......................... v ..
t. WWW• miwJllll6t6i6

~•l•"i&t1t oirector (Pirearaa. t:x:Ploeiv . . • Ar*on)

•

A~P

·,,?1

SpocialS..t

•

GS- 1 ,

e. ~!at.ant Oi.Hetor
(Inspection)
,... ...,.., • .,..10 •

,

~-...-..L--......._.,

Buc• au
HMdQu•n•r•

•
7

lM'UCAlm UIU8$1'14: l'l1'C'l:J Cllll llcncllldO# « •

.,_ ..,_. ~M IM.18'.ill.fl8.lel)l#OlllM ....-oRTOF A~OI'......... ~

cc:

A1'F Forw tt00.16, Jteport.

or tnvest.i9atlon. vlt:b .-.U.iu. to:

Cb.le t. ~ Olvi.9.ion, IU,ru u 8e.a&qu&rter• J
Chie f. a.ploy- and Labor R.•l• t i on. trancb; and to
Aeelaunt Inspector Ge:aeral tor tnve•tiqa;tioM,
ocrtoe ot: l nspectoc Ge.ne:r-•1. oe.~nt or tbll TH••m"Y

....._

OFRCE~_.9PECTIOM

llJll(NJOf41f

W"5MNOTOll.OC to0t14ICll

u. AAl\IAl6' RfWO XdfiOW WI IWii.. blli

an l - • n•-

_.....,,.. _.,. ,_..~

Exhibit A, Pg. 477

80
&hMWJIY Ci TMt iiiiDliW

_
_

_..,. ___ .._
..._ ......._............_____...............__
......
- ,.........,___,.,.... ___..........,., "',,...._.
................_............ ....
_. .,... ___
_
_,.._ .................................-----.. . . ----·--·----... .- ___ -.............................................
...... --........ -......................·-Q ....................-.i-·---..
. . . . . . --. •
llUfllMIOf ~JOMCICO --........

91017•-02

lrNESTIG.A1lOH REF£RRAL M&IOA*ICJfi*

" _ .......,......,__ ...... ...
"""'
_ . ................................._.°""._
... ................ ...

.,,..~-..-.,. . oai-.. . . . . - . • . .......

._,
..._.._

._

~.,

1.

Ai'AAI IOiM1JliliD iO

Cha ll'• •rof••• i onal :Rev iew Bo6.rd

..........
r1r - r.t1 tw:b.
~~.

•

'•~rr

',

1 t7o

•

"

M•ht.ant
(1

•
oc:r

ca-1s

D~

1oa)

ATr Fora 1,00.16, Report o:t tn-..at.lptio.., wt.Q eDLblb, tot
Mal.at:.a.nt. 01.rer:tor (Pir.&r-, o:ploet. . . ' ..,.._, 1
Cbi• f', Personnel DiYialon, 9Ur..u ,.......nee.;
C21i•t, z.ploy" Mld JA.bor h.l• tiotW lre.tlda; a nd to

A. . l•Unt Inspector General for tnveati9•t,1 0ft8,

otrlce of I nspector ccne.r'a l, O.p..rtM.nt or tll•

11, IW1\lllll1IO

....."'"""'°"""
...... _

~eaavr,

._.NJMA-Tf

W......OTOM, OC tlOt' ....

• ,,, _

. . (t, . . ~~ ~ OMOl.Eft

Exhibit A, Pg. 478

81

_ - ___
_ . ...___- .--:::.::-..::'-........_
..
.
.......__
.....-....

bthRIWi l OF' M iiiiiiUT

. ............ ....______.....
...
-........,__
..............,.._.......................... ...,
..........._......,_...
..............

----MJ:lOICIL~
8rNE.STIGATIOH REf£RRAL MOH'>RAHDt ..

-

·----·-·-.....,.
~

t1011a""°1

__..,
............._
......... _.,,...,......................,,_
,.....,. ....,.... ,.,..._......,_
...,.. .......
...............
---.
........ ................. ..
·-~~-'!'·~--::~

& I. . . . . . . . . . . . . . . ...... _ . . . _ _. . .. . ..
. . * _ .............. ~. _ . . . . . _ 11 . .

~

1. WfWWWbtb
M•i •ta.nt. Dlrector

(Pl_ru~.

·-·---

Explosive• 6. Ar•onJ

•

ATP Sp.9c;ialiat
.
CS-1-)

e. 1~0F"""lll'ICM1....,.

--

F~

. ucr.ar:

oc:

Inteqrity

22, 1t72
~

ntl91118"111Mf•JCJJ""l0• ~IM.£Sl"M"....,.C..ecno.C# n •

..,.._flOll_,,,_._tulJ.lll......,t#laf•~Ol• ~OI'~-.

A.17

r..

1600.>•. aeport_ ot

~.. ti.on,

v it.b e.acbibiu, t.oi

a.i.el~

Pu"eonnel Di...Uice, ear.a.a ~ ;
Cbiel, i:.p1or" aftd x..:ooi- Re.Latione arancll1 and to
Aa;elat•nt Il'I#~ ~l for lnveatl9atJ0"9,
Off ic• o f

Jna~r

<;en.eral.,

Depa:r~t.

oC the <rn•aury

_

............_
......
llUAIEAUOFATF

~roN.oc_,_

Exhibit A, Pg. 479

82

_

..__ .......
____.......__..__ ..
..........-·--------_,..........
_.........._............................,_
.......-......-..-..-- ...
................._....,. __ ...............

.,,_....,......,..._... ....__. .....
.. __... _....,._
_ ...... .. .
.........
..._._..........-........
...._

_......,

., .._ _ , . . . . . _ _ . _ . . OllC._ _ _ _ . . ........

.,,.,........,_-... - ..--.•-n.......
....,.......,\,-.,,.._,.,_......._.,

-------~°""
......_...-..... __,

~

a. _____.._.._.,,......,._...,. _ _ _ ....,.

•""'llllllll.....,...- ; r , .....u•

•Mllillof\...., ......

,, Wi"Ofilill.N&516
en.tr, Prot•••ion.al Review Board

•

"_..._,_ ...,_
.,.,...,._

..

rtr...... 'heh.
Ka.nllgU, C.S•lS

...

.,.
rek\L&-ry 1, 1110

..

Int.99rlty

,..

OCT 22

.,._ lllU'ClllWf. JOJ10• o.FUCAllO-.ESS M

IV'Qllllf(lllt ~Oln•

wroce'°"'UKASw.JUIM.,._UJQll . . . . . . . . Ol.~Oll.,.....~

cc:

ATP rora 1600. J6, Re.port oi: 1-ft.veati.-•tlon, v it.b 4nCh~ita, to;
A••i•~nt

Dir.et.or (FirM.nM, eq.la.tvu '

ArMift);

Chief, ·Pe.raonne.1 Divbion., 8'ttNU 11udq\a•rter1;
Chief, !'aployee and Labor Rel•tlon. lr•nch: and to
A••lstant Inspector Ceneral for Jnvestl9atlo~•.
ottic• of Jnspector c.neral, Dep11rtae.nt ot th• Treasury
II ..rn.-1110

OffUOf:INIPK'l'1Qfll
tl.lllE.toUOf"AtF
l'OllO• Wllll»

l!IA8141NQTQOI, oc; IOOll . . .

tr. 11,_fllii61'h!W'.ltf1Qi1'""60fid1Vi &hi

. ,. ' -

r••Mll ....-.it.faro.rs.,,,,. Ol'9CkfTI"

Exhibit A, Pg. 480

83
OEPARi'ili8ri' OF THE TREAiUM'

~OI &CICIJIQ.109ACC0/llC,_..-.

97017•-o>

-----_-........_
........................... - ......
....... ..... .........
................. ...........-..................-.

WIESllG.ATIOH REFERRAL M.EMOAANOUM
L

.. ..............................__
........................................-...._
,........,_._..,.. .. ..._..._,.,..
..........

_ ....._.... _

-~
~---

. ...................lfl .......................... . . .

...__.,......._.... .. a... .............. ........

~---..- --.... _....,_
,.............,.. ............. .......,. ........
______....... .......................o..r..

......

~

. . .1111Ml......... flffolMl"'91M. . ........,-llo-U•
1. IW'OlllT FQRW;Jii6(016

Cba.ir, Pl"Ot. . •lonal Review Board

-....
_....__..._,
~

-~..--

t. ,,,,,,, ...._.._......................... _ _ _

.

~

•· il'Ot'fOllOUTY

Bureau

Chle.t, Jnduatry'
CO.pllance Olv.

H-&Jua.rters

QS-15

l. IM.1'lPI

.. n"l:f7-111Vl.$'TIGAT10fil

11'1teqrity

March l:J, 1967
1. llNill~~A

NIOIHOCIA'ill:W.

J

cc;

A.Tr

t.

...
"""'&lf'

l1Tl..E

°"'

.,,.., • ~\.Ill.US"* Jl9'0Rf lfCTl(lllll Oii' ""'
"'1VCllD"OR'*- A.S-ft111Ul....CO~•~OF •~Oii~ lllC1'0l.

. . . fl90lllr •

rora 16-00. l&, ae.port of 1.nveost.194tl06, viu .xbi.blu, to:
.U•lRa..nt. Dil'\9C't.Or ( Fir...ras. D;plosl,,.. ' Araon);
Chief, hrsonn.l Division, au.re11u H•adqv.rt.1"9;
Chi•f. l!aploye• and. Labor Rel•tions e~anch; and to

A•tista.nt Inspector General f or Inv•atl9atioru1,
Office ot I.nspector Gene.cal, De!putae.nt Of the Tr-sury

°""'
..""'......."""""""
...Rlf.Mj()ll,r.Tf'

WA!HffO'TOl<t0C l!Wtl 4llOf

11.

""fUJli OllJIHltk"!IORWIHldtMOdi

Exhibit A, Pg. 481

84
OUAA:TMCNT OF THE TA£ASU"' f
....._or Au-.. T-.c:o ,._ _.._.

_.. _

Report of lnve.ii9otion
1tlU. •

..-est . ., . .

...:snlilJlOo ......

.

t70171-01
~.-~"°'

i:ii) om:.-:m
o-..o-m
o ...... Blo•i.:a..- 0~1otWI' o -..

et al.

QCUtlff .,........

o~ jJ_~IC*f

D..,_.,,,

1 ATP Headquart.ers
...rv-

!«:le. S£o.11Jh' .......

lCIO ooc

...c:rrvrrr #llU.

l'OSlllCW MO '9110l

Ot1iI( OE llltlM

,_,.
In Kay 1997, Rai.8-a Otero- Cesario, Assistant ll\9~tor General
(IC~ tor J nva•t l g~tionc, roceivod a letter a ll991nq that
ai.p oy••• ot th• Burea.u ot Alcobol, Tobacco and Piroarma {ATP),
Nat.ion.al rlr••raa Act Branch, bad acted erroneouely and without
conip-•••.ioMl approval on fi ve Mt-pa.rate iaau.-.e. Tb• lett.r,
which vae authored by Eric K. La.rs.on of Tu.c:-a Par k, M.ar)rla.nd,
reque• t • tha Office o f Inspector c..n.ral to 1.nve.sti9ate th•
all99-4 A.Tr violations. I G Ote.ro-<:e..sario torv&rded th• let"t.er to
t.h• Director, ATP, vbo reques~ that the Off ioe ot Ina~tion
(OI) inqet.J9at.e ~ all$9"•t.i00&.

01 det.&rained that t.h• ATT e:.ploye•• retUTed t.o in th• first
all.,-a t.lon • • Minq sus~ct.ed of dut:royl.ft9 nicorda vere, ln
t•ct , contract eaployeea vbo vere hired to •••l•t ln the backl09
ot ~pervorJt that resulted from an inflwr or r991•t.r•t1on.a as per

•
Depe.ndlft9 on the year in quut.1on,. i f there vu
an incr..... ln any Hationa.l Firea.ras A.ct (NPA) fire.an
r99i•ttatlon.a, as •ll~ed .. th.is aay have be:•n an •djustaent as 4
result ot • different tor. nu.aber or re9i•tration clat.e tor tbtl
particular f1T'$U'W.

addr••• th• aecond all egation, ATF continued to r e9iat..r
w
eapon• aft.&r lSl71 becau5e the backl09 of parirvorlt that re.sulted
fro• the a.aneety period wa: very lar9e and t lint1 the dOCWDenta
required extra ti•e. In addition,. aoae individual• were ~ronted
extra t iling t1• • if they were out o f the country when t he time
expired tor filing.

To

-

Re9ardin; r...r..on•s third alleqation, the truthful intoraation
i n their
turn iah6d to (,.arson by •
and
reap.ct:ive letters involves a criain.al c.aae in Or-oon.
inve•tl9a~9d by ATF.
The suspect. John David Dudley. a ~ulti convicted felon, dealt i n n.arcoties and. ilJ.eg-ally poaa•aeed
fir••~ which included an H ' R Handy Gun.
Dudley vaa charqed
and e~ently plead quilty in rede.ral cou.rt on 'ed•r•l
fir.a~ viol.ation.9.

....

<I . . . . . . .

II-

•ii'Tt.. ,;;r.f

......

~J

u•· '

MID t

'f;._-.,,..•-'(6 . ..

tt>.fir1111'1.ACil

SA_._ D:>l
ll[J!Oi1 5('VWW. . . . ,

"'"
l!IA~

• lf ro;;. ~("C'})J ""'JOO ,.., 9l va:.;.

0i&..r1if "ID'Oltt

""'
801

• -I-'/'?

~

Oltt •

ll(WI&'

/D ·tf.

'7

I

Exhibit A, Pg. 482

85
Larson' a fourth alleip.tlon SU9'C}ests that ATP la u.aing the ·othe.r
111-.gally reg:ister firea.ras. Hovevu. tbl• cateqory
i • uaed "hen the co.put.er prcq:ra.a cannot recoqni&• a non.. ata.ndard
OOC\lM.nt th.at h.aa bee.n au.J::aitted for r119lst.ratlon. roe in9t.anca,
aoa.e rec)lat.ratlon• v&re actually tiled in corr•apondence, on
l a tt.e.rb. .d. If an ATF employee ente.rinq t:.b• infor.ation lnco tb•
c•t~ory'"' t.o

co.put.er enter• a P'ora l as a Toni 33, tbe pC09r&• v lll aasl qn
th• docu.e.nt t.o th• ·other • colwm. Tbe fact that the tor. is
•nte.red in t:he •other• colu.n doe.s not 11ea.n that th• tireara is

ille9ally re;iatered.
In hi• tifth a ll99a tion, Larson s t ates th.at a 09e ot t.h.• NFA
weapon• reqiat.ered ••Y be regist~red to deceaaed P•raona. While
it i a poaaible t hat, unknown to ATP, some NFA v eapona aay be
ro9iatered to docaaaed individuals, ~he inteqrity Of the NF~ is
incuabe.nt upon the individuals who possess legally raglatared

tirearaa to r•port deaths and rereqister the ve&pon.
In clo•infl, Lareon • WJ9e&t.& tvo solution.c to th• probl. . . he
cit•• in ht• all•9•tion.s. Hi s first reco. .endation ia to re•ove

17,000 "•n)' oth•r weapons• listed under the NP'A .
Although
Con9r•c• did •n•bl• firearas c lassified • • collector•' it.as to
be r•.oved t ·ra. the lfFA. eontra.ry to Larson'• interpreta tion it
did not aand•t.e their re110Val. Tberefon. it an 1.ndivictual
ve.a.pon ia S'Uft8St..:l tor r..ova-1,. ATP v ill conaider th9 part.icula.r
firear11 on a c.aae-by·-case basis and de.t e..na.1.M i t re.oval is

v ar·rented .

f'Urthe.rwore, to address Larson•s second solution, i t the ori9inal
re411iatration oC a tireara is aisplaced, the ovn&r need• only to
contact ATP to obtain another copy. T:'lere i• no need t.o r•r99i•t.r, a _ d there i.& no need to establl•h •n ••n. .ty period as
n
Larson •u9;:••ta .

• 91'011'&-0l
• t1'011'8-Gl'
970178-0)

- 2-

Exhibit A, Pg. 483

86
OfBQtlOlp:jI

gy

DNT.ttJCATI<W

On .J\Lne 10, 1997, the Office of Inspect.ion (OI) received a
...orandua froa R.lii•• Otero-ce&ario, Assietant Jnapector General
for Jnvutiptlon.s (JG), tbat re..te.rred a letter •ll99in9
aiaconduct by Bureau of Alcohol, Toacco and Firea.ras (ATP')
eaployM•· Th• coapla.int a..lleges tbat variou• nploy•u ot AT'P
have de•t.royed (and aay ba:ve 111.;ally added) Xational P-irearas
J\99iatration and Tre.n.sfe.r ~rd• (Mnrl"R), b.ave comaitted perjury
in letter• of re&pon&e to the co11plainant, and have been

n•9li9ent in removing firearaa r199i•t.ered to deceaaod
individual.a .

In bi& letter dat.d .May 10, 1997, Eric N. Laraon eeta forth the
tolloving allegation•:
1.

ATP aaployee& have deliberately destroyed fireal'll

re9iatration doeuaents that they are required by law to

uintain, •• noted in sworn t.est190ny in 1996 by ATP
Special Agent
•
In anely••• of data
aada pu.blic by AT7, I (.Eric 11. Laraon) found that
durinv 1992 to 1996, ATP aay bave aOd.S 119 or aor.
fi.rMra8 to Ue KFR2'R wbicb ve.re or19ln.a.lly r199iatared

on Pora l or rorw 4467 during 1934 to lt7l. tor Ybicb
ATP loet or deliberately destroyed t.be o r i91nal
record.a.

2. A'f'P . .ploye:es reqiste.red a..bost 2,500 WU"e4Jlstered
MPA f~rearaa on Pora 4467 &.tte.r 0.C.•ber 1, 1961,
vi t.hout proper autbOri.zation by t.b• eonqr. .e. in
addition to not being authorized by t.he O)nqreaa, such
reqiatrationa vere probi.bited by the supr. . . Court in
1971, yet it appear& that ATP rectl•t.red 172 or .ore
unreqiatered lfPA flreu-as on Pora 4467 after 1971. I
have included an exuiple of one appar•ntly ilt.99al
poat-Deceaber l, 1968, Fora 44 67 regiatration in ay
te•ti•ony .
·

• a.nd
• co.aitted felony perjury in lett•r• vritten to . .
dated ,..rch 23~ 1992, and July 29, 1993, reapectively.
and
each alleqed that •an unlawful
trafficker in d.ru9s vith an exte..naive criainal record;
vaa in poaaeaaion of a .410 bore H ' R Handy-Cun ""hile
coaaittl"9 drug violations.· 'l"bia alle9ed inatance of
criainal conduct va.s used t.o deny ay ,petition to r.90Ve
the H ' R Handy-Cun froai the M7A •• a colleccor•a i~.
In tact, a P'reed09 of lnforaation Act r9q'U••t disclosed
tNt. t. t.he Handy~ vaos recovered tree an acquaintance
of' t.he trafficker, vho said tba.t the t.raff' l c.ker Md
3.

AT7 ••ployees

- t "JOl'fl-01
• - 91011&-02
- t 101l.'"'°J

-)-

Exhibit A, Pg. 484

87
91ve.n it to hi• for saLe-k. .pinq (see pag•• 212-215,
222-2l0, and 2ll-2l' of wt 1996 te..at.iaony). Any person
vho petition.a tor reaoval ot a fire:ara fl"Oll the NPA
auat a Ute t.h• r.a.a oos un4e.r penalty of perjury. '1'be
pla in la~ge of the statute at Title 26~ u.a.c., S
5161(1) and S 5871 applies to any pe.r-&on v'ho knovi.nqly
or caus&a th• aa.ki.n9 of a f.Ue entry on any
docuaont required to be pre:pa.red as • rea\llt of
actaini•tui-ng the MFA, inclwilng tbe 199al decl•ion
r9o4J&rdin9 the cl.assification of an HPA fire.ani. Both
and
deliberately falaified th• tact.a
of th• cas• they cited.

aak••

4 . Certain •reqistration activity- that ATP c1aa•ifi••
•• •0'1'1.11t:R• coul4 include r..;istrationa of firearw• tt\at

on• or more ATP e11Ployeea re9istered contrary to l aw,
be.cauae ATF haa refused to disclose the nature of this

•re9letration activity.'" To the be.st of my knovlW9a,
I've never haard of any foraa n\Ulbe,r-41 other t.ttan l, 2,
.3, 4, 5, 6, t, 10 or 4467 being used to re9lat•r or
tranat•r NPA firearaa. According to a letter to . .
dated January 9, 1997, froa MFA Branch Chief
, th• ·OTH!:R· category is •coapricod ot
r~istr•tlona Vb.ere tbe for. nuabe.r is different fro•

h••

th• other onea tabul.ated. •
• however,
declined to provide the naaes or nuaber• of
forae. CO\lpled vitb the other evidence of r99i•tration
•Uaa.na9..e.ot I have docuaented, it •wear• th.at th•
·~ ca.t990.ry aay represent fir~ t.bat ver•
r99iate.red ill,9 9•1-l ,y, •• noted in sy 1997 uati9ony.

th•••

It appe•.r • that a siljfD.ificant nuabar of tfPA
flreand are C\lrrently registered to pers ona Vbo are
deceased, and that ATP b.aa been ava.re Of thl• fact
since at 1.e••t 1981 and done not.bing abOUt it, •• noted
in •Y 1997 teatiaony. Consequently, a ai9n1fica.n t
n\&111:>9r of NPA tlrearwaa are nov ill•9•lly poaaaaaed, in
eo•• inatancea by persona who are un•ware they are in .
violation of the lav. The reason ic that •any tir•araa
cla aeitied • • •Any other Weapon• Aro rare collector ' •
it•. . that •any people do not concid•r weapon•, ••
not.cl in both ay 1996 and 1997 testiaoniee.
5.

(.txbibit 1, Lareon letter)
on July 10, 1997, specia l Ac;ent (SA)
~
, ottic• ot
~ftllP9>Ctlon (OI), interviewed Office of Chief Cou..na•l Attorney
ATP, vbo re.lated tlKI follOWincJ tact•:

.. f'lOlll-01
. .. 9l01l.-02
• 'lOlll"'°J

-·Exhibit A, Pg. 485

88
i• currently .-ployed by Aff, aa •n Aasoclate
Chie f Couna•l in th• Office of Cb.id eou.n.el in
Vaahinqt.on o.c. H• la ava.re ot an i.ndivid·u.al by th•
na.. . of Eric Ler•on, whom be baa spoken to and
correaponded "1th co.nee.ming iaaues re.lated to
pa_rticul.a _ ti.rearaa, apecif1-ca.lly, the 8 • a Randy Gu.n
r
abol4\1J' a nd th• Marble

Accordi119 to

ca... c.tt.r.

Laraon baa i.e.n -requutln9

inforaation on the Handy Gun and. th• Marble G&ae Gett.er
aince approxiaataly 1986 or 1.917. IA.r•on b.aa requaated
that th• e ' R Handy Cun be r..av94 fi'oa the National
Pir•ar11a Act (~PA) arquing that the firear. ahould only

be claaaitied as a curio or relic subj.ct to the 1968
Cun Control Aot.
ha• debated the iaaua with
Laraon on nWDe.rous occasion.9, both v.rbally and >ln
vritift9. Purthermor•, wbenev.r· x.ar.on Ma contactltd
ATP v ith a question or requut, An baa provided th•
intor.ation available.

Regia.rdJ"9 Larson'• tirat a.l.legation,
aut.ed
tbat the conclusi4?'na Larson draws troa
~
te.tJ.aony aay be i.nc:orrect, and rec~- 1nded th.at
be contacted for the correct r•poc»e·

tn ra•pone• to the third al.leqation,
•tat.ad
that Mithe.r no-r
•
perjured
th. . . .lv. . in their letters t.o Lar'IM:la. n. in.toraation
re.t~red to in . . c:b lett..r, (
letter dated Karc:b
23, ~tt2, and
letter dated JU.ly 21, lff)) i•
trv• and correct based on th• .fa ct:s a t the ti.aie.
and
o.r the ri.r.ar.a Tecbnoloqy
&ranch authored the letter tor
r . .pon.e.e. La.rs.on
refer• to a violation of 26 use 58,1(1) and 5171 by
ancl
stated that U i• u.navar• of
any violation in these tvo law• .fr09 corr. .pondenc.
between
or
and Lareon.
r••J><>nded to Lareon'• fif th all~et!on, which
refer• to inaccuracies in the IO'RTR by e.xplaininq that
t.he Nl'RTR only retlecta cbanq. . in ~ record vhen an
individual leqally transfers and r -viatere a pr·e vioualy
r99i•tered vaapon. Th• H'FRTR ha.a no vay of detectinq
bov aany tbea a tirear. aay have been traMferrad
between the year& 1940 and 1961 Ul'll. . . tbe tran•f•rti
vere r·e corded in t.he NTR!'.R. •
~ atated tl\at it
ATP vere to allow periodic

a.ne.sty

periOISe, •• Larson

•V99••U, t:.he MPA aay be circusvent.4 any nuaber of
ti. .• by individual& in violation of the i.v. ror
exa_miple, a person could obt&in a fir.ara 11199a lly and
- 97017&-0l
- 9l017a-02
- 9'101 ll-Ol

-5-

Exhibit A, Pg. 486

89
vait for th• a.an.st.y period to reqlater the illegally

obC&iMd firun.

explained that vbe.n the orl91nal ptipervo.rk
for a r~laur..:I tlreara is lost, the OVMr .-rely h.a•
to contact ATP' to obtain copies of the ori91nal. It •
flrear9 i• already rt!9i&tered, there la no n•od t.o reregl•t.er the flrea.n.
R.99arding t.araon'& tir·s t solution,
explained
th.at ATP 1.e not required to r..ove • fireara fr09 th•
NrA it dot.er.ines that th• tire.ars i• not likely to be
~••d

•• a veapon. ATF did not drav thia conoluaion
re9ardincJ the R ' R Handy Gun.
atated that
if Congr••• vanta to reaove the veapon• fro• the NPA,
it h•• the authority to do a.o. In the late 19SO'• or

early 1960 •a, Conqre.ss did lower the tax on tho •any

other vaapon• category fro• $200 to $5. Th• cata9ory,
bO\Hlve.r, vaa not ra-.ovad fro• tbe lfFA. Th• H ' R Handy
Cun baa t:h• e.a ae conriquration •• a . ..,..,_-oft 1hotqun
and i• readily concealable. Thia confiquration •ak••
the fire•r. an unlikely eandid•t• for rnM>Yal froa tbe
MPA.

stat•• that Larson's secOnct solut-1on, mat.

tlM s.cretary of the Tre&sQry grant an ..ne•tY period
•• in 19,1, is very unlike.ly to occur tiec:.u.M anot:her
aane.8t;y period i• riot varranted. Moreover, a nev

aane.aty pe~iod could jeopardize pe.ndinlJ inv. .ti9atlona.
Tb.i• would also be an opportunity for people to avoid
paying th• tax to transfer the ~· fte 19'•
..,,._sty vaa ori9lnally enacted to provide t.be publ-lc a
~rl•f opport:unity to cat1ply with the NPA •• ••anded
th.at Y••r. 'ftle 1968 a.ane&ty period ••rv~ it• purpoM,
and th•r• is no leqitiu.te reason for anoth.r aa.neaty.

vith th• above su.-ary of hi•
SA •
p r•••nted
stated under oath that th• tact.a
stat.. .ent, and
are true and correct to the beet of hi•
contained in the • u. .#ry
knovled9e and belief.
on July 14, 1t97, SA
interviev-4
•
office in th• "'A lranch.
advised SA
tollovlf\9 intor.ation:

ot

•t hi•
th•

_ •t.at.ed that he bas bM.n -.ployed by ATP for
t.he ~·t 25 yaar& and has been •••ivned to the MPA
Branch for approxiaately 16 ye.a.rs.

- tlOl"tS-01
• - t'J0111-02
tlOlll-OJ

-·Exhibit A, Pg. 487

,.

90

He i a avare of an individual by the ,.._ of Eric Larson
and ha• •poken vtth Larson a.bout sU.t.i.atica concerning
veapona .
stat.es that La,rwon b&e been
vritinig l ett4r• to ATF for aany yea.ra reg&rdinqi KPA
"9.apon.e, in particular the B 6. a Kand:Y Guin .
tfFA

1n r . .pone• to i..ar.on•a rirst al1eqatlon. reip.rdi.D;
teatt.ony in U.S. District c.ourt,
. .de r eference to c..rte.J.n d ocuacnta belnq d•troyed at
the HPA Branch.

.. stated he aad.e tb• comments

in refe.rence to thousand& of Title I.I tir. .rae

manutacturM by
that were be.1"9
exported to
various ...nuf&cturer• were
forvard1nq the .,._pervork for these f1rMr9e. However,
not all or th• papervork vas entertMS properly into th•
NFA ayat... It vaa su.s pected that •~ of tbe contract
employ••• had destroyed some of the d~te in an
effort to reduce case load.

••Y

•

adaite that

x..araon
have construed fro• hi& teatimony that ATP
employee• vere destroyir19 docuaents, but thi• vaa not
the c••• ·
auqgested that if there vaa an
iner•••• i n any KPA f ire.rm r99istratione, it . .y bave
r••ul ted troa tbe. chanqe.s .a.de to re.tl.ect. different
form n\&abara be.lng located and entered or t..l"09I the
tranepo9it ion of regis tration dates oo ~ ori9inal
fora. SUCb cb.aft9.. voul..d ha~ been added to the .-rRl"R.

t.ben. addressed the second alleqati.on in the
le:ttv, vbich concern& the f ili119 Of the proper
paperwork for MFA rirearas d1>ril"9 the - Y peri od
Congr••• enacted in 1964. He explained that tb•
bac.kl09 of papervorlt received a.a a rewl.t of t.be
-..nuty proqru back in 1968 vas very 1ar9•, and the
filJ."9 of
docuaent& r~ extra ti.e in orde.r
to get the r~i•tratlons doeuae.nted. In addition,
paperwork vaa a l so received late, bec.u•• certain
9roupa ot individuals ver• 9rant.e4 an extended ~iod
to f i le the paperwork. These individual• vould have
been qranted extensions if, for ex6,llple they v•r•
over•••• vhen the aanesty peri od oloaed .

th•••

Ra9ardl,n9 the fourth allegatiOn,
•tat.cl that
lA.r •on i • r eferring to the &tatist.1C9, aaint&ined by the
HPA Branch. 111• ·othe~ catc9ory t.areon refer• to i n
bl• letter l• a category desi9nated by ~ C01tp.1tar
proqraa t hat produces statistic& vbe.Q. a et&ndard form
nuaber l• not provided . for instanc41, an i ndividua l
anterinq th• inforaatlon into the ATT coltl)Uter . .y
ant.er a P'ora ) as )l. This fora vould th9n be placed
in th• •other· category. I f an •pplication for
• t70171-0l
• • t7011a-02
• t70J71-Cl

-7-

Exhibit A, Pg. 488

91
ret1..tra tlon wen received in correspondence on
letterbe.ad, vit.hout a for. nu:.be1:, tble vould also be
placed in the ·other"' cateqory. The tact. Ch.at the for.
ha• bff.n pl.•c.d in the "other* cateqory doea not ...n
t.h• tona cannot M loeotl9d. All reqiatration
corre•pondence is nuabered and identified for proper

tu1..,.

In reepon._. to the fifth alleqation,
• • • • tat.cl
that i~ a poa•eesor of a leg-ally reqiat.~ NPA v eapon
paaa. . avay &nd the bene..ticia.ry ot the eatat. vants to

re;iatar that fire&n1 in his or her naae, ATP vill do
whatever ia nece.ssary to assist t.hat individual i n
re9iaterin9 the tireara.

The individual needa only to

contact the NFA Branch, and an ATP eaployee v ill asaiat
in any vay .
aaa.ertd in response to Laraon'e ti.rat aolution

tnat ATP vill not arbitrarily raaove any firea_ras f ro.
the NPA . Conqreaa baa the authority to do ao and, if
Conqr. .a de... 1t nee.s.sary to ra.ove ao.e or t.bue
fireara., i t vill do so.

In ruponse to Lare.on• s second solution, he at.at.ed that
ATP' v ill provide anyone copies of reviettation foraa
f or doci.menta that aa.y have be.en a ieplaC*S or lost.
Another aaneaty period has been di•cu•Md by COf)9%'. .a,
t.be White SOUM, and HF; boveve.r, t.be id. . vaa
rejected bacauM of pen4inq lnve•ti9a tlona and other
reia ted to the registration probl... t.be.t aay

i••u••

ari•• ·

SA •
provided
statuent, and

vith the above auaaary ot b.ia
stated under oath · that tb• tacu
contained ln tbe a uaaary are true and correct to the beat Of his
knowledge and belier.
On July 21, 1t97, SA
int.ervieYed
_
Industry Co11Pllance Branch.
" ad.vised SA

• Chief of the
• that he has
•l)Oken vith. L&reon on the t.lephone concerni1"19 t.h• re.oval ot the
H • • Handy C~n.
also advised SA
' ot tbe follovi.nq
t acta:

He vae the Cbief of the KPA Branch in 1996 a nd ltl7 anc:t
vae unava.re ot any docuaents beinq d••troyH by any ATP
. .ployH.

At that t i. .,

SOiie pa~k

va• alaelnq and

ao.e contrac:t uiploye.e:s; hired by ATP vere a\lapect.ed of
a ieplaclng ATP pa.pezvork •

... t10111-0l
... t 'f0178-02
... 91017.....0J

- a-

Exhibit A, Pg. 489

92
• t • led that tlM Handy Gun bu a conti~atlon
at..llu to t.h• Nved--oft or short-barreled ahotqun.
likevl• • au.t.d that it is. vitbin tbe purview of
Congr••• to reaova th• fire.an. fro. tb• M~A.

He

Fi nally,
also a t.At-ed that vhe.n tbe pa,pervork tor
a 199ally regia·tered HFA fire.ara la loat, the owner
ne.d on.l y contact ATP tor copi•• of th• ori91nal. Aff
baa tho oriqinal docu-.e:nta, and a copy can be torvarded

to th• leqal owner.

Another aaneaty period tor tho r~iatratlon ot ttPA
vo•pona auet be authorized by conqr••• and tho
Secretary ot the Treas ury.
SA
preaented
vlth the above au.aa.ry,. and
stated
under oath that the tacts contained in tho •UJlllar'Y are true and

correct to th• b4at or his knovledgo and belioL.

to !Orie Lar-.on dated 3uly 29,.

(exhibit 2, lAtter fro.
lttl)

on .July ll, 1997, SA

conUcted Eric Lare.on by telephone to

arr•ntJ• an interview concarnin9 hi• correapondonce to the :re.
Ovu tho telephone, Larson stated th.at HPA etatua of a firea.r-.
known •• th• ca.. Getter put bia over tbe edqe on t.hia iasue. a.nd
h• felt that there sbou.ld be orM person l.n tbe Onit.ed States chat
atand.a v.p tor what he believes in. Larson atat.ed that he work&

for t.he Goyernae.nt Accounting Office (CAO) in the a.ectlon that
audits ATP. Larson added tllat he ia not involved in t.he audit ot
ATP'. Re •tat.o that he vould like to M-et v i th SA
and he
vould try to think ot anything he aay have for,otten to put in
hi• lett4:r to the IG.
, Chief ot the
on AU9\1at 1, 19t'7, SA
interviewed
fir·e en• Technol09Y Branch,. ATP.
atated that be ha• bee n
employed by ATP aince Nove-..ber 1972 end knowa of Eric Larson .
adviaed SA
ot the tollowinq:
Th• letter that Larson r efers to vaa authored by ATP
Counael
from inforaation obtained by
Assistant Cbi•f of the Pirearwa
Tech.nol09Y B~aneh.
atated that if Congress vants to chanq• th• lav as
it pertains to SC*e- NFA weapons. h• would have no
probl. . vith it. conqres.s has the authority to aaend
tbe lav vith re.spect to MFA weapons. If the lav were
chenqed, ATP vould adhere to vbatev•r c:bange va• . .de.
-

,70178~1

- 970178~1
- 970178-0)

-·Exhibit A, Pg. 490

93
He added that ATJ' voul<l help, in any vay poe•.l ble, an
ln4ividu.al obUin proper paperwork for Hl'A

regisuatton.
( l:xhibit l, lAtter frOlll
J), 1992)

on Auqu•t 1, 199·7, SA
interviewed
, O\ie.f of
U'le Firearas end Explosiv•s Regulatory section, ATF.
lnform.e4 t.hat h• ha• been employed by ATF for th• pa•t 25 years
ond ha• bee.n in hi• curre.nt position since January 1996.
•tatcd that h• Jtnovs of an individual by the nu• of E:ric Larson
and has vrittAin a reoponae letter to Larson.
advised SA
of th• tollovinq:

With rogard to t.areon•a f i fth all99atlon,. if th•
relatives of • deceased person notity ATP abOut the
death of a f'ir••t11 o\lfller and wish to rere9i•ter th•
tirea.na, ATP will help, in any way it c.n, to
facilitate the reqistrat ion process. Kovaver, the only
vay ATP vould be aware of &09e0ne's paa•inq avay 1• if
the faaily of the deceased. advised ATP.
rn reepon. . to Larson'& first solution,
i• not
av.re that ATP ~n l~elly re90ve MFA tJ.rearas wit.bout
the approv•l or ~e congress.
In reapon•• to Larson's secend solution, ATF do&• not
have th• authority to establish a 9042.ay vaitlnq
pe.riod. If tb• orl9i.na.l copy of th• KFA reqietration
ia loet, th• ovner of the fir...nt need only contact ATP
and a copy vill be provided .

SA
provid~
vith the previou.c SUIDl&ry, and
stetod. under oath that:' the facts contai~ in the euaaary are
tru• and correct to the best of his knQwledge and belief.
on Auquat 1, 1997, SA
interviewed
, Chief of
the National Pire1t.ras Act Branch, ATF.
•t&t•d that &he
has been e'll&)loyed by ATF for 11 years and has beGn in her current
position since March 1996. She knows of an individual by the
na11e of Eric Laraon and has had corresponded with hia.
adv ised SA
of the follovi09 :

In reference to Larson•s first allegation,
atatad that ahe is unaware of any ori.9inal docwnent•
bein; deatroyed by any ATf' eaployees. "l"h• t.aeti110n)'
concerned
qiven in U.S. District Court by
.
contract . .ployee.s hired by ATF ~ were au.spected of
deatrO)'incJ or a isplacinq ATP doc::u.e.nta. S\lch activity
- 'lOll&-01
• - •10111-02
- tl0118-0l

- 10-

Exhibit A, Pg. 491

94
1• by no . .an• recent and
•90.

occurred vell over I year•

R.eqard.1 nq Laraon•• fourth e.lleqation, th• ·ot.bv•
c:ate9ory of registrations is used to c:.&ptur• nonet.andard docuae.nt.a. For instance, lf a rorw ) la
entered •• a Fora ll, th• co.put.er aottvar·• would
autoaatically place the fora in the ·otbU-- coluan. If
an indlvidQal r11. . a r911iatration on corr. .pondence
'ttitb letterhead, the entry is al.a o ent.ared •• •other.·

P'Urthermore, if error& are located, they a.re corrected..

concernin; Larson's fifth a llegation, it beir• or
executor• of astat•s of deceased individual• wiah to

tran1for le9ally registered firaarm.c to th. .aalvas,
they •uat contact ATP. ATP vill conduct a query for
t.he individual and the particular t1raara and adviae
the individual of the procedure to reqiater.

It an

executor finda a firaa.ra that is not reqi•terad, ATP
will adviae of a.bandonae.nt procedure• for the vaapon .
atated that faaily of the d•c•••ed 90
thr0U9b enc1U9b v ithout havinq to worry a.bout firea.ras
they
unaware of.

v•r•

ln reapon1Je: to Larson's first solution, Levin• atated
that ATP abould not aake a blanket r..oval of ae.e
17, ooo tlrear.s classified as ·any otber weapons.• Sb•
su99eated t.hat so.e of these v u .p ons aay be look.cl at
on • caae•by-case basis and e.xaained individually tor
re.oval fre>11 the Nf'A.
Re9arding Larson's s.cond solution, copies of lost

reqiiatrations are reque;sted by reqlate.red ovnere and
th• request.a are responded to. There vould be no
reason for another aan..-ty poriod, as it would aerve no
purpo••·

SA
provided
with the previous suaaary, and
stated under oath that the tacts contained in the auamary are
true and correct to the best o f h er k.nowle<l9e and belief.
(Elthibit 4, lAtter fro•
January 9, 1997)
on August 1, 1997, SA&

I
and

Eric Larson and b.1• attorney.
fOllovJ.ng:

to Erle t.araon dated
01 , . . t wlth
Leraon sta ted the

K• had nothing to add to hi5 all99atlona, and he f•lt
be had tiled everyUli.ni;i that pertained to c.he i ssue.
- t l 0111-0l
• - t10111-02
t10J1S..Ol

-11-

Exhibit A, Pg. 492

95
He stated that he received the c.&M 1ntor-aat1on
r•f•rTIMI to in bis tb.ird •ll99ation through th• rr..aoa
of JntorMtion Act. 'lb.ls vas tbe only c.aae pertalni.ng
to the i•aue th.at he had received, and be t'e.lt t.b.at ATP
bad no other cases perta..inincJ to the at.u.M o·f the R '
Jt Handy Gu.n.

intervieved
,
on Augu•t ' , 199"1, SA
Asaistant c:taief of th• Firea.r11S- hchnOloqy Branch, Vbo ha• been
stated. tb• follovlft9:
e11ployed v it.h ATP since 1'73 .

He knova of !t'ic Larson andi bas su,pplied info:raation
about the H ' R H.a.ndy Gun to the office of Chief

counsel tor responses to Larson's inqUiri••·

The case

cited by Larson refers to a case fro• the Portland,
Ore9on, Po•t of Duty in wbicb an H ' R Handy Gun with a
••tal cann.-bie l eaf taelced onto the atock vaa eel.zed
durinq an investiqation. The firea.ra vaa take.n into
cuatody froa an acquaintance of an 1nclivldual by the
n._.. of John o. OUd.l ey. The case included a Title 26
char9• and a felon-in-possession chaX'9•· Dudley,
bovev&r, vaa not c:bar9ed vit.b pos.suaion of the fir~
1n question.

Ther• are nuae.rous cases across the united SUU.
lnvolvi.nq th.e crill.inal posse&aion ot &n II • R Handy
Cun. cited
other invuti9ation.e t:b.at he
la avare of that took. place betveen 1990 and 1992.
'ftt.ia doe. not preclude the possibility that ot.be.r
1nveati9ation.a . .y ha.ve be.en 9oin9 on that
vaa
u.navare ot. fttf\ tact that only one vaa pre.se.nt.ed to
t.araon under bl• Preedoa or 1~0.r.ation rt1qUeat does
not •e.n that there vere no othor 1nveati9atlorut ot
thi• aort taking plaee or that no ca••• bad been
adjudicated prior to Larson'• requut.

thr••

preaantad
with the previoua au.aary,' and
atated under o.th that the tact• contained in th•
&W11Aary ere true and correct to the be&t ot hia ,knovlod9e and
belief.

SA

ot th•
on Au9uat 5, 1997, SA
telephoned SA
Portland, or~on, Field Office about defenct.nt John Dudley.
auted the following:
He Jnveati9ated a previously convicted felon by tbe

n.a. . ot J"obn David Dudley or Ja.cbonville, or990n, in
1990. Dudley vaa suspected of . . t.h.allph.et.aaine
tratticklnq, possession of stolen property, and being a
felon in ~session of firearas.
- •1011a-01
- 9?0118-02
• 910118-0J

-12-

Exhibit A, Pg. 493

96
vae cont.• cted by a loca.1 task force concern.inq

Dudley att.r Dudl•y va.e stopped on a traffic violation
and tound to be in poa•-•ioo of an unr991atered pen
9W' and a Browninq 9 - ba.ndqun. Shortly ther••fter.. a
S t.at. •••rcb warrant va..a executed at the realde.nce of
one of Dudley'• . .soc.iatas .. • _
•
R..covued
from
were 27 fir.araa,. includ.lnt an H ' R RaM.y

Cun, Which. aloDCJ vlth a.ll of the othU t i r earaa
located, •ll~edly be.longed to OUCUey.
adviaed

authoritiea that Dlld.ley reque•t9d that
\ keep the
tirearaa at hi&
ra&ide..noe. Dudley vaa taken

c.a••

into custody, and
presented. th•
to th•
U.S. >.ttorney•s Office tor prosecution. Tbe Aaaiatant

U'nited States Attorney (AUSA) h.andliD9 the case decided
to indict Dudley on possession ot the t vo f irearaa
found during the traffic atop. Th• >.USA deeidi&d not to
i ndict O\ld.ley tor the other 27 firearaa that were

recovered froa
. Dudley v.. indict-4 for
violations of 18 O.S . C. 922(9)(1) and Title 26 5161(4).
Dudley wa• subsequently sentenc.d in July 1991 to 60
aontha iaprisorme.nt followed by 36 aont.ha eupe:rvieion.

(lxhibit 5, copy ot ATP Fora 1270.1 re.tere.nce nr l tl)60,- 90-405&
S.J

- t101l8--41
• - 91'011'8--41
t l'Oll&-Ol

-ll-

Exhibit A, Pg. 494

97
I.IST

or DJII'IT$

l.

IAt.ter fr<* Erle t.a.rson Tak.a.a Park, Karyl~# to tn.speccor
Ge.:Mral Valerie Lat.t, dac.d Kay 10, 1tt1.

2.

Letter

J.

Lett.er frOll
, Chief of th• Pirearas T•ehnoloqy
Brancb, to Eric Larson dated Karch 23, 1992.

4.

IAtter tro11
Chief of the Notional
Act Branch to Eric Larson, dated January t, 1997.

5.

Copy of ATP Poni 3270.l r.,ga.rding Job.n David Dudley,
inveeti9ation /93360-90•4058 s fro• Portland, Oreqon, Pield

troa O:lief of tb• Plrearaa and
lxpl091v•• Division, to Eric Larson, dated July 29, 199).

Firea.~

Office.

- tl0J'l8-<11
... Jl011'8'"'4J

-14-

Exhibit A, Pg. 495

98
May 10, 1997

Ms. Valerie Lau, lnspecror Genecal
omce or the Inspector Genera)
Depanmerit of the Treasury
1500 Pennsylvania Avenue, N.W., Room 24l2
Washington. D.C. 20220

Dear General:

I am writing to caJl your attention to, and provide specilic documented valid and ttli.able
evidence of, what appear co me to be serious lnstanc:es of mismanagement. misconduct and
illegality by employees ot the Bureau of Alcohol, Tobacco and fuearins (ATF) In
ad.m1nlstt.rlng our Nad.on•s reder.J gun control laws. I have pre.sent.ed. this evidence in
tE'Stimony to the House Appropriations Subcommittee on April 30, 1996.1 and on April 8,
1997.' I have enclosed a 0C>p7 or my 1997 t~ony for your convenience or reference.
All ot these ln.slances or apparent mismanagemen~ misconduct and lllegallty involve the
National F\reanns Act (NFA) of 1934, as amended, whicll is• stalUte that Calls under the Tax
Code of 1986, and thus involves taxpayer information. Taxp~r ln!onna.tlon is secret ww:Ser
Internal Revenue Service (IRS) Nies and the law, but under court Nies and criJnlnal case
law, pCO$ttUtoJ'S are required to disclose a.ny information that could be used to impeach a
government witness. Consequently, the instances I have identified. here appear to affect
«rtaln ~ ot prosecutions for alleged violations of the NFA. and in particular the alleged
nonregistration of NFA firearms.

Based on my 1996 and 1997 test!monies, It appears that one or more AT!' employe,es hoV<!,
in Che oourse or their official duties. oonun.itted a number of serious aces wtdch are contrary

1
•Statement of •Cwio or Relic' f\rearms Manufactured in or Before 1934 Which Att. Also
Classified In the 'Any Olher Weapon' Category Under the National F1rtanns Act (Nf'A) or
1934, as Amended,' by Ede M. Lanoa, In Tno$ury, Post4l Scroi«. and Gencul
Governrmnt AppropriatioM for Fi=1 Year 1!197, Part 5. Testimony or Members or
COngress and Other Interested lndMduals and Organlz.at!ons.
Hearinp Before •
S ubcommittee or the COnunlttee on Appropriations, House of RepresentativeS, 104th
COngress, 2nd Session. Washington, D.C~ U.S. Govenunent Printing Oflice, 1996, pages 37·

274.
"'Statement o n Proposed Removol or Certain F\reanns Manuflldured in the United States in
or Before 1934 from Purview or the National Firearms Act (NFA) or 1934, as Ametlded, ond
Their RA>casslllcation as ' Flttarm.s' as Defined in TIUe 18, U.S.C., Chopte< 44,' and "Erro'"
in the National Fl.rearms Registration and Transfer Record: A New Amnesc.y hrlod May be
Required to Correct Them.·

9701 78

·

EXHIBIT NO.

I

Exhibit A, Pg. 496

99
IO law. Conlqumd)', I would like to respeatuUy ask )'OU to CONkltt conduc:tir>g a Criminal
. . _ , . _ ota nwnber olspeci5c imwloes " ' - l<appean lhal ATI'~ - . . . i lhe law. ~ tho naiw. ol theoe posslN<-.-_ I t _ . Iha< it lnOJ be
foe ,.,.. to COMldtt conducting a r - ol lhe Nadooal Flranns
~Ind 'l'ransfer Reconl (NFRTR). as lhese data rn., have been W.gaUy crulld oc
altered. It...., alao be necasazy to have ouch a foremic aodit cond- by an entil;r which
la l<l<ally bodept11clenl from AT!', to a"°id aey coa1lic:l ot" ' - that woWd ~ .....it
!rom allow!nc ATl' to invmigale i<sell.

n.... aped.lie allqed acts are as follows:
I. ATF •mPIO)'oea have deliberalA!ly destroyed original llttarm ttPtntfon documen'" that
U1ey are requll<!d by law to maintain, as nored in 5"om ....Umoey in 1996 by ATF Special
Agent Gaiy II. Schalble.' In aialyses or data made public by ATF, l found that during 11192
to 1996, ATF 1nOJ have added 119 or m0<e !!rearms to lhe NPRTR which were orig!nal4'

au-

n?gisWed on Form I oc Form 4467 dllMg 1934 to 1971, for wlllch ATP lost or delibel'alely
I

desiro,ed the odglNI tte0nla.

"1-

2. ATP em""'1ea rqilCettd W - 2,500 wtttgislered Nl"A II.rearms on Form +161 after
December 1, llle8,
proper
by the Coner-. In addlllon to no< being
au<horhed b)' the
such ...gislraOons were~ by tho S..pmne Court In 1971,
lha<ATI'~ 172 or more~ Nl"A llreannaon F'onn 4467 after
19'1L I have lndQCled an uample ofone apparend.J iUep1~1c1 n.-. 1, 196l Form "67

,...it_.

eonc.....

I

rqj.saadon In m:r 1097 - -·

3. ATP employeeo Ed-.! M. 0....., Jr. and Teny I. Caroo c:ommlUed fdcrlT perjllf7 In
lelWO wri- to""' March 23, 11192, and July 29, 11183, ~. Mr. 0..... Mr.
each all<eed that •an unlawful tnllkbr In drup wilh an .. criminal
recon!' wu in - - o n or a .410 bore H&R Han<b'-Oun 'wNk commltdng drug v;ol.od<l<ls.•
'lllls alleged INtance ol almlnal conduct was used to d<!iy m:r pe<ldon to Rmove the H&R
Handy.Gun from the !IPA . . . collector's item. In
- m ol Wormallol'I Ad.
request d.loclOled IN< die Handy-Oun was recovered from an o.cquatn<anco or the tnlllcker,
who said dlat the tnlllcker had gl""" it to him for aate-lcetplns ( ..• P18.. 21Z.216, 222-230,
and~ or my lll96 le!Jlirnoey). Aey person who peUUons f0< removal or a llttarm from
lh• NPA muot lt.IU lhe . . . _ undor penalty of perjwy. The plain language or the at nue 26, U.8.C., t 6861(1) and I 5871 applies to any .,.._ who knowingl1 makes or·
causes !ho malc!ng or a r.is. ontry on aey document required to be prepa...d u a .....it or

c.r..

race. •

'Uniled Su.u. oa. JoNi Dani<l LeoSun, Criminal No. t:96CR54, Newport New', ViqiDia,
~ 21. 1996. 1nnoa1p< or Proceedings bef0tt 111e lloaonblo......, A. MackmD<. United
SWes llioCrlc:1 Judie. Uoi<ed SWes c.,.,,,. ~ Dbaic:t ol Y1rS1nia. Newport llews
Oi¥ision.
2

Exhibit A, Pg. 497

100
administering the NFA, including a legal decis5on regarding the classification o! an NFA
fir<arm. Both Mr. Owen and Mr. Cates delibe<alelY falsified the facts of the cooe !hey cited.
4. Certain ..registration ac:tivi~ that ATF da.ssifies a,, "()TH£R• could include registradons
of fireanns tJtat one or more ATF ernployees registered ooncrary to law, because ATF has
refused to di.sci°'"' the nature of this "registration IM:Dvity. • To the best of my lmowledge,
I've never heard of any fonns numbered other than 1, 2, 3, 4, 6, 6, 9, 10 or 4467 being used
to register or transfer NFAtirearms. According to a letter tom~ dated January 9, 1997,from
NFA Brandl Chief Nereida W. Levine, the •011f£R' category is •comprised of regi.str:ations
where the form nwnber ls different from the other ones tabulated.• Ms. Levine, however, has
declined to provide the names or numbers of these forms. Coupled with the other evidence
of re.gisttation mismanagement I have documented, it appears that the •OTHER• category mq
represen1 llreanns that were ~ w~. as noted in my 1997 l<Stimony.

5. It appeus that a sitpUlicant number or NFA firearms are currently registered to penoas
who are deceased, and that A'l'F has been aware of this fact since at least 1981 and done
nothing about it, as noted in my 1997 testimony. Consequently, a slgnilicanl number of NFA
firearms are now illegally possessed. in some instances by persons who are unaware they are
in violation ot the law. The reason is that many t'ireanns classified a.s 'Any OChtr Weapon•
are rare collector's items th.at rrumy people do not oonsider weapons. a,, noted in both my
1996 and 1997 testimonies.

A'l'Fs most recent data (as of December 3 1, 1996) disclose that or the 14,269 firearms
registered durizlg 1934 to 1939, exactly 11,175 (78.4 percent) a.re still cunentty owned by the
person or government enlity that registered or acquired it during that same time period. And
of the 58,904 firearms registered in 1968, a SIUnning 86.4 percent ano still owned as or 1996
by the same persons who registered or received them by transfer in 1968. ConsSder Chit in
1981, an internal ATF study reported:
We ha~ the condition where people who registered firearms wuler Che original
Nalional Fittanns Act at aie 65 would now be 112 years old. We know that these
people are dead and thm heirs have not taken the necessary steps to contact us so
that the involWltary transfer created by the registrant"s duth can be fonnalized.'

One result or ATF's negligence is that some persons who own cert.Jin rwe. valuable 6rurms
that have .special value to collectors have been instantly transfonned into criminals.. The:
reason is that through natural di.sasters (such as the recent Qoods in North Dakota. house
tires, and similar tragic events), the owners or the$e fire.arms have l~t their copies or the
documents which p rove their lawful ownership, and the 1aw does not allow these drearms
i

'"Status Report: NaUoMl fuea.rms Registration and Transfer Record (NFRTR); by Deron A.
Dobbs. internal A'l'F report d~t.ed July l, 1981.

®

3

Exhibit A, Pg. 498

101
IO be ><>lunlarily ,...~ I b<Jlew lheft an: - pOSSll>l• 10ludons io lhls problem. and
Mlllwr nqulra lep.iadon. The ~ is that 10lu1lcn ....,. be adll....i by
odbl'"' "'°pan ot AT'f'. 'lbe5e ooludom are:

L Mmln151ndvdy ttlllOYing approximaldy 17,000 •cur1o or ttlk" llreanNI d•mfied
weapo11' under !ht NFA, which ,..,.. oriclnall1 cornmerdally
,....,..-..., 1n or before 11134 (but- replicos tha-.ol). The Congress ddermined
that lhMe ·1111 other w.apoa' lirunns ....., ,..;nJY eoUoctor'a ilelN and not lilcdy
10 be used u weapons in 1960. It was M< W\111 1008 that !he Conpess passed
lql&lal!on enabling theK lirunns IO be removed from the Nl'A u collec:tor'a Items.

u "an1 ochtt

2. Ealablbhing a 9().<11,y amneso;y period IO lllow pereona who ....,. have Innocently
lost their coploo or the ~on rorm IO n>rCgUoter these ftrcarma. The Congress
hu authol1ud 1Uch amn051¥ per1ods to be estabu.Md by the SecttWy or the
n-w,. under t 207(d) of the Gun Corurol h:t or 1968.

Por the past aeveral Yean. in response IO my peddcns or ffi1Ucat8, A1l' has refused IO
lmplemenl either 10ludon that I haw propooed. I b<Jl<w that r<mov!J1c these liturms Crom
Ille NFA Is Ill\ Idell toluliccl. but also belleft an amneoq period ....,. also be an
-....i-101u11on.
.
11- - - w\11 lake prompt aclioll IO the problems IN1 I have documented. If
,.... fUnhu quesCions, ...... contact me.

n...u..,.....
Vf!lfJ INl1 yourw,

~~~
M.
IArwon
P.O. Box 648'7

Eric

Tlkot'M

Park. Maryland

20913

(301)~

cc: The Honorable Janet Reno
"-Y~
Dept.nment
Juscice

or

The-•BlDArcher
a.airman

-

Conunl- on

w.,. and Means

Exhibit A, Pg. 499

102

DEPARTMENT OF THE TREASURY
8U ACAU OF A LCOHOL. TOBACCO AHO FIREARMS

.A.l

z9

1993

Kr. Eric K. Larson
Post ottice Box 5497
Tako.a Park, KD 20913 -5497

Dear Hr. Larson:
This is in reaponse to your July 12, 1913, ,Lol1ov-up letter
to Treasury secretary Be.ntsu. xn. your l•tter you take
ist:ue vith our response, on secretary's Bentsen'• bobal.f, to
your June 14, 1993, request that the B 5 R Handygun be
removed froa the National Firearms Act (HFA). •
H ' R Handygun.s currently fal.l vithin tha •any other vc.aPQn•
cateqory ot NPA veapo~s. As de.fined in 26 U.S.C. 5845(•)_,.
1
the term •any othor woapon" means:
{A} ny wea;pon or doviee capable of beiDq concealed
on the pel:'Son fro• vhieh a &hot can be di•cha1"9ed
thr ou9h the enQr9Y of an explosive, a pistol or
revolver having a barrel with a SJIOOth bore d•si9ned.
or redesiqned to fire a fixed sbotqun sb•ll. • • •
Such tera sba.11 not ·include a pistol or a revolver
having a. rifled bore , or rifles bore&, or voapons
de.siqned,. •a.de, or intended to be ~ired troa the
shoulder and. not capable of firing . ~ixed amwnition.

The weapons meet this def inltlon l:>Oea\18e

o't tbili

"

concealability on th• person (having an approxiaate overall
length of 17 inches), and becaucc they are saooth bore: ..
pl~tols designed to fire a tixed shotqun shell.
They have
been &ubject to tho NFA sinco the Act va.c ori9inally enacted
in 1934.
.

The f f ' R Handygun was manufactured between 1920 and 1934.
Although the exact nuaber ot ua_
ndyquna aa.nutactured is
unti:novn, available intormetion s uggests that between 20,000

and 25,000 vere made in dittere.nt qaugea and caJ.i.bers. The··
value ot the Handygun i& estimated to ranq_e.- troll $- 00 ..to
4
$600 tor stand.a.rd variations, vith cearcer versions
exceeding that aaount.

97'3 172

EXHIBIT NO. ).Exhibit A, Pg. 500

103
-2Kr. &ric H. Larson

eursuant to

2'

u.s.c. 5845(a) and tho regulation• in 27
c.F.R. 1.79.25• th• Buro.au of Alcohol, Tobacco and Flrearas
(ATF) aay r ·eaove weapons other than 11ach1nequ.n.s and
destructive devlC9& troa the. scope o:t th• llPA vhlch,
a..lthOU;:tl orl9ln.ally de&iqned as w
eapons, are detel"'llin-4 by

rh•on ot their date of' aa.nufacture, value, duiqn, and
other oharacteri•tics to be priaarily collector'•
and
not likely to b9 used as veapons.

it•••

The r•aoval ot vupons tro-. the. coope o t the NFA 1• an
action not taken li9htly by ATP, and tbe .requ.oster h.a• a
heavy burden of . . tabliahi"9 that an ·1tea ia not likely to
be uaed •• a wapon. Tb.is is particularly true where, a'a in
the pre. .nt e&ee, a substantial nuaber o-t veapcns are aouqht
t.o be reaov-4. In addition, your requut r~lr•• c.lose
scrutiny in viev of prior congressional action vith r••SM;Ct
to R 6 R . K&ndYVUn• and siailar HFA ve~.
In 19'5 and 19'0, Conqress a..ended the l<PA by chanqin<J the
rate o~ tax on U.e transfer o:f these saooeb bore ahot.
pl..stol.a vitb the scope of the •any other vu.pon• c.ategory.
Boc&use th• v-..pons ve.re found to be cd intere•t to
col.lectora and usa.tul t'or certain leqit.1.aate purpo•. .,
conqru• in 1945 reduced the oriqi.nal. $200 tran•t'•r tax to
$1 and 1n 1960 chancJed the transfer tax to $5 for all
voapon.s vithin the cateqory •uy other veapon. • It 1.9
slqn.S.t'icant that, although the &bot pistol.s v.re conaidered
coll.actor'• tt.c.., Congress did not
to re..ove th. .
troa th• NPA. Koreove.r, the leqislative history ahova that

chOo••

conqr. .a deliberately lett these. weapons vithin tho purviev
~f

the MFA:

However, thia • a.ny other weapon• category will
cont.in~• to bo subj•ct to the pr•s.nt control
provieiona applicable to a11 firearms undor preaant.
lav . A.ti a re5Ult, the safeguards of pr•••nt lov are
aaintained, vh.ile applicable taxes are lowued to the
level Which aake:a it possible for qun collector• to
obtain novel weapons in the cateqory • • •
S. R6;p. No. 1-lO), 16th Oong., 24 se.ss. 2, reprinted lo 1960
U.S. COde conq. l Adain. NCV$ 2L11.
I

praviOU:.ly atated, one of the criteria t.o be conaide.red
in act.in9 upon a re.oval rt!qU.est is the •<te.si9n• oC the

As

veapon.

'!tie desi9n and function of the H ' R Handyqun are
lhe saved.-off shotqun, Vbich U also

identic;::.e,l to that of

~

~

Exhibit A, Pg. 501

104
- )-

Kr. Eric " · Laraon
subject to th• trP'A. Both veapone are a.ooth bore bandCJUftS
which fire a fixed cbotqun sbel.l and are cone.al.able on the
person. ft• weapons. differ in tvo regard.a, ne.itbv ot which
rebt• to tll•ir desic;n or function: (l) tll~ typical
s.aved-oft ahotqun is aade by oonvertll)IJ an •xietinq ahotgun
into a ahot pistol, whereas tbe K ' R u.and)'9Wl vaa
orl9ina lly aanufactured as a ahot pistol1 and (2) the
saved-off abotqun is &ubject to the MPA beOau.a. it fits
within th• definition of •weapon mado tro9 a ahotqun• in
26 u.s.c. '845(•)(2), \lt).Oroaa the H 'R Kan4Y9'1n la within
the HPA definition of •any other wea.pon. • Practically
apeaklf'9, however, the two weapons a.re eubatantially the

•••••

•

The

aaved ~ff shotgun is a popu.1-.r criae weapon and. ha• been
the aubject of nu:aeroua Feder.t and state prosecuti.o ns.
Thia ia attributabl~ in part to tho avaUability of . v upona. Aa stated above, saved-off" sbotq\1.1\8 are proc!uced
by ai11ply alUri.ng' conventional., sport.inq ahobJUfta vb.ich a.re
readily available 1n tba aarketplace and which are not

th. . .alvea

au.bject to the KFA 1 s t"ec)istrat.ion or otbe.r

r~ll.-.nta.

Altll°"91' II • R lland)"JW\S havo not frequently been u - in
c:rta.., tJMse weapons have b-aen found 1n the poa. . .•lon o-f
er iainel.8. 'lhe subject ot a recent ATl' e&H waa an un1aVfQl•

traftic.ker in droqa with a.n extensive crla.lnal record.
While C<*alttinq drug" violations, this peraon vaa 1n
po•••••ion ot tvo MFA weapons, a s:aved-ott s.va9e Aras

shotqun and a . 410 bon H ' R lla.ndY9W'· H • R H•ndy'J'llls aa.y
voll bec0110 a crl.ae problea if they beCOlla r ...dily available
in co-oroe. Wo believe that their liaitod availability !a
affected by tho tact that ttie ve;:i.pons have not been
manufactured •inee. the 1930 1 s, as ve ll aa th• tact that they
have been aubject to MFA control$ since 1934. Under th•
NTA, veapona not r~iatered in tho National Pir••rae
Re9iatration and Tra.nater Record are. contraband and. cannot
be. lavtully tra.nsterred.
Po.sse.scora of reqiatarod weapons
aay only tranafer the. ve.apons pursuant to •pplicatlon.s
approved by ATF. Transfer appUcationa al"• denied if tbe
t.ranafu. .a receipt •nd possession of t.be v . .pona vou.ld 1'
violate any lav.
1

M atated i.bovo. the re.oval of a veapon froa the tff'A
require• a fl.ndincJ that it vould not likely be used as a
weapon. We believe that re110val of H ' R K•ndY9Uft• vou.l d
inc:rea•• th• circulation ot these ve•pon• in co..erce and
their •v•il•bility to those VhO vould use thoa for criainal
Because of the nu.i>e.r ot v. . pona orl9l~lly
a.anvtactured, ve cannot conclude that they vou.ld not find

f'2i\

~

pu.cpo•••·

Exhibit A, Pg. 502

105

ll:r.

Irle M. Larson

-·-

their vay into erlainal hands and be put to unlavtul use.
As prevloualy stated, it is be1ieved that 20,000 to 25,000
we.re aanufact·ured, but the precise tiqure ic unkn.o vn. I:n

addition, ve do not believe that the va.lue of th• ""f>ona ia
so high aa to make the vecq><>ns lnacoesaible to criaina.l•.
Because th• vo.apons are identical in ,deslqn to the ••ved-ott

shotqun, vo have no doubt that those acqulrod by crialnala
would be u1od tor unlovtul purpose.a. For the above reasons,
it ha• not been cat.abliahed that th• ve.apons would not
likely b• uaod •• weapons it ~omoved froa th•. NPA.

In s~pport of your request, you have cited exaap~e• of ATP'•
reaoval of certain other vea,pons f'roa the NPA.
Specifically, you refer to Kauser and t.uqer piatola vith
shou.ldor atock• and trapper carbines. In our viev,
vupons are distinqu.i&h.ab.le troa the ti ' R 'Ha_ dyqun 1n that
n
neither they nor any siJlilar weapons bave constituted a
criae problea. You •lao SWJ9fft that ve oo•JM!re the 8
1l

th•••

'°

Kandyqu.n with the • 45 COlt/410 bOre fta.pson Contender
pi.atol, a fi.r ••n: vhicb you. state is s.iail•r to th• H " R
Kandyqun, i• dietrib\Jted in OOlaler'Ci&l cba. nel• today, and
n
i.a not con•idered • c:riae wu..pon. We do not believe ~ to
be. • valid c:oaperl•on ~-- tb• 'lbo.apson Cont.nder piatol.
ls not a 0900th bore sbot platol and 1a not a wea. on aubject
p
to ~· Jf'FA.

Accordift(Jly, vo au•t aftinl ~ denial of your requo•t to
reJDove th• H ' R RandY9'\Ul fro.a the scope of tho NPA aince ve
cannot conclude that such veapons, if reJDoved Croa th• Act,
would not likely be used as weapons.
Si~relv

vovrq,

· Ttfh"y L.

cites

Chiet, Pireatilf and Explosives Oivi•ion

Exhibit A, Pg. 503

I

106

"r . Erle K. Larson
Pott Office Box S4'7
Tecoma Perk, M
aryland

20913-5497

Dear Mr. Lar1on:
Thl1 la in resPonse to your request for removal of the
Harrington and Richardson Hendyqun (ff • R H1ndy9u:n) f rot1 the
scope of the National Flreanu Act (NPA), 2' U.S.C.
Chapter 53.
The weapons in question are .f.10 and 21 91u9e ff • a Handrvuu
which currently fall within the •any ·other weapon• catev-ory
of NPA weapons. As defined in 26 U.S.C. S 5145(e) , the teem.
•eny other .,._apon• Mans:
IAJny we aPoA or dBYice capable of belnt concealed
on t .he person fro. vblcb I 11\0t c•n be dlaeh1r9ed

througb the e.Aergy of an erploti•e, 1 platol
or revolver b1Yin9 a IM.rrel with a a-.ooth bore
de1l9ned or re<lealg~ to fire I f lzed abot9un
shell • . •• Such ten1 shall not include a
pl1tol or a t8Yolver ha-.109 a rifled bore, or
rifle• bores, or weapou d.e sign.O, M4e, or
intended to be fired frOll the shoulder •nd not
capeble of tiring fixed a....mitlon.

Th• weapons 11<1:ot this definition because of tai.ir concealebllity
on tho peraon (ha•ing an approziftllte overall len9th of
17 inchaa), and because the:r er~ af90otb bor·o piat.0 11 designed
to fire a Clxed. shotgun shell. They have boon aubject to the
MPA since the Act wa.s orl9inally enecttMS in 1934.
The H 4 R H1 ndy9wa was m.anufactured between 1920 el'MS 1934.
Alt.hough tho ozact number of Jf1ndy9uns 1111nufectul'.O la
un~nown, available inforaation suggests that between 20,000
and 25,000 wore aade in different 91u9e1 ao4 c•libel'a. The
value ot the Handrvun i& estiaated to r•"9• l cOll $400 to
$600 for standard ••riatioAS. with acarc•r veralon.a e&eeedln9
that a.cunt.

·.
97 C: : ~

EXHIBIT NO. 3
Exhibit A, Pg. 504

107
- 2 -

Mr. Bric M. Larson

u.s.c. S S84S(•) and the r·e 9ul1tlon1 in
17,.25, the Bureau of Alcohol, Tobacco and

Pursuant to 2'
27 C.F.R.

S

Firear.u (AT!') ••Y reaove weapons other than .. chine9un1 and
destructive devices froa the scope of the N'.FA which. although
orl9in1lly de1i9ned as weapons , are deterllline4 by reason of
their date of aanufacture, value. design, and other
ch1r1cterl1tlc1 to be primarily collector•• items and not
llkoly to be Used •• weapons.

The removal of weap()ns f rocn the scope of the N la an
PA
action not taken lightly by ATF, and tho requester haa a
hoavy burden of establishing t hat an ite• la not likely to
be used 11 1 weapon. This ls particul1rl7 true where, 11 in
tho pro1ent case, a substantial number of woapona are eought
to be remov.ct. In addition, yout request reqY1re1 close
JCrutiny iD view of prior congressional action with respect
to H ~ a H1ndy9un1 and siailar NFA weapons.
to 1945 and 1960, Congress amended the WPA by cbanolng tb4
rate of t1x on the transfer of these smooth bOre shot
pistols within the scope of the •an7 other weapon• cat~ory.
~auae the weapons were found to be of intereat to
collector• and useful for certain lfJ;9iti. . te purposes,
Con9 r·e sa in 194S reduced the origina l $200 t r&A1fer t1.x to
$1 and in 1960 cl\anged the transfer tu: to $ 5 fo r all
weapons within the category •any oth•r weapon. • It i•
1i9niticant that, although the shot pistol• were considered
collector•• it.... Col\gre.e:s did not cbo01e to r.-o•e them
fx-on t .h e SPA. Moret>ver, the le41islative blator:y lh<*• that
Con9re11 4•libex-ately left these weapons within the purview
of t~ MFA:
.
~v•r, tble •any 0th. x- weapQn• cat4tCjllory will
e
continue to be subject to the present control
provision• appl icabl• to all firear•s under
present 11w . Al a result , the safeguard• of
pte1ent 11• are . .1ntained, while 1pplic1ble
tax•• ere lowered to the level which ••k4• lt
posaible for gun collectors to obtaia novel
weapolll in this cetegory • • .

S. Rt9. tk>. 130·3 , .. 6th Con9 •• 2d Sesa. 2, fftprlntttd In

19'0 U.S. Cod• Cong. • Ad.lain . Rews 2111.
0

As previou1ly 1tated, one of the cclteria to be con•idered
ln actl119 upon a re-oval request is the •de•i9n• of the
i
weapon. 1'be de•i9l\ and function of the H • • Handnun ere ·
identical to that of the sawed-off shotgun. which ia also

Exhibit A, Pg. 505

f

108
- 3 -

11.ibj.ct to the NPA. Both weapons are smooth bore h1nd9uns
whlch flee • fixed shotgun shell and are conce1l1bl• on the
person. The weapons difter in t:tfO re91rds, neither of w~ich

relit·• to t .heir design or function:

(1) t .he typical

sawed-off 1hot9un is made by convertin9 10 esl1tln9 shotgun
into 1 thot piatol. wherees the ff • R H1ndy9un w11 originally
aanufactured •• a shot pistol; and (2) the aawed-ofC 1hot9un
11 aubject to the NPA because it fits within the definition
of •we1pon made from e shotgun• in 2' u.s.c. S 5845(1)(2) .
whereas the H & R Handy9un is within the NPA definition of
•any other weapon. • Proctically 1po1kln9, however, the two
we1pon1 are substantially the sa11e.

The 11wed-off shotgun is a popular cr11Di9 weapon and has been
the 1ubject of nuraerous Federal end Stet• pro1eeution1. Thia
11 ettributabl• in part to tbe · av1ilabillt7 of tuch weapQns.
Al 1tated above, 1awed- ott shotguns are produced by einq>ly
alterino conventional, sporting &botqun1 vhlch are readily
available in the aarketplace a.nd which are not the•selves
subject to th• NfA•s re9istration or other requlr ... nts.
Although H ' R Handyguns have not frequently be•n uaed in
crl.._a, these weapons have been found in th• poa1e11lon of
ctlainals. Th• subj.ct of a recent ATP case vas an unlawful
t r afflclter in drugs with aa extensi•• crl.alnal record. Whll•
co. .ittift9 drug violations, this person waa ln po1ae1aion of
two MPA weapons, a sawed- off Savage Ar. . 1bot9un and. a .410
9au9e K • R Hendyqun. H '- it Handyguns aay ttell become a
crine probl•• if they become readily available in co....,.rce.
wo believe that their limited availability la aftecte~ by the
fact that the weapons have not been m.nufaotured aince the
1930°1, as well as the fact that they have been subject to
MFA control• since 1934. Under the MPA, weapons not
raolater&d in the National Firearms R&Qistration and Transfer
Record ere contraband and cannot be lawfully tran1fer red..
Po11111or1 of registered weapons ••Y only tranaf er the
weapona pur1uant to applications approvecl by ATF, Transfer
applications are denied i f the transferee•• receipt end
po111aaion of the weapons would violate any law.
Al stated above, the rel'DOvll of a w1apon fro• the NPA
requires a flndin9 that it would not likely be uted •• •
weapon. Wo believe that re990vel of H ' a Hendy9un1 would
increase the circulation of these weapons Jn co.....rc1 and
their availability to those who voulO ute th . . for crialnal
purpotes. Because of the nuaber of weapon• originally
/
aanufectured. we cannot conclude that they would not find

Exhibit A, Pg. 506

109

.

- Mr . 8ric K. Larson

their way into criainal bands and

be

put to unlawful u••·

As prevlou1l1 atated, it ls belie•ed that 20,000 to 25,000

were . . nufactured, but the precise fi9ure la unknown.

In

addition, we do not believe that the vtlue of tbe w•apona ls

so hl9b •• to .. ke the weapons inaccessible to crlalnala .
Because th• w11pons a te identical in degi90 to t ,he aa-.d.-off

shotgun, w1 have no doubt that those acqulr,e 4 by crialnala
would ~ u1od for unlawful purpQses. For the abO•e rea1ona,
it has not been esttbllshed that the weapon• would DOt likely

be u114 •• weapons if renaoved frora the NFA.

In support of your request, you have cited ~ampl11 of ATP"a
re.oval of certain other weapons from the Nf'>t. Spoc:lflcally,
you refer to K1u1er and Lu9er pistols with 1b0ulder stocks
anO trapp.er carbines. In our •1t8W, these weapons ere
di1tln9vishable troa the H 5. • Handygun. in that neit.ber they
l'M)t any a l allar weapons bave constituted • cri . . probl ...
You also referred. to ATF's •removal• of the Marble G...
Getter with an 11-inc.h barrel from tbe •any other weapon•
cat•9ory. Thll weapon was not r._.•ed froa lb• l:PA becau10
it was not subject to tbe Act in the first place. Bec•u••
of Its overall length, i t is oot considered concealable on
the peraon and, the reto~e. doe.s not fall within tar..
definition ot · •any other weapon.• You also 1u9901t t.bat we
COllllPIC'e the H ' a Handy9un with the .45 Colt/410 91u9•
Tbonpson Contenoder pistol, • flreara wblcb you atat.e la
siallar to the H ~ t HandJ'9Ufl, la distributeid in c01111erclel
c.hannel1 today, and ls Mt considered a crl. . veapoa. ... 4o
not belle•• thll to be a ••lid COllC>lrison because the
Th°"'1on Contender pistol 11 not 1 allOOtb bore allot piatol
anO la not 1 we1pon subject to the KPA.
Accordln9ly, we mutt deny Your request to ' telk>ve the H • a
Handy9un fro• the scope of the MFA since we cannot conclude
th1t 1uch weapons, if re1110ved from the Act, would not likely.
be used as we1pon1. Nevertheless, we coJ1111God you tor 7our
thorouqh re1e1rch and presentation and ~•9ret that our
decision could not be lllOte favorable.
Sincerely your·s ,

Edward M. Owen, Jr. •

Chie f, Pirearas T..ehnology arench

I

Exhibit A, Pg. 507

110

0C'"AftTMCNT OF THE TRCASUftV

.u•c.-.u Of"

K . Irie
r

TOe.-.c;co AHO ,.lltCAlltMI

.-.~cOttOf.. ,
WAS-MtNC'oT(Nlt OC 1ett•

M .~r•on

P . O . Box 54j7

T•kom.a Park , MD

2091)

De• r M.r. t.a.reon:

Thi• le in re•pon.ee to your letter of Nove.111ber 21,
ltt,, in vhich you request contirtMition of •t&t... nt•
ud• -~t d.at• in t.he ..MFA R.EGISTRA.TtOtl ACfJvtTY
A.HNUA.L C'OKPAl.JSOll'• t.able . YOl.l ~l~ed a copy of the
table wttb dac.. chrough Dece91ber ll, lttS .
Thi t&bl• •hows Fora ""'' regiatrat. iona •ft.er 1t11 .ad

before lt,e .

We

believe that

then:

are e rron Ln the

elate or foiw field.s which caiu•• th• regletr• tiOn.e to
appear LD those

,,_.n.

The table ah0w9 pre- 1934 data. Thi• dat.• n •ult• fro11
errore. blank•, or -.iarepreaented character• in the
date !i•ld which cause the re9iatratlon• to ~ppear
prior to ltl4. Thi& ,st.a tistic.al r-eport va• developed

aeveral years after the implementation of t he aut~ted
databaae &nd the prog-rammer ~pparently included a
procedu.re to capture these date rang•• becauee errors
in the date field showed dates prior to 1934 .
You ••kod about the ·OTH&R· colum in the t able .
n

Thi•

c•t•~Ory would be. comprised of regi•tr• tiona l-ben t he
ton nulllbcC' i• differe.nt fro- the other one• J:•bul•ted.
An l nconect fora nwabeC' wou.ld be count~ ln.,Jhat

column .

•

I

tn r.,_rd to it.ems S •nd. ' of your letter• ve •re
const.•ntly verifying the inforsa.ti on l n our dat-.base.
It .,. do locat• ~ re-cord w
here t he ct.te. for. nUllber.

970 ! 78

EXHIBIT NO.

@

L/.

Exhibit A, Pg. 508

111
• z •
Mr .

£rlc ti . i..areon

or otber infor.ation was not. en.t.e.red correctly, we

e.nt•.r the correct tnfonaatioa. The.se action• uy then
re.eYlt in an adjust.ment to p~viously 9e:rH11rat-4
•t•ti•tica.
W. would 11.ke t.0 point oot that err0r• in the date or

form nullilber field• would not affect the thoroughn••• of
a ••a rch ot tho database by NPA Branch per•onnel. we
uoo a aearch m
ethodology that ensures a thor0\.l.9h review
ot the dat.a ba1e tor all possible responaiv• en~riel and
an exaalnation of the original registration doC'umont.

ri~lly. you ••ked whether a firearm .ould be ~ded to
tho Jte9i1try if a person poa;scssod a valid re9,i1tration
'
cha.t va1 not. in the Registry.

The docu1111tnt

cl

peraon

1• his or ber evidence of regittra~lon . It
wou.ld be MSded to the National Firearas Regiatration
a.nd Trenafer Reeord if tbe inforao1.tion was not already

po11 . .a1,91

in

t~

itecord .

We t .ruat thla baa beon rc$p0fl$ive t.o your ~·•c..
Should •ny addition.l information be needed. pl••••
c:on~•cc. ua at (2021 927- 1130.

Sincerely yours,

Chief. Nat ional f irearms

~ct

Branch

I

Exhibit A, Pg. 509

'

112

-··
---

_,_

a-

' -;PKi•l Ae•t. lft C'b&r9e
I h•tt.l• Ol•tric~ office

T12t
1c1t

..

S.Uttl••

l _...... ... .. ,.

J',.....

...

& CTJ..ai.N.l bl•tOty d4tl!WI beck to lf7'1.
Dudlq"•
C1'1-1n.el hl•tory reflect• fOU'l' felo~ conwictJ.009, o . . for f lr•t ct.gre-e
\Mft. and three (.or the deli.,,e:ry alld pojJ•ff•i- of coetrolltd •Gb9t.aoc.e,
Ot.ldley •l•o hu tdir -1-.de.e.....oc eon¥iction.. •-tOU• •n. . ta tor both tM
&Dd dell••IY Of controlled aubst..oce•. u - c . la pM&Ha.ioa ol a
fll'. ..nl. P<trole •iol•t.lons, bur9lary, tbttt. aoc1 eoet rec••tly, t h e - • t•cuara of controlled •tlbsq,ncff. John Olldl• 11 curfllltly
t-.o aeparatc Or-.on at.ate lndictatoc.a for PIMM•aloa of • coat.toll., aubac..oc:e ,
•thMphet.Mlf'I.• aod •rijUA&~ aa:iwfacturlno a COllteoll..S a\ib1uoc-a. • tlt....,twtua.IM• nl•1Ml conspiracy: amt
U.
a ttreara.

,Jolin Qa¥td Olld.lew" M•

poe••••lon

.-..r
•-wn "°""''°"Of

OD,_.._.,.,. 2t. l'lt, based oo h:i.tor..tJoA rc•l•., t r . • codldaada l
into,..ot ..aiovc. drv, actl•Jc.y. U.. J.cboo CO...tl' •rcoc.Sca &aforc.-.nt T9-

tJAOIE1'1, . . ,..,,old

a •-rch ,,,....-r•t.

at. .JOha o.41.-:r'• real.M.ce .

oreooo. ovrlnt Mnlc• of tA1• varrut. a -a.11
qvantity of -t.h&i•l(lhetuln•, PhOtos Of a • str_t......,.r·• ah0tove 11Y1DI Ofl t.lle
c.til' •••t of ,John Dudley'• C'.orvett.e and t.ha owner• 1 •n~l tor tM •street•
.....~r· were aai19d. OD >IOYeaber JO, ltlt, JoM Ol.iCUtlY ••• •ul>1equet1tly
arr••t" for ooaaesaJ.on of a controlled lub•UAC•/
Met.ha•phata11lne.

w••

~n "-rch JO, \990 . ~ ' ••arch w•rrant
••rv-4 on a ahop bl.llldino locat«l •t
ore90ft. Offical'• dJ..c:cw•r·9d a JMt~•t­
-1.ne l•b aM nUMeroua fire•l'- in • hid&.n cmipattMtnt nat to the la.b.
SVidanc• ._.. fou,nd t.hat linked .John OUd1.ey and alllOther 1n41.. ld\l•l to tM lab.
Jo\C'MCT ottlc•n COi.ind dn.o reco:rd• Md Pf'operty in tba Laib U1a t i-.J•te to
.Jlot!A Dl.ldley,
I

I °" April 12. ltto.lft.lri ~•re• v<1rrM1t • • HN.t at JI~ 0\14.liw'•
•
(daacrlb4d ••.....a...._t:
vbaal
..

reside~

tr&il~r)
or"°".
OYriftO Uilla~ ••AMT~& caliber platol. Mari1111 Mtlail • ..-,.r l:Jllt,,

, ............... _

,

•

la

•

• ---~

Jtl>/A, Port.la... Oil .00

l
iilp;;:;;j

... ·
:

:~~~:.:.. :

lf!:":!o..

ft'U

r_-

10,ltltO

~
.......

10/ltJtO

Exhibit A, Pg. 510

113

-·----

-

~---.....

J

MPCMJ' Oii 91'¥UW"°'!-CQIN ~..... tHEE1

wu ta11:1d la •

9)'tl ~

•t.~ec....So• aad

•'--~''-"""""'

tblit. &lllO cont.V...-.d ...,,....1 Olt.ce. 0( M~
"-e-ro.1• l•tt.en. rwelpu for c•l~o.e

•rlj..,....

ot.h.z' .coruepooduce 1• t.be . . . . of J'Ol'lll Dtfdl~ wen fOll.ftd .t.n
c.hl• . . . . rulde.nce. Prior t.o the H .rvtce: d t.be 14rnftt.• .JObrl Ovdley
bill• •"4

WM •C.001*1 wt.11• le..,J..Q9 b.1.s property and ect.lsed of the wa rraat1 he
C"bo•• not t.o r.uln on the sn-i•.s. Jo anothtor t.rall•r on th1~. . .
',
propet'ey,
. an
ot John O\Nlley, wa• f°"nd to be
i n D011••••iOt1 ot: a 81Nll .-ount. of . . c.ti.aipha~ioe.
Wtll a
ated
[cw the po11e11ton of • coritrolle4 e\lbat&nee/Mt.hllnpl'Mltuloe .
~ 1
aeczuently, .John Ot.tdley ,,,.. indicted tn aute covrt tor (l) Mnu ct.1.&ri"9
.rolled
a COl\trollecl a\lbat-.Me. Mtba.tlheta..ine, (21 Po• ••••lon of a c

••.oci•t•

a\llba tance, M"th•ll'CPh•e.lne. ()) Po•••••lon of a oantrollff:
- rl.juana. and 14> ex-coo io poa.sesalon of a flrear•.

••au.nee,

Ofl .t.prll 21. tttO, a weapon - .de frca • 'hOt.oun vaa tatatd durino a

eon•.at ... rc:h of

Orevon. pwce\Y.ftt

t.0

• " •rr••t --.rr..nt for Joho Dudley.
• • r••ideet of
•U.t . . U..t. •o.d.J.ey ~ •11 t:.be qunc• lhat ""9N found in
the r . . idoence. •ad tlM.t. Dud.loy and
Mid !iol'C*fht UM 1"11• ,
OW.I' to
hoiiiM •t different t i . - durl . . • ~ek period.
A t.ot• l Of 21 tlr..a~. teclud.ine Che .__-.pcxi. ~ fro. • &bO~ot " ' " •
fouftcl •nd ••La..S (f'Q9. the l'e.&ldence. Thr. . of tM
fl,...,.. we.re
fou..S to be •colen.

•boot•

oa .htM 1. 1tto. •bulff•• ~iu .,..._t u.
ore..-. C.Job,.m DIMIJ.,-•• tfflde:Ke} to do • foll°"'""9p 1..._tl.. . t&o. of •
bllrtl•ry. •ftd _.lied phea,.lac:eUc .iicid .Uld PJf o. c.M SMOP1rty.
.,..,_ the depilltt . . •

~rlc~

with

-~ uai..

...ed.

lAJ:io..-atOl'lM and the

odor• ••it«l•CAd • 1Ut. t.M e.bealcal• u...S iA the •klriq of Mt~•t.·
• l"•· • "•rch vu ,r..ac. "•• lAcu..S 6lld • •ec:v.ted •t th• addr•••· In
&ddltlon to •tol•n pr~rty, •o oPent.lno -t.tt.a.ofl•t•ln• Jab •••
dJ.•cov•red SA • -1\ed l~ted oo t'.he proptrt.y. Four flcM r.t ......~
du'Citl9 cxec1i1c.lon Of the •-.rch -.rr,ut, lftehtdi119 • tMt.9•1&1\ "1hlclii was:

••l•M

a c."C•t•o1ca11y plac«' atop the doo:rw•r leadlag into lbe . . thuipl"IW•ine
labocet.Ol'f, Sl.lb•equ•ntly• .Jobo Dadley a.nd blo ct.Mr •U•P4Ct.• ver•
i~lcted in •U.t• cout't for (1) criaia.1 con•ptr•cy, (2) . . nufacturlno •
COfttroll . . • ub•Unc:e. Cll p0&ee5slon of• controllltd 1u.b1tanc:e. and (41
• • · Con ln pcM,0•11ion of a flr••.ra. A.rce~t warcant• w•re l1•vlf4 for all
thir:•11 John Ovdl•y tutn ed hi11111clf i n t.od ..,._. t•l ••••d on ball.
A f1rearN t.r•c• of the Clobl'ay • street•weeper•. 12 04,. • • l •\lto •hoc'""· b••rl119 ••rlal n~r 6l,J, found d-\lrl"f a ••arch varrant
th•
r••ldenc• of
1'9Ve•1.ed U...t. it waa P411'Cha•ed br
lotb .&Mlvi4uel• •r~ ~o uaoctate• ot .Jotv. O.dl9)'.
t1&11•porte4 1ever •l fir. ..-.c. lni:ludt99 th• Cobr•r •stc. . t...,• .,...... 1hot91i1n, \.(
residence, all•oMly ct .JoM l>lldl•y'•
r.cau••t .
~

°"'

,,.. J.ciu.o.n eo-inty 11ercotlcs ~forc-n.t. Te- cuTr'-tJy hat • t.CK4ll oc
SS flt••,._ 11111 cw•t°'Y fro. ..-.riCllfs ecitu1ea that a ce l llllt.4d t.o .IOhm
O.v ld o.dl .,-•

Exhibit A, Pg. 511

____
.
_
114

.,..-0& .... ""llill.N'

... _:>'...___ ..
_

IWPOlt' Of NV(sncAUOH-ClCIMl'NJ4noM 1M1D
(~~

f t>>,O-tO-tOSll
• t.r•c. h•• MM l o S.c.tattrd on •.-vec&l of the oU..r
•ei&ed ~ JAO'ft'.

.....
At

pce••nt, Att/Po rt.Jand b•• no prop9r t y

MJIA

::::::~:.:·:::::::::

fi~r..

t:Mt we.re

in c-..•todr r•l•tlnc11 to t.hl•

•l

Me exc>«•a.ed ltlter. . t in pwceul.no feder&l

or t <dm l fire.mo uvo ln thl•

Exhibit A, Pg. 512

us

---1--·......,_· __!!_-- -··
., _

I.............. ,_._.....• .er. ......

-1-·--- ·-..!!!....Ot. _
-·
--- -· .....

__

o~

MPOM 01 INYUTIGA110N f\.aw &tilolct:INllO

Special 1o9eec. in O..roe
I·~
s.a.ttl• Oletrlcc. Offlce

____,,_,
L';,.,.LXY.•••• •••i<I.

-

C:ff' SU.tUet n-tO-Marcoc.ln

J~~-

'r. OU . .

co.,u.-._

-

I

~-

~

IJI

----

r "'"'...

-.._

-.....

-UGt...:C

-·~

•
,,_,"'''.._..

•

_...,

Thi• at•tu.1 r•porc r•l•t·•• to all eged violatlOna

ot

"M

•

£9'1.rel tltt"I

h~

lo.w1 by

J'oM David O\ldley, a "ultl p l e convJc~ felon, who va.1 unlaw(ully !J&lno "M'ld
cairrylnq ti'r11rM vhlle traff icking in druG• J..o U"9 .J\l.41clal D11trlct or
oreqon. Tttla i(Heltl91.tion i s c:l~ai;.lfl•d •• CIPa NanotJo•.
'

I

Joha O•vid Ot.1dley h•• a crb1lnal hietOt'y dat.iog bact to 1977.

Oucllt:Y' t

t•fltct.a four tel~ coavictioos. oae tor f1tat dc9r••
I crlain.11 hiatory fOC' the delivery •nd Po••u•loo of coatroll.S 1W>1u.ne11,
theft and t.llree
Dudley &leo ha• fCMr aisd..,..111or coaYiction;. nw..roue ar-c11ta for tioUt c.htl

I PGe••••lot1 •n4 dell••1'Y ot COfttrolled .subsUnc••· ex-.coD J.n
f1c-...m.
•1ol•r.ion•. burgl.uy. the-fr. . . . .oet
~rol•

po•••••ioa of •

~tly . Cbt NAU•

t.ac:t.•.r• ol coatroll.:t "ib•t&acec.

.John Oilid14!Y i• C\Lf'Ct-nely IH'ldtt tVO •es>""'
•C•t.e- 01"9000 •t•t.e 1adiC~ltU for .PO"••.ioo of • co.uoll. . 9Ult•t•t1ee.
-~c.-1 . . and •rJiu.ana: NJ)U{a<Ct¥rltl!I a COD.tTOlltd . . . t&aee, -t.k·
.
UIOheU.lM, CC''-iMl .con.pirac:yt a.od o:...coe .la poc<•u•iOo ot • flnarw.

I

M d-cri)Md. 1111 the
report, fro....,.....,." ltlt to Jun•: ttto,
I fiv• eu_rch -.rruu P!'e.-ious •WW•by the J•ckeoo
..,.re oee1ated
,..rcotle• &afore•COUit)'

I
I

_.,,t .,... CJACMl'l'J oo .John Dudley '~ resid~ or hJ.a &•90C'l&t••" re-•ld.ne••
t.het conr..ta.O IN<lley'• properqr. Durlnt
ua.rch •a.tt&oc.e. rw.eroue
fice•r-•. ••riOlrl• QU6ntitlec of botll •thallre>hetaain. and Mr.tju•:1· • •boxed•
MthUiphet•M1n• 1.0 and M oPet•ti"9 -t}1
.uiphet. .1M lalt ••-" dl °"'•rM by
police offlc•r• . O\l.rint an April 21. l'JO, se•rc.b verrant an on.e •of dohn
Dudley'• -•oc:iat••• two 1'iUe 1 1 (iT&1r1111 we.re toun4 U.t belong.cl to
Dudley.

dire••

I THt

~~Hll l!i:MS

BAY!

on O..c:!Mber Jl, 19t0. a

I

~Y!!JCR ~ I~~

TK£ LAST §tAJ:ll.1 8§!QIJ:1

~•ck•on

"

COunty Sheriff'• doputy •ootted a •tolen
vehicl• a.nd followe>d It until. the vehicle c.amo. to•
two whi t• male.s
vc-1ce4 Che v•hicl• ..wt th• d•P"'tY iinnedi•tely recognised th41 drl•el' •• bei"9
.JOhn Olldley. Doth .John Dudlgy and hi• p•ssenoec •
v•c•
uken lnt.o cv•tOdy for the ~n•uthoris~ llle of a aoc.or -•~lcl•
later rele•••d), Officer• diecovered a pictol, in plain view. we<lged betv.en
t.he CCH\•O'le •nd pa•••noer aide seat. Officers found that the pl•c.ol, an r.M.
1.-ownt,.o. ! I • ol•tOl. beart 1"a9 ••rl~\ n..-bet 2tS,01. va• load.S c~l•te with

I
I··-'"...

'~

•t.op.

.....

.. ""'

•••

.._

.."

~;;:'~~~
_iii)_ 01/10/,1
··-·-·:~
j_u.c. f'Ortla.ttd, OI- 100
ll£!.Olll.
I"
l;'.._,.. e....... , .... t ~•-• .. • ,.,.......

Exhibit A, Pg. 513

I

______
..
---_J_
116

I~ =i-:
•·
..L

-~---

M"'°"f CW IHV'ESnGAnoH-c:otmNUATIOH &MU'f

_l tJJi0·t0·4.0Sll

one rwncl !ft tM chaaibor· &nd r-M~ t.o fJre. A co.puler check oA. t.M
pl•tol t'eve&lM t.Nt- .tt· ~d. be.- .c.oten d•tloq • n:•ldentla1 bu:rgl&ty in
J'adcaon County two _.,.th•· Pr-tou.aly •. Off1C:wt• •lao dlacor•red a

·

cylindrical -t•l· cbjitet.· Jo. oo.dley'• left jacket. poclilot. • UPoa fb.rther
exa•IMtion tN object. PTOYed to M a ,)8 cati~r pen v••t. Th• :.11.
c:altbe¥ pen gun doe• not have a Mrla.l iwlftbct. John Dudley. we• •Tr~ated

tor tt1e . 1,1M.ut.horir.ed
• W960on.

uee of a aotot ve.hicle and ex-con ln

on Jenuar)' J, .1990 , AUSA•

OO••i ·

i on· ot
·

•oreed to Jn4lc

Jobtt.
Uft~

Oudlty (Or felon i n J)OGIL!le50ion and thO. unl&vtul po&l&&&lon Of

..a9.l11.ei:ad Title tJ t1r. . rwi. · b••ed ulM)n OUOl•V·' • OecUlbet ll. 1 o.
erre1t. 8411.cl upon the ratlonal•· t .hat Dudley 1ntl•Jdate1 aeveral of. cM
potential wlt.n••••• •gaiinlt hi•~ that Ot'IC& be ie i n cuetody,
wltn•e•e• My b•· "llling to t estify. AUIA
want• to Mk• •
tvppl ... ntal 1fldlct.aent ct1 -.v•"'l of ENdllY'• prwtoue arr••t• • (ter be
1• ta lten h\tO federal cu•tody.

the••

••Ille

Moir•. v••

On J•l'lu•ry J, tt,O, tt.. P.H. Bl'owi\ittq , _ ol1c.ol, 4•scrJ..,_.
flft94rprlnt41d by the .J..Ck90ll-- OOUoty. Sheriff'• labocetory vJtll ~tJve
r••v.lt.s. lot.h t.M r .•. 8rc;wair19, , _ ptetoJ, M•cl119 Mrlel ,..._r
2tSSO\ • • 1111 tM 9',to&~t- .JI C&libe:i" pea qt.In, l'lO ••rl•l nWllMr. dl•·
COf'ered 4vtlat tM De«91be.r ll, ltto. •nut of .Jolla Dudley,
Ul:e.n
lnt.o C\l•tod)io by .\Tf'/fortl;uid. ~ MditioneJly, the C'llilO vnreol•U~ Tic.le
.tl th•••,_, allaqedly· ~ by .John Dlltdley ..._... . . ,, . . ln . . "9rll 21.
lttO, JAC.ICIT • •.trc:h ~rc..,,,t. veire t.ak~ lnt.o a •toltr bi')' ATT/Poi-·tl•l'd:

"'•.r•

l.

S."'•9• """· Steo;oens Model t 4. serJe.• •· .11 9•\19• ~.
IH•rl"P 11-erJal nu.her aoo.Mt. barrel l•ntt:h ot 1)•1/4 l.Dcbe.•.

aM an O¥et•ll length ol 21-ltil' inc.ti.•.
2.

KarrJ.notoft. ~ Jlichardso.n. I ' a tc.ftdy...OUn, .tt0-12 -./,,. c,J..e,
t>•arlrig s•rial ftQ.tMeir 37757 , barrel Ienoth ot 12-11•

id;•.

Tht ,lt caliber pen-qun , ta.ken from John OUdlsy on Oece.ber )1, lf90 ,
wlll b• • •nt to rir••n1$ TecttnoloOY Bruch tor • Tlt.I• 11 detenaina tlon.
An "•"' •••rch w111 coM1.1cted under the
n•9•t1ve r1111u lt1.

fWlaC

of .JOM 011vld 0114l•Y• vlth

I

t9 fl,. tht• c.•e wae pte•ented bllo\oe • federal or!~ j ury.
tt i• •nticlpat ed th.&t Oudley wl ll bf' 11\dtcted for hl'e 12/Jl/tO' .1.1.)egal
po.tl••••ton or two flrear.e,

On Janvery

9~

ATT-.CMMIH'tl 1

ATP P llCMt.7 - Cate s..._.cy
ATr r J4ff.1' - Property tnvent.Ol'y Cll

Exhibit A, Pg. 514

117

.__.... . ., . . ,... . .
'

.

,

. -.."°"....

.,..co-o..~-~1

NJIORT Ofl 1NY1.1 no.ATIOM (I.AW Eulot

II)

I'-

specl&.1

nunLn."~',:;:'. D•vld

T'rl'lOt _ _ _ _ _

......

lflCI AD

Ii . . .

--1 ~•ttle•
CIP

:::i---

FY•tO.. l!latcOti s

_~tJJCO-t0
_tMI_

--- ·- ·--- - ·----...
--.... 0511

• •

J( " "· ·

-

fl.,.,_,

.:....z:;....

o-

o __.

Ill

~t ' " dllu'ee
•••ttl• o r1ct Olflc•

........
• ""'

~w

"

bllfll

rn~••

• cii!ll••

~-

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u~

..

tht> 1ta.t;ua •nd reqv••t p(OJ>trt:y
dlspo•itJon l'oo•ntl110 tho i rwett.ioatioo ot John D•vid Ou.dler • • Ol.IOltY
who wu unlwfully vslr19 and c.11.rryi.n9 fir•ara.s
multiple comicted f•lOI\,
while t.r•fftck1no 1• ~· in the J'Udicial Olatrtct of Or990n. ...
inv-t. i ~tion l• cJ.•••~fied •• CJPi J!larcotic1.
Th11 l'ti)Ol't 11 •~t.tt~ eo u.pdate

Johft D•vld oud&ey hU • crlaiMl llistory ~tlftO bacll: to lt71. DUdley'•
crl•ln.al hlat.ory r.flecu fo.-r fe.lo-qy coavictlon•. OIM for lint degre•
lMlt M4
foe tll.e delivery ud poeses•ion. 0( cootroll.S 1ub'at•nc-e•.
thll4lcy &lM M• fo.c ~anor COD¥ictl0fta, n-.-.rcu• aft'W!•U. roir tiot::i. tM
I
e•-con l• poti .... alon of •
• po•M••loa ~ Mll-cy a( ocmtr0lled •'ll>9U11C••·
p.ll'Ole •loletioas. bu.rgl.ary, t:befc. .._,.. 90et r.c:•ot.ly • t.M m&nuoontrolled ••ac.pces.
facture Of:
I
M OeKTlbeil •lft c.he; pr--iou.s euta• t'$0('t.f, f..-os )frOoj'.-._r 11., to June lltO,
fl•• "-•l'ch •tt•DU •re execu.eed by th• J.c;:kl>Oa co.Aty •rcotlc• antorc•.,.nt ftUll (J.\CMftl on John Oodler" s r.,1.id.t.nce OC" hla u.ocietN' C"C9id.e.DCe5
I
~t conu.iped CNdley'• p.ropa.rty. ov:r-ino tJ\eaf! •••rch w.ananta. n...-raus
Cireeniit, 1tert01A• q\lo&At.ltl•• of tcth -~•w.tne ..- urlj\l.AM, • •tioaed•
"'4t.~tMllln• lab aftd an operetlo9 ... th.anc:ah•t. .tne lab weA ~ei-ed by
POllce orrlcera. o..-ring u AprU· 11•. lttO. search 1H.rrant: on
or .Johll
ovdley'• •••OCl•t••· two Title I I flr.a!"llC wore !Ol.lnd th.lot belon
to
Dudley. on OeCftllb4ic- )1, t9tO. JONI Dudley wac cc.eoppect whlle dr:ivlnq • etolen
vehicle and found to be in posau, io n of • 9IMI pletol and • .ll ca liber
.
pen-oun. he w.a• a 1'r . t..S ror the v0fiut.hori1-ed u s e or a 'lllOtor Ythlcl• end.
ex..con ln Po•••••iot'I of • weapon .
AD Hf~ •••tCh we• concluct.S under tha na111e of John oavld Oudley. with' ne•
o•tlv• r . . uita.
1
thia caef! vee. pres•nt.od betor• a ttd•r•l trend j ucyt
! on January t. \tt1.
John oud1ey wa• 1\lbaeQUently 1ad1cted tor v lolatlon.1 0[ flldecal flt"Uf'MS
U,J,C., Section• '1161 Cdl
l•Vt, 'fltl• 11 u.c.c .• Section 9lll9). <11nd Title

I

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Exhibit A, Pg. 515

118

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Otl J•nll6ry 1'· 1.ttl, .:John OVcll.,- w•-5 errested by ATr/POr'tUod. alld he
i • C:W'rently ift the ~u!Wdy ot· th• Feder•l. Bur-u of Pl'lton•. :
" Oft Ma,)'

awn.t.

t. 1tt1. John O•.,J.4 o;.idl.y· pl.S guilty to
•

•

the orltiM.1 '1.Mri c:t-

'

MOath?f'r i eol'l"'
it.a to

On .July 22. lttl, Jo>wl. o~vi4 Dudle y v.t.e e4!Jl;\;tt1Clfd to CO
mant with thrtt :r••r• of •u,pcrviaed rel eae:e. Pernr.l11ion 11 r
deetroy t he 1el11od proQ6rty in .t.b l• investto• tlon a no to r1l1a•
nitaln.cl orOP41't.l' bact to the :J•c.k•oo County S.MriCt'• Office.

the

AffACMNCltf'l1

ATF P 1270.6

"",. 1110.J)
>•00.1•
Att P

• Proor-s ltecord of Defendant

• Pf009Ttv l nventoey -

ltequ-t

for Di•PG•itloo. Cl)

• aeleue oL Propect'ty

Exhibit A, Pg. 516

119
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OUOL£X. John David
01/ll/tl

Tl'UI 9.lil lndlCCMl'lt

count 1•
CCNnt.

••

11 u. s .c .• ,22(9)(1)
relon 11'1 Po••••llion of t irur•
~1tJ•

TJtll '31 0,S,C,, Sl'l (dJ .lnd Sl11
f'rO•••••ion ct an. unr99istered Tltl• 11 r1r. .r-

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Pl.ID CUfLTY to both counts 1 ..nod 2

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oc19h1at lnd1CtiN.l'IC.o

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.kot•need to 'O .onth• l111Prlsomient followed by Ulr•• rc-•r•

avpervlsed rel••••·

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Exhibit A, Pg. 517

ResPonses to the Bureau of Alcohol Tobacco and Fuunns' Internal lnvtst.!a!!ion of'E}'._co~Laint
My fi"·e ori8inal tlle,sations quoted from
my letter da1cd May 10, 1997, to the
Treas~~nment ln.!2._ector General:

BATF1 responses quoted from lh•
"Synopsis• of its in1crnal invcstigalion and
finsl reoon daied S~ember 8 1997:

"I.

ATF employees have deliberately
destroyed original flreann registration
documents that they are required by law to
maintain, as noted in sworn testimony i.n
1996 by ATF Special Agent Ouy N.
ScJWble.

"Ol deiennined thal lhe ATF employ.es
refcrrtd to in the first allegation as being
suspected of destroying records were, in
&ct, CCdJ'ad tmp)oyocs who wue hired to
11si11 in the backlog of pa.perwork that
resulted from an influx of resLstrations as
per [deleted by ATF)."

Page 23 (refcrcntes arc to the FOlA ~ge
numbers) .ttatcs dw COfttracc employees
\lt't:f'e suspected resardil'IS missing NFA
paperwork duriJl& 1986-37; on page 22,
~1t. Schaible apparently idenlifiC$ this same
incidem u the wbjec:A of his May 21, 1996,
!testimony, yet in his 1996 tc!ftimony Mr.
ISchaible SIJlles thal BATF employees could
•havo thrown aw.y lhe dd'eodant'a
•registration document1in1994. It docs oot
:appear that these discrepant statements,
icach made under oath, can be reconciled.

In analyses of data made public by ATP, I
found !hat duriJl& 1992 to 1996, AlF may
have added 119 or more firearms to the
NFRTR whi<h were orisjnally registered
on Form I or Form 4467 during 1934 10
1971, for which ATF J or deliberately
ost
destroyed Ille orisjnal record~•

"'Ot'pending on the year in question, if there
was an inc:rcasc in wry National Firearm Act
(NFA) finorm resjstratiom, u alleged, thil
may have been an adjustment u a resull of
a dillettn lbrm 1>1mber oc ttginntion data
for the particular fire.rm."

BATF otrers no empirical evidence for this
hypothetical interprewion. and does not
_,, ditectly answer the question. Proof of
llreorml b<iog added may be etllblished by
detttminlng If a "docket number" (firs!
...ated in 1976 for keepina ltaclc of
incoming paperwork) is found on the
recocds of fireanns ttgistered in oc before
1971, and by other methods that BATF
a
did not emDlov.

~'l y comment.$:

Exhibit A, Pg. 518

•2. ATF employees registered almost
2.SOO untegiscered NFA firearms on form
4467 after o.O<mber I, 1968, without
proper authorization by the Congress.
In addition to not being authorized by the
Congrt-ss, such res;i.str11ion1 were
prohibited by the Supreme Court in 1971,
yet it appears that ATF registered more
than 1n unregistered NFA firearms on
Form 4467 after 1971.
I have included an example of one
apparently illegal pos<-Decembef I, 1968,
Form 4467 registration in my 1997
testimony."

"To address the second allegation, ATF
continued to rcgis.t~ weapons after 1971
becaUJO tho bacl:log of papcrwork that
resul1ed from the amnesty period was very
large and filing the documentl required
extra time. In a4dition. some individuals
were granted extra filing timo if they were
out of the count.ry when the time expired
for filing.

A statement on Form 4467 states that
"This form "8llllQI be accepted for
regisaration of a firearm excepl when
received by l>irec:Wr dUfir41 the time period
No..,mber 2, 1968, through December I,
1968... As my 1997 testimony dOQJ.mentS-,
each Form 4467 had 1 d•tt/time stamp
applied on the rear 10 indicate receipt, and
acrual time filed in some cases was in 1969~
however. a Freedom of Information Act
request disclosed that the date of
regisuation. which BATI' reports in its
statistics. is the actual d11e the form was
filled out by the persoa who rtgistered tho
lireamt, and BATF's own elm indicate that
nearly 2,SOO firtarms were registertd on
Form 4467 after 1968.

BATF has not an.swtred whether it has
Illegally registered fireanns on Fonn 4467,
despite clear evidence that it has done so.
Noubly, BATP has not disdosM any
required notice ln the Federal Regist~r or
other Congressi-Onal authorization to
accept regisc11tions after DecerOOer I,
1968.

Exhibit A, Pg. 519

"3. ATF empl<»- Edwvd M. Owen, Jr.
and Terry L. Cates committed felooy
perjury in ktterl written to me dated March
23, 1m and July 29, 1993, respectr...iy.

Mr. Owen and Mr. Cales eoch alleged Iha!
" unlawful traft:idcer in drugs with an
an
extensive oriminaJ record" WIS in
possession ofa .4 10 bore H&R Handy.Oun
"while oomfttting drug violations."

This alleged i....,.,. of criminal oonduci
wu uaed 10 deny my pe1i0oft to ...,,... 1he
H&R Handy-Oun ftom the NFA as a
coDector't item.

'1\<prdin3 ~son's dVrd alleplion, 1he
inimfuJ infO<Tnation fumislled to Larson by
[deleted by ATF) and [deleted by ATF) io
their respective letters involves a criminal
case inOregon investigated bY ATF. The
suspect, John David Dudley, a multiconvicced felon. dealt in narcotics and
illegally possessed ftrtanns wbicb Included
an H&R Handy-Oun. Dudley waa charged
and subsequenUy pied guilly in Federal
court on Federal flrwms violations.

The H&.R Handy-Gun in quesaion was. in
facl~ in the possession of an acquaintance
Of the drug lrafficker at the time of the
violations. BATF's manner of lllting
''pos.1cssion" ~ies that the trafficker was
carryins 1he H&R Handy-Oun on bis

person at the time the drug crimes were
committed. BATF has interpreted that the
drug trafficlcer was in ''constructive"
po<sessioo of 1he H&R Handy-Oun, """"
!hough he WIS not charged wi1h illeplly
possessing it (see page 27 of the imemaS
BATFreport). Ther• is the tnnh, and then
tbefe is the legal truth.

Exhibit A, Pg. 520

(3, continued) In fact, a Freedom of
Information Aa Request disclosed that the
Handy-Gun was recovc:rod from an
acquaintance of the trafficker, who said
that the trafficker had given it to him for
safe-keeping("" pages 212-215, 222-230,
and 233·236ofmy 1996teotimony).

Any person who petitions for removal of a
firearm from the NFA n•111 1111e the

rtasons under penalty or perjury.
The plain language ofthe statue at Title 26,
U.S.C., § S86IQ) and§ S871 applles to any
person who knowinsJy makes or causts the
making of a false entry on any document
required to be- prepared as a resu1t of
admini!lering the NFA.

As noted, the characterization may not
have been legally false~ however, it wu
definitely misleacUng,

Both Mr. Owen and Mr. Clles deliberately ·.
·• cited.•

I rus1fied 111e &a~

Exhibit A, Pg. 521

"4. Cena.in tregistratk>n activity' that ATF
classifies as "011-lER" could includo
regi1na1ions fi rearm$ that one or more
ATF emplo)'ttS registered contrary to law,
because ATF has refused to disclose the
na1u~ or this Tegistration 1ctivily.'

or

Larson's fourth allegation suggC$ts that During each year ITom 1992 to 1996 (the
ATF is using the ..other'' category to illegal most reCent year for which the BATF has
register firearms. However, this category is released NFRTR data), there were more
used when the oomputer ptogram cannot than 8,000 entries under the "Onffi.R''
recognize a non-st&ndatd document that has data catcgruy. What arc these "nonbeen submitted for registration.
standard documents?"

To the best of my k:now1cdge, l"ve nevtt For instance, some registrations were There is a separaJe "LTR" u1egory, which
heard o( any fonns numbtred Other than 1, actu&lly fiJcd in COITelpol'ldence 01'1 Clary Schai>le lltted contains flfC&ml! thll
2, 3, 4, S, 6, 9, JO or 4467 being used to letterhead,
were registered or cransferred on
leUethead, when standard forms were not
register or transfer NFA firearms.
available.

According to a letter to me dated Januuy
9, 1997, from NFA Branch Chief Nereida
W. Levin-. the 'OTHER' category i1
'comprised of registrations where the form
number is different &om the other ones
cabulaied.'

If an ATF employee entering the
infonnation into the computer e:ntm a
Form l as a Fonn 33, the program will
15sign the docummt to the "other' column.

A normal oomputer program for sensitive
documents would not accept the incorrect
entry of a form, and data entry could not
proceed. How many other errors were
created in the NFRTR because of a &ilure
to properly debug the computer tollwue?

Ms. Levine, however, hu declined to The fact that the form is Clllefed in the Neither does it mean that an inc:orroctly
provide the names or numben of these ..other" oolumn does not mean that tho registered or tr&nJfctred firurm con be
firwm is illegally regiJtered.
located in the NFRlR. Conlider the
forms.
1111ement of Mr. Thomas Buaey in the
October t99S *"RoU cau Traiaing"' seuion:
Coupled with the other evidence of
registration mismanagement I have
'1t wu line to begin putting ~ in
accuf'lte • year ago or at asc be.
documented, it appear> that the "On!ER'
guaranteed a year ago ii wu OOfTcct, but
c.a.egocy may represent firearms that we~
what are you going to do with the entrieJ
registered inegally, as noted in my 1997
that go back to the early '80a and the '70s
teJtimony.•

and 1he •6os?"

Exhibit A, Pg. 522

' 5. It appean dial a 1ijnificant oomber of
NFA firearms are registered to per90ns
who are decwed, and that ATI' bu been
aware of this fact since at least 1981 and
done nothir@: about it, as noted in my 1997
testimony.

"'In his fifth allegation. Larson states that
some of the NFA wtapons may be
registered to deceased persons. While it is
po,.;ble that, unknown to ATI', ''"""NFA
weapom may be registered to deceued
individuals. the integrity of the NFA jg
i.ncurnbent upon the indiiiiduals who possess
Consequ<nlly, a signifi<llrt number of NFA legally regiaered fire.urns 10 report dea1h1
firca.rms are now illegJUy possessed by and reregisrcr the wespon.
persons who are unaware that they a.re in
violation of the law.
The reason is that many firearms classified
as 'Any Other Weapon' are rare coUectot's
items that many people do not oonslda
weapons, as noted in both my 1996 and
1997 testimonies.

"'Unknown to Am" Excuse me.
N my testimony and letter to t~ IO an internal BATF ttpon dated July I,
1981, by BATF employte Deron llobbt.
slates: "We have the condition where
people who registtted 6rearmJ under the
original National Firunns Act at age 65
would now be 112 yean old. We know
that thc.e people att dead and their heirs

have not taken the necessary steps to
contact us so that the involunwy transfer
created by the registrant's death can be
formalized...

Exhibit A, Pg. 523

(S. continued) AT'F's most recent data (as
ofDecerrber Jt, t996) disclose1hat oflhc

14,259 fircanns registered during 1934 to
t939, exactly t t,t 75 (78.4 peroent) are still
currently owned by the person or enti1y
that registered or acquired it during that
same time period.
And of the 58,904 firearms registered in
1968., a stunning 85,4 percent are still
owned as of 1996 by the same pcnons who
registemi or received them by trans.fer in
t968.

Consider dw in 1981, an internal ATF
study reported: We have the condition
where people who rqiiaered fireamtJ
under the origjnll National Firearms Act 11
age 65 would now be 112 years old.

BATF's most reoent (as of December 31,
t 996) data diJClooe that ex11<1ty tOS, 556
persons have never legally trln$fe:rred the
ownership of machineguns. bazook~
sawed-olf shotguns, hand grenades, antitank rifles, and similar devices that they
regtstered or acquired by transfer In or
before 1971.
Of dte SS,904 amnesty registrations,
.S0,314 (SS.4%) are stiUowned by the same
person. Since 1hc sooiaJ .se<:urity number
was a requited data field, it would take no
more than a few hours to determine from
the Social Security Death Index exactly
how many NFA firunns are registered to
people who a.re dead-and when those
people died.

We know that the5e people are dead and
cheir heirs have [lot taken the necessary
steps to contact us to that the im·oluntary
1rans(er created by the regi,.rant's dnth
can be fonnalized."

Exhibit A, Pg. 524

~

My summary of the problems, issues, and BATFs , _ quoted &om !he "Synopsis" My comments:
proposed sokitions, quoted from my ldter of ill inremal investigation and finaJ rq>ort
997, co C TreaSW)' d>tod Sq>lember 8, 1997; ,
he
d>tod May 10, 1
D~menc Ins-or Cltneral:
"One resuh ofAlFs negJigenoe is that some
persons who own certain rare, valuable
firearms that have special vatue to collectors
been instanlly transformod into
criminals.

"'""

The Sth Amendment apparently applies to
che Bureau of Alcohol, Tobaoco and
Firunns as an institution. But who ans~'efl
tbr the institution?

The reason is that through natu11l disascers
(such as the reoenc floods in North Dal<OU,
house fires, and similar tragic events), the
owners of these 6.reanns have lost their
copies of the documencs which pr<)''e their
lawful ownership, and tho law does not
allow these firearms to be voluntarily rere.ai$tered. •

Exhibit A, Pg. 525

SOLVTION

#f :
"Admini!tr&timy [Lanon'o] &ntrec:onmend.oonistoremow
removing approxinwdy 17,000 'curio or t7,000"lnyotberweap00s"fi3'odunderthe
relic' fireanns cla.ssi6ed u 'any other NFA.
•
weapon' under the NFA, wtich - e
originally commMcaJly manufactW'ed in or
before 1934 (but not replK:as thereof).

The Congress detennmod that me.. '1ny
other wtapon• firnnns were mainly
collector's items and not likely to be used as
wee.pons in 1960.

AJ1hougb Congress did enable firearms
dassified u collector"• items to be removtd
from the NFA, contrtry to Larson's
interpretatjon it did not mandate their
removal. Therefor~ if an individual weapon
It was not untiJ 1968 t hat the Congr8" is suggested for remova~ ATF will consider
pu9ed legislation enabling these fircann5 to the particular 6rwm on a cate·by<ase basis
be removed from the NFA 11 collecton and determine if remov.I is warranted.
itans:

1 never stated anywhere il'l my Jetter of
complaint, or in either my 1996 or 1997
testimony, that 1he Coogreu manda.lCd any
firearm to be removed from 1he NFA as a
colloctor's item. Identify ~aetly whete I
stated this. That is not what the law says,
and I didn't say thaL On page 11S of my
1996 cestimooy, J did mte; "Mr. Chairman,
no legal evidence exists to show that the
Congress aougbl to ""elude the [Marble's
·Otme Getter G\ut] from the removal!
provision under lhe 1968 Act." I made chis.
-because of the ftct that the BATF
fonnally delennined (tn writing) that the
Oune Getter was mainly a co!Jec:tor's item
and wtS unlilcely to be used ss a weapon;
h:w;evcr, tho BATF legal counsel later took
the position that it neY«'Cheless could noc. be
removed because the Congress excluded it
from Che· removal provision. My 1996
testimony (see pages IfJ7 to 118) cites the
law, legislative history, and documents that
there is no l<galfi vaM and rdiabl• evidence
to •" """" BAT!"J inlem<etation.

Exhibit A, Pg. 526

SOLt.mOl'I #2: 'Eaublishlng a 90-<ay
amnaoy period to ollow per10"' ..n. may
111.. 1.-...ly loll lheir copic> of the
rqjluatioo rom. 10 ,....;..er lheoc
firTho eo..si- hu IUthori=I ad! amnesty
periods 10 be autifithed by the S«reury of
oho Trwury undc< § 207(d) or the Gun
Conlrol Acl or 1961..

"'Funhetmofe, to address Larton'1 eecond
aolution, 1r tho oriainal ,..;-ion or •
fimnn Is mitpllced, the owner need> od.y
to..,..... ATF 10 ol><ain "'°'her oopy-.

BATF pmumes a foct nol In OYid<nc.. and

for wt1":h ,........,.. doWI .,.;,,r namely,
lhat BATF hu 11111 lotl or ~ ii>
copi<S or original rqiotrations. It _ .
dw for mo<e !hon 100,000 N'FA l l t tho-e Is;... ...... - - (•ho oriaiMI
regi-) in Iha N'FRTR 10 P""'O
""ncnbip. As-cdiamy1996tea~
(see pages 92 to 9S) and 1997 t. .imoay
(,..page 72), I ulted Mr. Oll)' Sd!aible if
BATF bad ever added firearms co the
N'F'RTR becau,. BATF had no reoo<d of 1he
original tqpstration-but the oriainaJ Ownef
did. Ho stated: ..Yes. I assume chll'1

happened."

BATF'1 conclu1ion i1
since it appears that BATF hu
lost or deslroyed oriaJnal re&Jwatlon1.
prcmatur~

Thtre it no need to r&-«fPsttt, and there it In a "Response to ktter ffom Senator
no need to utablilh an amnesty period as (J.,,,.. A.) McC~re" dated l'lovtmber 29,
1979, bearing symbols LL:J.ll>.oliw, PhUip B.
Lanon......,u.
Heyman. A>liJa.w Auorncy 0.-111,
Criminal Division; and UWT- l.ipt>t.
CIUel'; General Litip•ioo • IApl Mvice
Secrioo, Criminal DMs<on.
oC
lustico, swed lhal ii' on lndMduol bad a
valid NFA 6rearm ,..,.;.- ~
bul that BATF ~ not fiod any record
it in lhe N'f'RTR, "Iha only IOlution -ad
be 10 declare "'°'her arMelly period. The
Sec:mary (oflhe n.u.ry) 11~10
do thU under e>cistiOA ltfllolation."

°"*'"""'

or

Exhibit A, Pg. 527

130
l

J-rll.1991
Ncr-cidaWi....Cllic( Nlllionol ;.......,. Act Branch
Bureau of Alcohol. T - and Fireums
6SO Ma1111Chutett1 Avenue, N.W.
Wulli"8'00. D.C. 20226
Dear Chief Levine:

I am wrilifW lhiJ )ei1cr to request &cm you a written SlU.ement &om the Burau or Alcohol. Tobacco
and f;rearms (BATF) regardiJ1i 1he lepl ,..,,,. of four Na1ional Firearms Acl (NI'A) fi""""' lhal
J currently O'W'1\ which apparently .,•ere illegally registered ye.an before J acquired mem_ as wen as
lhe BATF"s po6cy regardiJ1i 11>< l<gal status of miler N'FA fircarma lhal may""".,..,, illegally
rcaJsc.erod without the knowledge oflheir a.urart owners.
t cltcuued 1hae-..XS • tomt lu!gth in my 1997 testimr:xiy bcforc the Subco11,.1inee oa Tnasury.
- . I Scnb 11111Gencnl()owr-...-Appopiatioos.IO1111: poinl ol~ ~ad>
fimrmb)"acnal-and ciriogar pr<Mdiogrdmm-

-

kispa ..... dmBATFdid..,.addrusrmyoltheseisoucsiails-iacemolor

• •.

lhal

;.bolod e» myl<Slimony. I also find a - IO Snasint dm you. u Cllid'ofth< National F"ireanns
/\£< Brw:ll, -.Id - he ""'""''ied aboul the and m.qrily of the Narional F'mnns
Rqcboidioo and Tlllldlr-(NFR'Jll). After o1. theody documenWion lhat rmy lawfillof an N'FA Ms 10 ;,..lfy the l<gllity of ils J'O'=rion. are _ , is>ued b)" the MFA

-

Whal 0N'FA filwml-."'8i11ered iDeplly7 Whit ;fBATF's m:ords ll't inaccut1le, or mi~
What if BATF chooles to confisca.te an affected NFA fire&rm-even though its currcm owner
acquired the firearm lawfully, BATf approved the tranlaCtion. and the currmt owner bad no
Jcnowtcdae or past det'ectt i.n the hist Of')' of the firearm which BATF lalc.t in1
erpre11 a1 U'lllSforming
lhe fireann .... ~lepl conmblnd?
die lawNl owner ha"' &Jiii in •he '•hie' 10 hi• "'her firearm,
and noly tocally upon die documaution ofan approwd "'1l>aClion b)" the BATF u evideDce lhal he
or she lawfillly _ . , , , . lireann? Apparemly not.

can

My.......,..,. not hypothc<ical, ~or a·~ expedilioo' 10 cry and create pol>lcms
lhaldo ....... boclustBATFa.salresdy • I ··--NFAfitutmaftll' . . . . . . . . .
i11ep1y ,....- • _..nm. ia die pasa. lhougb wUboul laiowl1 l.. b)" ks owner and aftll' BATF
had - - Ibo u....ic. of its owoalilip.
k is a &a Iha! BATF
.,......ia lhM • load -

-·ed ..

NFA 6reum &om Noel Nopollili off--., Alab, oo 1111:
ill<gtly rq!istcrcd _....... io ... pu br ........... -.
BATF Mt Napolilli a la~-ful 1<gimotioo- IOr die&..... ,.!Joo he putdmed ii !Or
Sl.SOO in t91S Wbtn BATF moved to saze the titeonn ia 1991. Mt. Nopollili filed a t0

Exhibit A, Pg. 528

131
2

demand ics mum. bul dropped tbe-.;, bef0tt tbe case coold be~ to trial. James H. J<tlrics
DJ. Esq, ofGICC1oboro, North Carotina, "1lO aaed u Mr. Napollili's attorney, told me that the case
wu dropped because Mr. Napolliti's wife was afraid that BATF agencs"""" going to kill Mr.
Napoiii; in n:uliarion fil< the law.Dt. Since this period was during the unpleasantness 11 Ruby Ridge
and WW>, Mr. Napollili's wife's conecms be understandable, and probably any pcr>OCl "1lO is
married can UJ1dersiand the need for domescic uanquilil)'. In any case, Mr. NapoUili, as flt as be
knew, lawfu.IJy purchased the firearm and was issued a registration document by BATF in 198.S.
Suddenly, in 1992, BATF alleged thc<c was absolutdy oo record that the fireann had ever been
registered, even lhougb BATF-bad issued 1 registration document entitling Mr. NapoUili to lawfully
possess !he firwm. I included a copy of tbe Napolho case with my April 8, 1997, testimony, and at
that lime the Subcommittee placed it iato itt permaneat files.

The Tax Code and the NFA eadt probiliit cfudosun: of the pasl rustory ofNFA &ream!$ because such
information. or documeMs are considered to be "'lax return.. information,. so the average person who
owns an NFA firearm cannot ieanl anything about its proveoance-&egal or othttwise. My ea.se is
l1ltber wwsual because through the bumble W.... ofdiligence l learned the history of<enain fireanns
that I own. The average person bas~ means of questioning a forfeiture action by BATF based on
the provenance of a 6reann, or any protcctioo against BATF flat out lyiJ>g.
l mn theairrem lawful owner orfour smooth bo<e H&R llan<ly-Ouns bearill8 serial nwnben SS92,
29691, l-088S, and S3637, as mdenccd by my possession oh BATF issued-and-approved Form 4
for ...it firearln. Jbese at< the only documenu which Mdence my lawful owncn!ip of tbese
~and BATF is the only entity wNcb can is.sue them. I obtained some documcnt.s., or copies
of doc:umenU, reprdiog past tJansf«S of these fireanns from the former ownen, mainly because tb<y
rcspcctcd my dedication as a tirca:rms researcher and thought the documcots would bt' an interesting
addition 10 my collection.
b was nae umil 1996, under Vlrious F.-oflnfoonalioo (FOIA) requesu. that I was able to team
from BATF the dates of original regisuaiion of the firearms lhat I own. On the basi$ of thi5
information 5Upplied by BATF, I believe that the four firearms identified above were illegally
resistered by BATF and thal BATF - an~ to coofiscate them u corunband ll soroe unknowo
time in lhe future for that reasoa. Since the accuracy and integrity of BATF's firearm regi.s:1ration
records is ulllcnown., lhe siruatioo tba& I have identified is of potential concern to tens of thousands
ofpeople who probably believe they legally own firearms after rccc:iving approved rcgjstratioo aod
tnmftt fil<ms from theBATF. The~ ilegal registnbons ofmy liteanns on Form 3 or Form
4 ooosidenbly widens the potemial for other ilJegJl regisuarioos, because these are very commonly
used in ordinary 1ran.sactions to uansfet tide ofownership.
A group of"'100Ch bore H&R Handy-Oms bcariJ1@ serial JNmbcn SS92, 439l-O, l-088S, S2SS 1, and
S3637 were t-r&nsfel'l'td by a.nd from H&R. to Pe1er Dowd io 1986, using a Form 3 transfer form
appoved by BATF. Yet, these were oot •oew• firearms; these guns had e.isted since at lwc 1934.
Asrrry 1997 tesUm<>ny documents, H&R advised BATF in writing oo November 27, 19S3, that "H
&. Rhas 001......Cacturcd Haody-Ouns since the (NFA) law was passed in 1934," and !al« swes
that "in the 1"' two (2) y<ars, all our Handy Guns in .410 gauge and 28 gauge were exported to

Exhibit A, Pg. 529

132
3

Canada... Smal numbers SS92 and SOSSS are new in their original boxes. and focmer H&.R
employee$ ha•le 00..isod me that H&R had possessed these guns fot many years. Yet.. udder a FOlA
request, BATF stated tba1 tlv<c of these gu.,._which I bougha duri.ng the early 1990t-wer<
origjnally regisieted by BATF on April 16. 1986. the da!O of appl;carion fur their transfer by ~
indeed. this i.s the same date listed on lhc Form l transfer from H&.R to Mr. Dowd.

A manufactw'Cf is supposed to [e-mail] unregistered NFA firearms it bas maouflCtW'Od on Form l.
and Form 3 ;, supposed to be only used to transfer the ownenhip of NFA 6reanns tlw are already
registered. Registering an NFA firearm on Fonn 3 seems to be a clever way to register an
unrqiist<nlllic NFA 6rcann. because h places the firearm into the NFRTR. and raises questions about
the accuncy and ~ ofthe NFRTR-and the cooduet of wbomev<r approved the transfen (m
tbi.s panicular case, the Fonn J traosfen were approved by Gary Sctw'bLe via facsimile signature.
w hich may also rmsc questions about who has access to the signature facsimile madline). As you
may know, the U.S. Supreme Court prohibited the registration of such unregistered NFA &rearms
ooApril s. 1971. c_..,my. d appears tba1 BATF ;]legally registerod the&... lireonnsclescn"bed
above. three of which I lawfully purchased and was i5"'ed lawful registrarioos by BATF.
The other smoolh bore HkR Handy-Oun in question that I own is a rare 28 gauge bearing st.rial
DJmber 29691. I purchased ir: .&om the eswe of its former owner. whose executrix. gave me the old
registration (a Fonn4 that wu approved by BATF on March 23, 1972). According to BATF, this
fircann V.ti originally ~stered on March 2, 1972, more than a year after the U.S. Supreme Coun
prohibited such a rcgisrijon Finally, the old Form 4 that I possess bears the signab= of the pcBOn
who approved iu _,aosfer 10 iis now-deoea.sed former owner: the Director of the tbeft..Akoho~
Tobacoo and F"ueanns DMsion. Rex 0 . Davis. Based on examples ofMr. Davis' ~gnature on official
BATF teucrs io Mi umdatcd court case during the same time: period. it appcan that Mr. Davis is not
tile penon who signed this Form 4. Thus, in oddhion to the firearm bang illegally rt@isteted by
BATF. it appears tlw someone within BATF f0<ged Mr. Davis'.._..,., Both of the ....us that
I have document~an apparel'ltly ille@:al regis.tratiOl\ and . an apparemly forged transfer
documcnt--dcfinitdy arc vio1abons of the NFA.

I respectfully request that you, a.s Chief of the NFA Branch, state in writing to me what BATF's
policy is reaarding the legal surus ofthese four smooth bore H&R Handy-Oms and. specifically,
"Miler BATF ._.is them as law!Ully owned by me or as unlawful c:on<nband bo<ouoe they were
apporoidy illcgaDy rqpsr"ed or illcgaDy tnnsfcm:d (or both) without my knowledge by BATF ycon

befote I pwchased them. This is a law enforcement, compliance~ regulatory. and policy issue thal
potentially affects me u well u thousands of ocbet pet$OO$ who have lawfully purdwed NFA
fin:arms as evidenced by BATF's approvals of these transactions.

I am going to let penooal concerns involving selected NFA firearms that I legally purchased speak.
in part, as weU. for the many people who have comacc:ed me over the yars about similar conc:ems.
These people ate genuinely terrified ofBATF as .. um of tbe lmemal Revaiue SeMc:e (lllS~ and
8$ a law enforccmen1 agency dw: has in tbe-past over-rncted in situations in wbicb human life was
apparently unnecessarily lost. No pcrsoo should fear being victimized by the ua1ry,fuJ actions of a
fcdcral Law enforcement agency.

Exhibit A, Pg. 530

lSS
4

PfOYide
writtai
.. .,qiocalceacrionapias olliaal - ·and policy
pu(onmnoe ot r.i..xs, lhrougll appropriate

If JOU 1re -

O< . . . - . . , IO

~.--....1

!he

me with a

polilioo,

JOU ~--r--.C.in
cbamds.

olficiol

v"'I truly )'OUl1,

Erie M. Laraon
P.O. Bod497
Tuoma Part, Marytand 20913

cc:

M1. Catol ikfgen. Ofllce of !he lospOe\0< General. Oq>anment of the Trcuwy
The H000tlble Tan Kolbe, Chairman

S<lbcommittee
The_.,.. oo

Tmsury, Pcsul SeMce and Oenual Go.....Burton. Chainnln
._Committee oa Gownmxm RdOrm and o..niab&
11le llooo<..... Onin G. llMch,
Seoot• Cotminee oo lhe Judiciuy

°""""""

Exhibit A, Pg. 531

13'

DEPARTMENT OF THE. TACASUR Y
•UftlA U O F ALCO HOL. TOe .ACC.0 ANO l' UllllA• MS
WA'lt41NGTOH. 0 ,C..101.11

F: HFA:GS

17'.101/98-4S16

Kr. Cric H. Larson

PO Box 5491
Takoma Park. M 20913
D
D••r Hr. Lars on;
This is in response to your letter of J•nua ry ll, 1998, in
w
hich you request confirmation of the r•;ittration sta tus
ot tour Harrin9ton and Richardson Handy Cun1.

The National Fireaaas Refi!istration and Tra n•fe r Record
retleet• that the tollowin9 four H•ndy Gu.na a r e 1.a vtu..lly

re9i ater•d to you a s follows:
Serial
Seri al
Serial
Serial

number
number
number
number

5592, ror:m 4, approved OCtober 6, 1989
29691, Form 4, eppro•ed Auquat 22, 1994
50885, Fona 4, approved OCtot>er 24, 1989
S3631, Foren 4, approved October 11, 1990

Should any additional information be needed, plea se contact
ua at C202} 927-8330.

Chi ef, Nationai Firea.an.J Act &ranch

Exhibit A, Pg. 532

185

Milch 6, 1998
Nereida w. Levine. Chid'
Ntliooalf'weanu A<tBraod!
o( A1cobo1. T-aad Forarms
650 M•m±,,..,,s Awiue. N.W.
Wullingtoo, D.C. 20226

Del< Chief Levine:

ThlNc you for yout lettcrofMard> 3, 1998, respondins to my lctterdated'Januaiy31 , 1991,

'°"' (

f<Ptdine the ltpl SlllUI o(
4) MR Handy-Ou... that art currtntly r.gi.ttred 10 me, ......
that they wtr< apparaaly iDtplly "1Psttred by BATF ,.;lhout my blowledge . _ )'tin befo<e I
purdlUed !hem, and thus tllac 6nonu may be aibject 10 fotfeOure. Tbele linonm i.- aerill
_ , rn>l, 29691, SOU.S, aad S~7. 1 nioed a
-apec:illc
- -as wdl as BATF'a po&eies rq:udios NfA firearms it may -illqply ....creel
ot tr&Mfared in tbr: pas1--unbowri to their QJITml bwfW owoen.

.-.rqo...nom-

YOllf letter statei that "1he Nallooal FUe8nns RqpllTllion Roeo<d rdloc:u 1hOl the(at) !bur Handy
Oun& are lawfully registered'" to me. Thi1 response does noc Mty Address the iSIUCI thll l railed,
u explained below.

°""is

!Or......,..._

Thero""' three t!>na• at isauc.
wbether I CCJ<Jld ... prot<CUted
,....-was there somt crWne1 I think the 1mwer is ckarty no h is aoc a crime to pouaa a
- t h a t wutwr .....r.md «reaisttred i11 "1olalloa a(lh<NalionalF.....,.. tv:t. CNfAi
Nollq ill Title 26, United SW. Code.§ Sl61 - oo.

Socood is whdhtr any o f - IOur firconns are .,bjoc:< 10 fOrftiiu"' under Tiiie 26, Uoited
Swes Code.§ ssn. That 9MllW to enoompus any fircann evtt"" DJvoMd in a violadoa of'lhe
statute. I don't see bow t 1tatancnt that the fisted gwu are rtgi51ered to me means BATF is
daimins the-listed auos were ne"YCI', to its knowledae. involved in 1 violation oltbe NfA

'

--jua

In lllon. I belie.. I am NJ< tt..n criminal pn>0c•:utioe with rqllfd 10 Iha< lO<ir m-.n., ond I
always lhouihl lhaL - · ii- as now, I doG'l - any 1<p
• . o• BATF lllol
BATF docm't thiolc theat f - tlranm..., - aibject 10 _...._ I doll't
becoule
BATF aates these 6ranm .-c f'Oli:Rcnd 10 me. 1DtM1 they were Dl:Wf" rq;istered « awafC:ttd
io ¥iolalioG oflhe NfA and, - - aJbjoc:< to~
-

T1Ud is wbaE BATF's poiilion b rep-ding the legal status of NFA firearms tblt the BATF itldf
illtplly registered trantfmed. The Jaw seems to stale dw .uch firearms are tubjecc 10
forfeirure regardless ofv.·hcn the violation of law occurred, Md regardless ofwhether the perJOn
who bol<jht the fireamu wu aw..., of any sud> viol&tiorw. Dots BATF take any poaition tllot
there. is a staMe of limiwM>nl upon IUdl forfcirum?

°'

Exhibit A, Pg. 533

136
2
All imporu.nl- o(my JUIUOI)' 31, 1998, Ima ..ted BATF for a - - ~ iu
.;.wpoinl ~· bftirureaaioo oraaioos agaiml-opeci& & - - I~
thacfon:, wry modi _.a... ii if you would be lciod _.., IO - • BA'!1''1 policy ii
~any poaible f-octico .gam,i lhese four spocilic- ltBATF imends 10
.m. u.... bccauM BATF wilhoul my l:oowodge illq.olly f<l(istered or u.nsfmed any or
thcRI io !ht pu1 bcfo<e I lawfully purcbascd !hem. I would like IO be inlbrmod immodiatdy. It
BATF does not ina...S to tciu these 6rwms, J would
ii ifyou would be lciod eoougb
to 1&1te. ln writlfla,. dW BATF does not regard .any ofthese 6reumt u tubjoct to tbdeirure.

""'"""Ille

I recognlz.e there is, unfonunaidy. an advenari.al element tqanli.ng intcwprtW.ionl of law as it
rcgatds sun conltOI. I honcllly wi>h this was not so. I hope that you will aooe1>t my good wi$hea
and apoklgles for contU...ina to bring mattas of oonctrn to your lltattk>n. M.y rouon for doing
so it lh&t I wou)d like to have these issues publicly and opealy rwolved.

EricM.i..wP.O. Box 549'1
Takoma Patt. Mlrylaod 20913

cc:

The -

0.. 8unoa, ChUnmm

HOUM Commi<lee.., Oo•UllWCDI Reform an<to..nip

The llono<abl<TomKoaie, C~
Hou,. Subcommittee Oii Trea<ury, Postal SeMce, and Go""'1I Oo"""""""'
The Ho-able Orrin G. H>tch, OWnnan
Seoale Committee on the Judiciary

Exhibit A, Pg. 534

137
1

fa-yl,1999
JoboW Mtpw
Dnc:lor

BuraualAlcohol. T-tndF........,
6SOMutldutctuA-N.W.
Wuhineloo,D.C. 20226

Dear Oireccor Magaw:

I am writlng 1 alert you to a &erious O ln the Bureau of Alcoho~ Toblooo and Flr
0
aw
nrms• (BATF)
recent intem&I report tha1 was submitted to 1he Treasury Deputmenc Inspector OeneraJ in respoctte
to my May 10. 1997, lefter describing apparent misrnanaaemenc. mitCOndua,. and criminal
wr~ by BATf _.or -loy<es. Right oow 1..,. ~a c1et.;Jed nbu!Wof mony
oftbc ,_i's l!ndiop. but in the meantime would like to respecdldly lhat you oooside<
~csaiac one c/the moll ~flaws in the inLa'nal BATF inio tlfia:trim I am tiling the time
to writ• to>'°" perlOftllty, becatse I plan lO ast Chlinw Tun Koh.. Sutl cc &nictee on Treuury.
""""'Sct\'ICO, IOd Genenl Gowim- Appn>prilbons.
you to these......,. in_
• -

............ Spina.

to-

••lliH'"' "

I'm uldos,.;.. to oooside< doing now ii pnay liqlle; - , . . ~..,..
••d
.............. ... ......,,.,,.ueATF baswldod- to theNaDonal , , , _
P••• - aed T.....r.. Record (NFR.lR) bcame tbon- DO .-11althe1qpmotioo alllid
&mnns, lftcr BATf was--ed wUh a valid
by their lowfill--. I
What
_

will -

,....,mo._
1

how I .....,. of !his problen>. whol I did to '
p 1 ldently ............ tho! il
IClll&lly cociltod, .... will idcoOfy. mdhod for detcctiog the-oltllit . , . -

,... my- on the-bore HAR Handy.OU., ...

-·Arty°"""

w..poo· C&leao<Y NFA
publication in the $landold Cmoloi 'IfFirramu, the
Blw Boo#. ofOrm V"""8, tnd the Official Pria Guide to Antiqw and Modtm Fir<arms, a..,.....,.
of people NoW COtUCled me for addirional mfonnation. WbM oome of tbcM people alleged WU v<ry
~reumt hu beoome better known. through

distutblnt-that BATF had mowd to conlisatc a &mily hedloom firearm becau>e the 6tunn WU

allcsedlY not ........ but BATF added the 1iRam1 to the NFRlR data bue aft• the lawful owner
produced a valid reciJtraliocl. This bas not beeii • oommaa - . and I doo 't think more than five
people bow -IOld me this. B<cauoe the NFA and the Tax
require an NFA.._._.
to be: ,.,clod u 1 "blx mum."' these records aren't opc:a for imF 1 :tMla or rese:udL

Code'-

Until the Thomu &aey nner..,.. up tnd a a...,..;pt oCMt. BuMy'1 ranub mIU capacity as
Chid'oltho ....,_ f ' . - M Brandl....,. Krious crron ia tho NFlllR was made public. I
bdin.d thcR . . way to delumin< tho trulh . . &My o( the allepDoas of &eanm h<il>&
"addod" to the NFRTR. I then ~ the lituobao and imj>ecled Md aMlyt<d the daa ot>
firwm D•
. • •rq>arted &om the NnlRdata-_ Wlidl BATf Ila~-­
.,.,..
dy19'9. 1....-..Sthe.-dscfFannl ...... -..-19J.4to 1971,andallform
(Amndy P<riod) ~ to,.. if tile...- or • . - - dlaoged over rime. la
.

-7

Exhibit A, Pg. 535

138
2
lboofy, the ....... date o( a fimnn n:gisnwiou should out

ct-. bu1

I -

odloetwise:

....... 1qpsnotiws - - Tbis 'a .oliSl'dllelnldmBA"!Fbadadd<dl5mnm1olhcNFllTRdMa-- ..
..... ~ dilt BA"IF had ill<plly rqillcn:d NFA oo Fom1-7 (-'Jr 2.500) after
0 - . - I, 1968, ihe ~ Pa>:>d expired.
speci6cally, the _...., ....

Al the,;-. ill ihe spring or 1996, I was preparios to 1estify bdor• the H..... Subcommittee oo
T.-.y, ....... $eMoe and o..><nl ~ App<opriations. whleh u Y°" know funds BA"IF.
1........i ou addn:u this issue of'1ost-tben-fuund" lqlimations. and post·Decemba- I, 1968, Funn
4467 ~ and wundc<ed wt>ll I could do to independently confirm wbethet 6-ms ..._
indeed. beins 1dded to d1ie NFRTR. so I ca.Ued Mr. Gary N. SchaibLc, because I recognized how
seriou.1 thit i.tsue ii. For me to leStify about matters involvi.r\g poasiblc mltc0nduct or criminal
wro1111doiog by a rcdcnl law cnfuroaneu 88<1><Y is somethiil!l I reganlod u a grave nwter.
Specifically, ti- the naiwe or my~ it -.Id be pror..tiollllly Nillow ror me ou give
IUCb ........,. without provHIU>g liPfieanl .... ......,.
...... documented evid..-

"'a April

1996 iclc:pbono illknicw, l asked Mr. Sci.Ole i(;,,
to Ibo NFllTR-.. lawtbl OYoixn prodoced

dils-

raa. BA"IF had..., added firearms

valid,.....,.......,>"' ti.n -

oo iUlOrd ol .....
6reana int.be ~a Mr. SdaaiWe aaswered: -Yes. t asune u ·, hls:s:
, .. I asked Mr.
~
KWr>I bmes. and eadt time the the tarnc; I dc6oildy did out
Mr. Schoiile abo stmd !bot BA"IF bad iqis<erod NFA firearms cm Fom14467

..._bin.

alt«D
•"I, 1968, butcculdaotexpbialhose~rqbterodiD 1m...,....,(Ad
,..,..,..._ ...,. prollibotod by., April S, 1?71, U.S. 5upr-. Coun decbioo) My........, ol

una.a with Mr. Sdloible appean"" harioslUlOl'd).

18 "'96 ol my 1996 · -

< - - ,,n-.1
-

In my 1997 l<wimony, l simply canied my 1996 fi"""'8J forwvd one year and dealt with this issue
in coaoidmbly mote dcnil. Spccifically, I d<teimUiod lhat BA"IF may have added 119 oc mote

6""""' 10 die NFRTR ~ 1992 to 1996 (!ho..,. reoa11-f0r which ..... - • theo av~)

or

after be.ins conltontod with a valid regisuation (toe Net St 10 67 my 1997 testimony. in the
off.cial printed hcarina record). In a previous Setter, NFA Branch Chief Nereida W. Levine stated
tbM ldjJstmcnls lO da&a to correct errors may cau1C changes in the statistics. and that if a fircann was
l&wl\illy rqi11erocl bu1 not in lhc NFRTR dala base. it -.Id be added.
In my Mly 10, 1997, complaint to lhc Treasury Dq>artmcnt lmp<etoc Oenenl, • -od. m pon:

In analylCI oldw made public by A"IF, 1 - lhat ~ 1992 lo 1996, ATF may haw
addod 119 or_. tinanns to the NFRTR wl9c:h _.. ociiPm11y .......,.i cm Funn 1 or
Focm-7 during 1934 IO 1971, IDr which A"IF .... oc ddibcnldy deltro)'od doc oriaiml

-

---•or
The ·"IJ• :

ri

c ol IUCh rqisuwioas "losl or cldiberatdy ~by BA"IF ii dlol if the lawill
lw"'l'J&1...._lbe_ilo.wlyO'Wl'onnocl Imo llOlawfiil.,.....m..d tlm

aobodyClft.,_ The prown fig ol Ad loo1 by BATF -

....P.. lhol aaotbu .....-y period

Exhibit A, Pg. 536

139
3
bo~ to CO<TOCI

di< NFRTR, to the sbk.. io dlis milt«,... .... !ip. b> a~ to

£1..,.. A.) McCbe'" by Pliilip B. Hcymaoo ud .._..,.Lippe oftbe
o.,.-of--Nowni>a 29. 1979. bariog symbols u..JJD..;w. dm ih lawful
praalled a ..W ,.giSUllioo for,,,_ oo oocord in tlle NFRTR -ed, "the ody toluDoo
lcru< !tom 5-or

would bo 10 d<daro ........ amnesiy period. Tb< Scaewy (o/'1110 Troauy) is ....,._ed to do
this unde< cxiJting ieplaiioo. •

BATF'i intem&I investigation into djs maner is unsa'lisfaaory, bocMJJe k leaves the question of"1osr:fhen..(ouDd regi11ra1k>ns unanswered. Speci6calty, the BATF repcN1 swea:
Depending on the year in qoesbon, if there wu an increue in any Natk>nal firearms Act
(NFA) firwm regist111ioos, u alleged. this may have beeo an adjusi.- u a result of a
diO't rtnl form numbor or registration date for the part.iculu 6narm.

----lcpl

nm response to my aJ)tgation is unsatisfactory because the increues 1 documcmed certainly ""may
have beeo" 11>t rauh of any number or things. and becawe the r - is ao< kplly ddlMive;
indeed, BATl' has died oo empirical. - e d evideoce bodQna "I' ilJ . _ .

1a--.1 ~· lcmcnemdbod mmytcsrimoaydm
oerllioly- lhe iocreues io NFA fitarm regis1nboas dlal I d<Uclod .... in Ilia. di< ...... of
BATF-.&w1111 to die NFltlR after b<illg - e d willl ..iid ,....,-. by d>e W - '
lawfiJJ ownera. Tb< - . . . . ........ in foci, is ........Ned 7' to 77 of.., 1997
1...m-y (apdl...,. tbc ol!idaJ prioud lxoriog oocord). IA bric( tlle mcUod iovolw< ~
d>e"doclccl numbcr'" io doe NFlllR for specific~ v.ilh the oripal ..pu.boa dotes ofU....
finonm. lo awoxinwdy 1976. BATF bepa assipq Wlique "doc:bl ....-.rto I I wOtl<
(u:h u NFA _,,, o
qsiob-and transfer forms) lhat come in for pc c . ... Aa-i.v. wn.
I lwve allopd lhol 119 0< more firearms may have b=> added to the NFR'TR ~ 1992 to 1996,
IOr oriainal Y'*'I of rcsi>tratioo from 1934 to 1971; and notc lhat NFA Broncb Chief Levine -ed
10 me in a Jetter dated Januaty 9, 1996, that 1 firearm ~Jd be added to lhe Natklnal Firearms
RegiMracion and Transfer Record if the information was not already in the Record."

-cd

Oin:ctor Mapw, 1 linlc* computer run that ~cd originaJ yeatt of reai11nrion or NFA fireanns

&om I~ to 1971 with "doclcel numbers" might well concluoively establiohwhelbecor ao< BATF
loel 0< destro)'ecl cr'8iNI ~and was fO<COCI 10 add them bade when
with valid
rqistrwtic>nsbythefitunns' ownen. Halireann oripwly"8lstt<cd in 1936or l96l0< l9S4or .
1962 0< 194S bad a "doctcl . . - : thll wouid bo pretty conck.oi>c cvidcnce thll doe fir-.n bad
bcm ~to tbc N'FRTI\ u the result of a
rue could bo dooe
in U linle al '0 to 20 minutes;. ii is DOI c:ompficared

lost,._ Such•-

or....... """""- .....,.

any

verificalioa aod impection of
_.-wc1oo •• idealmcd
iD auch a t<at0b - * I 10 be It wwld aho i.v. to be - - if
, . _ , . '1wal:s"., ....._
tho< - - • I isigwidl ........
..... IS IO It'/ ud .. -&arms bad bcm added.

_..aqoxnc<

dioR-...,

Exhibit A, Pg. 537

140
4
Tho~ dq is lhat oobody 11BAIToppua>lly lried10 -.II "clodta numbo(' ...;m .,._
ofor;p..i
:i ...... bu! tt is DOI aszooisliiog if you coooidor tbol BATF . . . _ moy
haw speci6cally prohibited domg tlU cbcdc of thc nconb. After 111. pttJC( ohs! BATF lost a<
~ rocotds. in Ille opRoa of the l>cpanmeot of Justice, roquim Ihle. anotbc< period
hc-ohcd. ln-10thc ..,..,... publicity ohs! would "'9Ult, tudt deniictioa ofduty~
seriously call intoqocstian lhecompctmceofBAIT i o - . .erthls Nalioa's 6-oonuol laws.

&...,.,

In the put, BATF bu - . c l up~ ofdis type. In lhe Butcy-. I invite yo<.- attentions
to Mr. Su$C)''t remarks on October 18. 1995. He said, in put

Let Ole say lhat when we testify in crurt, \W· tesaify that the data b11e b 100 percent accurate.
11w'1 wllll we 1estify lo. and we ..;u alway> 1cstify to !hat. Al you probably weU know, !hat
may not be I 00 pcrceot true . . . ~'re hOping [thlt numerous cron<hoc:IQ using multiple
iden1ifien] e6minalcs thc possibility lha1 anyihing goa out eno....,. bocause we !(now
you·re bulna your warruu on it,. you're basing your aKries on it. and you cenUnly doo't
want 1 fonn 4 wawd in ~face when you go in there to a.bow lhll lhe guy does have a
~T 2 ...._. I'w heard lha1's baweaecL I'm°"' an •..
itle
camt in I~..,, our error rate WU~ 49 and so perceat. IO you CD

when I fint

map whit_

thc JICCURC)' oftbe (NFRT!l) oould be, ifyou're aTOf ,...•,49 to 50 penxm.
BATPs intcmol;,,, ic• ' ol'Mr. 8-y's rmwb do<s noc iotpire coa6do- c-idtt thc tole
st&t...- Special " - Joseph E. D.>gm. wbo ""' _.....,.., 10 the -

or

On-JO. 199S, 1Uumewcd BUSEY undcrooah. Tho acopo ol'dlisu..m.wlimiled in "°""'clat""""" thc di,,.,,,.., I had willl Mr. (Asaociale a.ielCounxl (F'ueums
and E>q>looi-) Jack B.J Patterson. BUSEY related thc tOllowlaa in .. aftldavn, wbidl is
attached hereto:

When be said !hat members of bis stall' testify tlu111hc NFRT!l d11abore is 100%
.....,... ahhoush Ibey know O<bcrwjse. he made a .,...,.._, of thc fa<u. What
he rnca.- to OQn'Y't)' was the facr that the database contains ccnain ioaocuracics which
can be attributed to human error. His personnel lestif/ oNy to the aoooracy and
diliaenoe of tbeit search and make: nO oocnmcu. either In ooun ot on any officiab
documem, ~ lhe -.racy of thc dWbaM. If be - . ul<ed about tbe
IOCUnC)' orthe databae under either direct or aoss examination. be would reply that
dledaubosecootains~ of human cm><. He would thco ~bow•­
b pebnwd.

-"*Mr.

You wi1
Dugan ,..,;.im asl:ing Mr. Busey about "a Fa<m 4 in yo<.-&.ce wben
you fO in lhett IO-dm tbe..-tdo<s liove a~ Tele2 r .. heard lhll's
hopptntd." Wcl. I cbocted die Form 4 data, and fouod Iha a BATF oould i... bad a lqpl
Fonn4 ........,..in"bisoch<rfaoeat leas! 62S -clurin8 199210 1996(-_.6110 72ofmy
1997 lcltimooy). - . 0 -, BATF bu officiaJJy ideo<ified "AppoYed fOrm new:r updmd in
1'1'1'.TR" .. a . . . - . , . - (seepogos lOOto 106ol'my 1997t........,.~ f'11111y, tbeindcued

Exhibit A, Pg. 538

141
5

io ""· Oupo'1 rqian. impios <p>Ood .........., _..., .. ">llid.tvil" Mr.
Bwey. Tbe - - is simply what Mr.~ "'JI tllOI Mr. 8wey would srf, and is lmdly.
cfntt 1cP - - . In my jJdc
•.Mr. DI.- cidn't uk Mr. Bwey aboul Fotm 4 and othrr
NFltTil . . - - he .... specilically direc<ed DOI to.
-

di-

The pnceclilw
tugtllS wby I bad so inle liith m
BATF' t int<mal nM<w process. tbOI
I cons.acted 1he HOUie Comminoe on Govemtnem Reform and Oveni&N to try and preYCOt what
.....iy would ..... beccl jU$1 another cowrup. As you know, tho Commince has requesoed the
Tmaary Oeportmeot lnspoclor Gcncnl to: (I) conduct an irodepcud•nt oudit or BAlFt fireum
rqp""°"" pnerioa; and (2) evaluate the BATF's imemal report. The Lute< hu bm> cornpkted.
and tho ror- is appom1tly stiD ongoing.

I ~ thal tho

0ovemment employs competent criminol io...U,.tort, but will tJ>e;r ~
IDUICl1 in tbe ExcaJtive Branch aDow them to go where the evidence '-11? What for me bqpn as
........ "°""'"'-.a low!UI hcin who ba~ ~ ccnaio raR, oolloctor'Mtan fireanns beias
~ depri..ci o1.- ~has <VOiYed iooo a _ . ~ anoly1is or bow BATF has
adlaitioMnd the NoDoml Finarms Ad and
tbe NFRTR claubue.

olMously-..-with

ow- MltJw, you ...... pclitioo.,""'"" BA»' pcnomd to -

the---.. . ,_

ulted ~. dirocily, and -.pleuly. So fir, BATF has ,._..,.,., witb liypocl>eOcol 0t
• I f I __.. .... simply . . ""' lcplly sullXimt, and do DOI arc "'1 cldimM, empricol
. -.. ~would be RqlJired io .. ~
BATF'orqilyW>
beidacified. Similarty, a ill
-aialited.•

nil..,....,.._

Ot.. .• ol_ ...._
.
... tho-_...,

TodayioF<i>rwry I. 1991. I am . . . you will rec:a.. this...,.,. wilhin I r<w clays. There is roueJ>lY
a :z.._e period ....,,_. oow and when BATF'1 ~ - . , . . will be held. I am
pr<Mdioa Cb.Wmon Kolbe with a copy or this letter ot
time I hovo ir to you. and I
~hope that be considers ut;,,g you to rapood to this ...,.,. fot tho record,

tho ..,..

v <rJ tnJly yourt,

ErieM.....,_
P.0 . Boot'497
Takoma Port. Morytond 20913

ec:

·--Jim

Mt. Ciro!~ Otfic< oltbe i _ . , . ~ Depm- olthe Tr......,.
Tbe

Tbell:

S. I

Kok, au· ,.. oe Trauy, l'ollal Scmcc and o-11 °""amw

ll>leO..~~

Howe C<>almiaee oe ~ Rd'orm and o...;pt
Tbe ,._. ..... Onia G. Hatdl, a.;._,
S-• Conmnee oo tbe hJdicior)o

Exhibit A, Pg. 539

--

142
•>

-

..

'llo.-.T,J.-!2.19111 .US

.___..__....
---·..o
.... ,.,,.,,,.,<,,,,_...___• ..
S.,.....a.rl . . . .did•6t .

""'
-

ors

Exhibit A, Pg. 540

___
-·--- __ ----·-.-.-------- ·-_
---

1'3

__,...

............_
·--~~
.. ~-

-·-...----·----

---~

....... _.,.......

~...o. · -

-G~---..

-·C,,0...·°"""0..-___

tinittd .Starn .Srnatt
COtoWrmt OH M
w""'"'"°" cc•,...,,.
l4ll/lfON/{'t

October 21. 1997

M Sric M Larson
r.
.

P .O. Box 5497
Takocaa Park, M«ryl.nd 20913

Dear M Lar•onr
r.
Th&r'Jc: you tor your letter ceg~ the aur.au ot Alcohol,
Tobeceo and Pirean!IS CB.ATP). I c.are d-.plr about tbAt righte
provided and protected under th4- coa.atitut on of t~ united.
Stat•• and appAci•t• t~• oPPOrt:Wlity to r••poad to your

conc.erna .
I •

a~t• .

av•A Of the alleged violatiOCUI cc..itt.ed by llATP
Trying t.o balance cbe public• a need for e f fective lav

en.forc...nt
pl~

~
ait

t.be rights ot individual citi&e:na i a oftaa
it ca.n be dooe. UD.tortun.ate.ly, t~ U.'IY la
by cont imled allega_tions of abuse &Dd ai..9c:oDchact .

41ff io.a.lt .

In the pa.at, th .Judiciary

C~ttee

bu tborougb.ly

inveatipUd t.h• action• of federU law @nforc::.....nt agtnciee iZl
connection with the trage4ie• at Waco &nd Ruby Ridge . I am
C01Ditted to punuing credible a.llegatiOl\a t.ltf'Oug1\ axhauative a.nd
fair Maring• in the Ju.dieiary Coaaitt.M. You c.an be wre that I

vill do evaryt.hing in my power u Chairman of tM Sen.at·•
Judiciary ConnJ.ttee to impress upon federal l•v enforcement
official• that they must i mpletDent pollelea th.lit prevent abus&
and puniah tho•• who overstep th41ir authority.
M
eanwhile , t he government still h3a th• retponaibility to
perform. th• regulatory functions now executed })y the BATP. 'ftle
que•t.ion that r1111atna. then, is hOV beat t.o pertoria th•••
Cu.nctiocus w
hile preventing future abuaea. I ... currently
review
ing the teasibility ot three specific 1uggeation. for the
future of the &ATP ! firs t , congress could &boliah the BATr and
tranafer 1t1 functiona to the PBI1 second, congr••• cou.J.d
diaaolv. the &ATP while assigning ite entorcenent function• to
the Secret Service a.nd its regulatory function. to ttw U.S.
Oaat~ S.rvice1 .m t .hird, congress cou.ld put the aATP under the
autbority of the Deplirtaaat of .Jv.stic:., allowing t.bat o.p.naent
to r.oriev ite policies and p~ .

Exhibit A, Pg. 541

144
October 21. 1997

Page 2

u·l ti aat.ely, l .v i ll do eve.rythi.ng I can to •intain the

balan.ce betve.n ett•c tive i.v enforcement and protected civil

right• .

Again, thank you tor w
riting to me on thie illl)Ortant ieeue.

Orrin o.

Hatch

Chai I'1Nt.n

Exhibit A, Pg. 542

145

----..-·- ----__....___
.
--......- . .-._.-..__ . ._...--- --c....--..
....a.--- -._. .,·--·. . . .. .."Oo \lf .. ~

..... --~

- . i 1 1 . . . - . , ,.. _

-·--

...- . ... u-. ~-

---~

iinittd .Sratts ,Stnatt
COMMITTtl

AC-• OloolO.--_ __

-

°"' n4

/4IOlfON!l'f

w~oc •""""'

.. ~.. - o . -c-

March 11,

1998

H'.r. Bric M t.or•on
.
P . O. Box 5 497
Tak.oma Park, MD 205t1.l

o.ar

Mr. t.ar90n ;

Tb&.ok you tor yaur lett.e.rs rega.rdi.og t.be &An' lo vbich you
iDC.luoed teetimocy given before UM! &ou..ae ot aepneeot.ativ•• •

Appropriatloca cc...itt.ee. I appreciate tlM inr:o~tioo you
provid.cl becau•e it i• e&&enti&l to the O¥ereltbt role ot che
.J\adici•ry a-it:tee. Your concerns. COllbin4d wlt.h the conee.rna
ot ot-ber• like you. provide insight that would be ditt'ieult tor
•
to obtain in any ot.her way . 1 will certllnlr kffP your
intorution in aind when considering future l eg elAtlon dealing
wlt.h tbe BATP.

once •9•1n. t.ha.ak you tor taking the t i • co write t.o .... oo

thi• i!lpOrt.a.nt lt•ue.

~Y·

~~
Orr in G. Hat th
Cbai.....,

Exhibit A, Pg. 543

146
.Jc:Hit D. L.EASl.Rt:
5897C VICTORY BLVD., 801 3618

YORKTo.t,

TEL;

fllAACH 31,

YIROINIA 236•·3
757-87~-7717

1998

THE HONORABLE JIM KOLBE, CHAJRt'IAN

SUBCQMllllTTEE ON 1REASURY, POSTAL SEAV1C:E ANO GENERAL
GOVERNMENT.

HOIJB£ OF REPRESENTAT IVES
8 30? F!AVBURN HOUSE OFF I CE BLDG.

WASi-11...clfON, O.C. 20~ 1 5- 6028
TEL• 202-225-~8~
DEAR Ct1AJRMAN KOLBE:,

l AM Ef'CLOSJl'fG THE FCLLOWING

~TE'RIAL.

THAT R£FER TO EFFORTS

BY THE IUR£AU OF ALCOHOL, 10.BACCV AND FJREAR"B TO COVEA UP'
ERRORS IN THE NATIONAL FJAEAfUtS AE61STRA110H AHO TRANSFER

R£a>RD, AHO TO 1Lt.£6AU.Y Wlll+IOLD £XCU.PATOAV £YJl>EHCE IN
CRJ MI NRL PROSECUl I DNS.

I WOULD R£SPE:CTFlLLY ASK THAT ttY TESTll'IONV U

MADE PART CF

1.C: WRJnOI RECORD.
I WOULD ALSO ASK THAT YOU tR.PPOR'T CHAIRMAN
DAN 8UATON lN REOUJRING THE TREASUlY DCPMTMENT JMSP£C'TOR
GENERAL TO DO A CREDIBLE INVEST 16AT ION INTO THE 8. A. T. F. AND
THE NATIONAL. FIREARM REGJSTRATJCIN ANO TRN.ISFER R€CORD.
CHAIRMAN MOL.BE,

ANO TO ALSO SUPPORT REMOVING TH£ N.F.R.T.R. FROM 8.A.T.F. A110
lRANSFIE.RAJNG IT PERMANENTLY TO THE DEPAATfCNT OF JUSTJCE.
THANK VOU.

,l'~~_v~._,._c

__

JOHN O. LEASURE

Exhibit A, Pg. 544

147
Testimony

Efforts by t he Bureau of Alcohol; Tobacco and Firearm.a to
cover Up Errors in t he National firearms Re9iatrotion e nd
Trenater R•cord ond to Illegally W
ithhold Exculpatory Evidence
in Criminal Prosecutions

by

John D. lAeSure
5007C Victory Blvd. , Box 360
Yorktown, Virginia 23693
Tel:

757-17 4 ~1717

before the
Subcommittee on Trea sury, Postal ser vice a nd General Government
of the
Coerrrnittee on Appropriations
H
ouae of Representetlves
8307

~)'burn

Hou•e ottiee Buildin9

W.ahin9ton. o.c.

April 3, 1991

Exhibit A, Pg. 545

H8
Test:illony

M ChainMln al'MS M•llbera of the SobcOllPliitt. . :
r.

My neme i• John 0. Leasure. I have prepared this ttatimony because I
h•v• an important atory t o tell about how part ot the le9al ayate• in
thie country i• broken. I say "port o! tht 1t9• l ayate•," because
certainly all of it is not broke~. In addition to havin9 S telony
conviction• rtveraed because the Bureau of Alcohol, Tobeceo and Fireanas
{BATF) withheld •~culpatory evidenc., havi09 the opportunity to
P4raonally brin9 thi• aatter to your attention by •Y•tlf, in ay own
vorda, . . ana a 9re.at dt•l to me . There is •till • clovd over ay name
ri9ht nov, bot it ia ay hope t hat the Federal Couz·t ayat . . will cleai me.
1 prepered this ttst1-ony for t.br . . basic rtaa.ona.

Firat, l w_.,,t to doc:u91ent for 'the congress hov &ATF illeQally withheld
exculp.tory t•idence in the course of cha.rgin; . . wit.b •nd prosecuting .e
tor •o-c.lled •crt..a• ttM.t vere art.ific.lly cr. . ted only by flawed
fiream tet;iatration record.a .
Second, •nd perhaps aott illlportantly, I w•nt to plaQll in th• toraal
record of th!• hearing evidence that the BA.Tr ia continuin9 to try and
cover up its •iadeeda, and is t hus continuing to try to illegally
proaocute scnie people on the basis of firear.m re9i1tration records that
BATF knows 9ood and vell are not reliable.
Third, I hope t hat by bringing t hi$ information to your attention, t he
Subcomraitt•• can help keep what un justly hap~n•d to mt !rom over
happenin9 09ain to somebody else.
All of the law• that I have been accused or v1ol•t1n9 •r• part of the
National tirearaa Act (MFA) of 1934. The NFA re9ulat•• th• .onufacture,
••l•• or d11tribution, and possession of aachine9un1, be&oolas. ant-i-tank
ritlea, land alnea, hand grenades, aaved-off ahot9un1, tiream silencers,
rocteta, and siailar iaipl... nts of var. In addition to law enfo~cesient
reason.a, there are . . ny le9itU;;ate activiti•• iavolYed with these item.a.
M~••ua.t -..v• th. ., peopl• stl.ldy the• for reaearch end development
purpoaea, other people c;oll9(;t them•• hiatoric•l •rti!•cta, and t .hey •r•
re9v.lerly uaed in movies. I vill not try and eOdresa all of these us~s
here, end instead will be9in by e.xplainin9 hQW t got vhere I aa today
tre91 •Y per1pective.

Page 2

Exhibit A, Pg. 546

149
Te1t.U.Ony

I .. an lnvento' of fit•aa. eileneera, which are •OMeti.-es ea-1.led
1•aoppressora,• beceuae they ced\1ce or eliain•te the sound of a firea..r:11
Ming discharged. 1 hold • petent on .y 1ileneer invention, which was
p.tte.nted in 1992, •nd which is con1iffred aaong the best in the indu,1try.
tltalle I ha.we sold ptr,,,.p1 • b.ndtuJ. of t.hese it.ems to oettai.n quali.fied

lftdividuala, virtu.lly a.ll of ay client•l• has been the O.S. Gove.rn.e.nt,
lt• fore.ign-governmitnt •lliea, and law entorc.et1ent a9enc.1.es. In other
worch, llY bvaineisa ia oot with tM ciwili•n •rket. As a federally
llc.nsed . . nu!aCtUrel' Undel' the •FA, l VII le.gally qualified to
Mntlfacture ailence.ra al well •• any other NF'A firum or device.

I also Nke a good product. Tou . . y not have heard of 11e before today,
bet. 1•a suH: you all haive heard of Toa Cl.t~y. the author of Without ~r

•••

Mell, the technic.l info.m.tion in that boot r99ard.ir19 fireat:m1 ailenoers
euie

f

r(lll, -

•

M l~al probletnt with BATF forced me to close my first eompa..ny,
y
Precision A.nu lnternational, which was locat-4 in Saluda, Virqinia.
a convicted felon, 1 c.nnot po11••• any tirear.., nor hold a federal
manufacturer•• licenee. At the lllOlnent, I •• • consultant to SiOpta.

As

HOW MY LEGAL PROBLEMS START&D

ln February 1994, 1 wa1 contacted by BATF tor • conipliance inspect ion.

When Inspector Ch•rlet Turner arrived at •Y pl•oe of business, vo tri•d
to retrieve my records vi• t ho co.puter. l h•d problem.s vith the
computer, ao he left and returned t w dayt ltter wit h a computer printout
o
of m auppoaed inventory provided by th• MFA branch in Ma shington, D.C.
y
W
hen our records didn ' t ._,tch, I nspector Turner aaid he would return in a
Cow days. Thrt• d~Y• liter he returned, alo ng with thr.o other BATf
a9ents, with • •••rch warrant. I offered th• hard copies ot •Y records to
Special Aqent Karen Dutton , but ahe 11id they were not interested in the
hord copi••· They aeize<I epproxinLltely 60 item.a, aayin9 they would be in
touch with .... (Trial Jen. l8, 199G, Pa9• 96, Line 1-25.
Throu9hout I called the Norfolk BATF o ffic. nu11eroua times inquirin9 as
to th• 5t1tus or my inventory 1nd tryin9 to find out exactly w
hat vaa
9oin9 on. 1 w told, •tt is •till pending.• In l•t• 1994 I was toroed
aa
to clo~e up •Y COlllHlny, Prec.11ion Arma International. due to poor
busineas. I w told by a good cu1tom.er thJt vord had 9otten around that
a•
1 v.aa havin9 probl ... v i th U.Tr.
I re-ope.nee! •Y bu1ine1a in Newport Meva, Vir9ini• under the n... of
Silent Optiou. In Novellber 199~ l vas conta ct.ct by S~eia.l Ag•nt Kar•n
Dutton and told the: 9r1nd jury had r•turned • true bill on ay indietm.nt

Exhibit A, Pg. 547

150
Testiaiony

and I had better get a lavyer. When my lavyer, David N. Kontaque of
Hampton, Virginia, called on November 16, 1995 to t he O.S. Fe<l:•ral
Eastern District court, he spoke vith Arend.a Wright-Allen, Atsistant U.S.

Attorney. She told Mr . Montague I had NOT O.en indicted, but my ease v as
still under investigati on. Three days later, and tvo days before
Thanta9iving, I received my indictment, delivered by a O. S. Marshal. The
gra.nd jury had met on November 14, 1995 and returned a true bill.
We obta ined a copy of Special A.cJent Kairen Dutton•s testimony of the grand
jury heoring. Jn her t estimony, she testified I had in my possession
three unregistered function i ng machine guns. These ~machine guns• v ere
Strll)l) replacement p•rts J w licensed to possess. Tb.is tainted the
as
testimony to the grand jury. As a matter of fact, these were replacement
parts of a Un ited States military project. Even t hough durin9 my trial
'
Judge M
acKenzie questioned why I was even char9ed with t hi$. COUnt, it
$t i ll W • n l $$Ue wo hod to $pend time a nd· money fighting and proving my
O$
innocence. FUrthermore, this prevented the n egotiation of reducing my
charge to a Misdemeanor, and point s were added to my sentencing
g u ideli nes f or this count, even t hough I was f o und not 9ui1ty. (Grand
j~ry he~ring, 11- 14 - 9S, P~ge 10, Line 16.)

..i

I n December 1995 David N. Montague, my attorney, asked Arenda
Wri ght- Allen i f there vas any vay this could b4 reduc..C to • •is<ietneonor
and vas told absolutely not . on January 19 and 19, 1996, my tri al was
held in the U. S . District Court, Eastern Division, Newport News,
Virginia, before the H
onorable J ohn A. MacKenzie. During the trial, Gary
Scha i ble, who i s in charge of record certificotion fvr the NFA ~ranch i n
Washington, D. C., t e $ti ficd t heir records w
ere 100 percent accurate, and
that he bad ~ade only one ndst.ake in his 20 years of service. Judge
MacKenzie took the case under advisement . (Page 107, Lin~ 23) .

In February 1996

I

was found guil ty on four o f t he .six counts.

In March 1996, thro ugh a FrecdOm of Information Act Re(tuest by atto%ney
J ames H. Jef fries, 11 1, we obtained a tran•c%ipt of a roll call tralnin~
sessi on conduct ed by Tom Busey, Chief of the NFA branch of the BAT.f'. Hi.
Busey, in thi s October 199S training session, admitted their record$ were
at be$t SO\ accur•te . Kr. Busey • 1$0 st•ted when t estifying in court
cases, agents testi fy the records are 100\ correct . Gary Sehailbe wa$
present at this rraeeting. {8ATF Roll call Tra i ning Session NFA Branch ,
OCt ober 199S, Page 9, Line 3 }
~Let m.e say that when we t ~stify i n court, we testify t hot t h e data base
is lOOt accurate. That 's what we tes tify t o, and we will always testify
to that. As you probably well know, that may not be 100\ true. (BATF
Roll Cal l Train ing Sessio n NFA &ranch, october 1995, Page 19, Line 4),

"Thi s qual i ty

revie ~ team, when I first cam.e in a year ago, our error
ra te was bet ween 49\ and SO\, so you can imagine what t h e accuracy ot the
National Fi rearnas Registration and Transfer Record could be,· it your
error rate is 49\ to soi• (Please refer to the enclosed roll call

Page 4

Exhibit A, Pg. 548

151
Test:~y

Clln H.a.i:ch 29, 1996, IM•id Montaque v rote a letter to Ju<19e MacKenrie

reqv••t1n9 the ea•• be disaiased based on the roll call training ••••ion,
1nd re9ardin9 Count 1, Mr. Hon~9ue wrote,
*Count 1 vould heve been fatally tainted by the multiple act• of
aisconduct by the GoverNftent.• (Letter to Judge MacKen&ie, 3-29- 96).
I n April 1996, my attorney filed the roll call treinin9 trontcript with
the court tor •motions hearing. It vaa m.ailed certified return receipt.
The vory next d1y, Hr. Montague rect1ived this ••me tr1n1cript from Arenda
W
right• Allen, which tho tiled with the court, only her copy lelt out

aevan conaecutive p.tges . It's i nteresting to note tho11 seven pages
oont.ained 1 11 the information about the 8ATF adlaittin9 their r ecords were
at ~•t ~O\ accur•t•.
On May 21, ltt6, in • h•aring before the Honorable John A. "-CKenzie. all
count• but one v4re thrown oot due to Gary Sch•ibl•'• new testilllony
wherein h4 perjured hiase lf, and he stated there vere ex.-iners at the
BATF MFA branch in Nashington, D.C. who shredded re9i1tration and
tr•n•f•r doc..-.nta. F'urthecaore, t.bis w exculp.tory . . terial withheld
as
by the proa.cvt1on. C
Coort he.ar1ng, s-21-tS, Page 42, ~n.e 19 to Pa9•
44. )

The ••nte.nc. 91•en vas 12 months, but 1 was let out on bond pending
a~l . One intereatin9 point, in •Y sentencing 9uidelinea pr~red by
probation otficer Sh1ron Thayer. she included counta oC which I was found
not 9uilty. Thia upped the sentencing range drama.tie1lly. (Court
he9rin9 5-21-9$, Pa9e 70, Line 5., U.S. attorney Arenda Wright Allen
appealed my aentence.
In J une 1996, Stephtn Halbrook became attorney of rtcord •nd noted our
appeal baaed on the ambiguity of the lav.
In Kay 1997, the Court of APP64ls, Fourth Circuit, upheld the conviction
and refuaed to hear oral argum.e- t on the appeal. The Fourth Circuit
n
re111anded •Y aentence O.ct to Jud9e Macx.nz l• to ccmply with th• rules ot
United Stat•• v4r•uo Koon. In August 1997, O.vid H
ont1gue rtturned as
the attorney ot record and noted my appeal to the United St•tes supreme
Court. In October 1997, the Supreme Court refua•d to hear the case.
David Konta9ue ~. two 11110tions to file. One 11 to di.-.J.11 atating 8A.1'F
obtained a ••arch w•rr1nt bis~ on ~he 1ccuz•CY of their record• knoviR9
ful.l we.1l their rtcords were at best SO\ accax•t•. ln •ddition# if thi$
tr•nacrlpt twld been turned over before ~ri•i# vhich it ehould have ~n.
i l would ha ve left Count 1, the co~nt on w
hich I vie convicted. £ven
thol.>gh 1 ••• licen..S by the 8>.!F to ;1:o1nuf1cture allencera, I via atili
con•icled tor possessin9 tbea. However, that count by itaelf could have
~n reduced to a aiadeaeanor under ~he Tax Code, 1n.d •• I st•ted
ta;rlier, we tried ~o 9et this reduced but were told abeolutely not.

Exhibit A, Pg. 549

152

Howeiver, 1

Q•t

atate I feel Count 1 aboold h•ft beoen thrown oot due to

the ad>i9uity of the l•v .

Federal Jte9.i•t•r, Vol. 53, lfo. 62, bl.es and
This it also at.a ted in • roux G1o1.ide to

h9ul•tiona, Section 179.102.

Fe<Mral Firear. . Regulation, 1988-89,• Depart. .nt o f the Treaaury, Bureao
ot Alcohol, Tobecco and f ireanas. Please ••• excerpt• trcwa J an. 18 ' 19,
1996 trial, Page xx, ~ine, Page xx, 1.ine xx, Page xx, Line xx.
A KtSCARRlACJ;

or

JUSTlCE

Why va1 Cary Schailbe able to perjure himself on t he atand vith no
repercuaaiona? lt the normal citi~en vere to perjure himielf, they would
~ tried and moat probably convicted.
In the roll call training s•ss i on
ta~. TOM 8u1ey atatea there are over 800 caaea they are trying t>.se<t on
the accuracy of their records. Hov a.ny other people a r e iti j ail or have
f•lony convJctiona on t hei r records because ot the L\Tf'• lyin9 about t he
aceur1cy of their records?
tlby v •ren•t Jn•pectoz T'llrner and Special Agent
th• ti.rd copi•• or ay records?

~ren

Dutton intereated in

Why v11 ~ren Dutton able to te.s'tify incorrectly to t .he 9.rand jury
thereby obt~inin9 an errorieoua chaz9e 19ainat . ., a nd in e11et1Ce, estra
point• add9d lo •Y sentencin~ 9uiO.linea?
Why waa Brady . . terial withheld?
Why dJd Arend• wrtght•Allen leave out seven conaecutive p119ea frca the
roll call training session transcript, w
hich in th••• aeven pages, it'•
clt•r c;.ry Schaible perjured hi1D.Selt? Tht O.~rt.ment of Justice s tated
t hey 1ent the complete transcript out to all O.S. a ttorneys.
Why w11 I "9iven time" in my s entencing 9uideline1 for c harges I vas
found not 9uilty? How can a person be given 1entencin9
enh1nceinont1/Pointa for count s he va s found not guilty? I f this ia
correct law, why have trials?
Why w
ould th• Court ot Appe.als, Fourth Circuit, not even hear oral
ar9U11111nt on ._y ca•e?
Why d.i d the U.S. attorney, Arend.a 11':- 19ht-lllan, t.ell ay a ttorney, Da•id
Mont.19ue, that J had not t>.en indicted, yet she via the o.s. attorney v bo
pre•ent•d ay
to the ~rand jury two day• prior? She told Kr.
Monta9ue J va• vadar 1nveati~tjoo. The 9rand jory M t on November l t.,
1995 and Hr. Honta9ue .,pote vi th K.s. Wright-Allen cvo day• l ater on
llove91ber lf., 1995.

C.••

How c.an ac-.one vho truly bel.ieve.s t.bey are complying vitb tbe h vs be
aent to jail for 12 month~? (With the distinct po•aibility of reoeiving
Sl montha .)

Exhibit A, Pg. 550

163
Te•tt..ony

,le••e read Olivid Hont•9u•'• l•tt•r, June 4, 1996, to M
ichoel "£. Shah••"•
Dir.ctor, otflce of Pro!eaai~l Reaponslbility, o.s. Just!~
Dep.srtaent, r~•rdin9 the r.-oval of seven ~ges from the roll call
tr•inlng aeaaion t .ranacript; obatruction of 1uatice/taaiperin9 with
e vidence.
J~nior,

l b.d just ~-ope:n.ed ay buain.eaa in June of l99S and things vere goi.ftg
9rut. I felt t h.ed reCO'ftred wt ceputation BAT!"'s raid on •Y prior

busiaes•.

I

had pendin9 order• in eaceaa of SS00.000.

lleVa in t.he

9un/def-.nae induatry travel• feet, and by the becJinning o!

I vas being told by cuata.ar1, • . .•11 get

~ct

to you.•

~r

199S,

Adcllti~1ly, t

fM,ve apent the . . jority of 9Y life in the d•fe.nse
irid-ustry and I v•• now left with no current job skills to find a new
caree.r. K.edl•as to -.y, thia vaa a ae.-re financial strain oc ay
faally.
TBSTlMOHY AND RES&MCH
OF ERIC N. LARSON

In January 1998--1••• than 3 month• a90--J becalll9 awar• that Eric M.
i..rson hed t••titi•d before thia S~bc011111tt•• about error$ in the
National Firearms Re9i1tration and Tran•!•r ~eord, or Nf'RTR. Kr. Larson
be(:a.llle intereat~ in t h••• •rror• troea • conipletely different
perspective, thet of bearing about collector• vho had firearms
confiscated by BATr ev•n though th• fireerms vere le9ally registered to
them. I would lik• to briefly • •Y that th• relatively a._.ll number of
firearfl'LS that Mr. Larson ie concerned about lh• ettimates there are
rouqhly 17,000 of them> ar•, inde•d, in my protessional opinion, fireatJllS
that are only of i ntereet to coll•ctort. They cane under the MFA for
Jnainly technical re11one, and ve in th• buainess often encounter them.
In a ~i9 n ifi¢ant number of C••••• people silrtply don't recogni:e them as
NFA firearma--because they look 11-• what they are, obsolet e firearms
t hat obviously vere manufactured ... ny year• ago. J believe that wha t Hr .
Larson baa au99e•ted 11 re11onable, which ie to either allow people to
voluntarily re-re9i1t•r th••• 9una, or to simply remove the• frOCll the NFA
es collector•o 1teni... t hope you will conaider Ooing this, based on his
research and testimony.
Having aaid that, I a• mainly interested in Kr. Larson ' s work for two
vezy different re••on1. F'ir1t, he independently confioaed what 1
experienced, and w
bait tho•• of ua i .n the NFA business have recognized for
. . ny years. Namiely, that the HF"RTR records are a ...... They •r• not
totally a mesa, of cour1e, but th•Y ire enou9h ot 1 mess to cause unjust
prosecutions, tor • Federal Judge to d••• them unreliable enough to
support convictiona, and for the BATF not to appe1.1 thote d.ismi•t•.ls of
charges. That's pretty unrelieble.
Second, Hr. Larson tollOW.O up hia t•atiaony v lth 1 ~la.int to th•
Treasu%y Depertaent Office of In1peetot General, vhich ulti&ately turned

Exhibit A, Pg. 551

154
Testimony

into written proof of an attempt by the NATF to still try and cover op
error$ in t he NFRTR. Bri•!ly, Inspector General r•!used to investigate
Hr . Larson•s complaint, and instead turned it over to the BATF. The BATF
then did an internal investigation, completely exonerated itsel f , and
then refused to release the report for a long tiSl9. The report wos
completed i n Septen:ber 1997, but Mr. Larson was unable to obtain a copy
until late January 1998 . He kindly shared this report with us.
I v ill not 90 into Mr. Larson•s coc:cplaint here, except to say that one
specitic cocnplaint he made was about the deliberate destruction of
registration documents by BATF employees. As we have seen, this is what
Mr. Schaible testified to at my trial, and it is one of the reasons that
Jud90 HacKeniie di$mis$ed 5 of my convictions . Yet, the &ATF told a
COt!!Plot•ly different story t han the one Mr. Schaible related under oath
in tederal court in response to Hz. Lar$on's coi:ipl•int. Specifically,
the BATF stated in its internal report that the documents vere thought to
have been destroyed some ei9ht years ago by contract employees; however,
~ n my trial, Mr. Schaible did not state this .
I nstead, Mr. Schaible
acknowledge4, under direct examination, that registration forms belonging
to Mr. X..aSure could, in fact, have been destroyed by BATF employee s .
CMay 21, 1996, tr&n$Cript, Page 42, Line 19 through Page 43.)
Also (incredibly, in •Y opinion), the BATF is continuing to try and
withhold the Busey Tape, whic h is clearly Brady Ma t erial. In a letter
dated March 18,_1998, lO$S than 3 weeks ago, the BATf denied a FreedOlll of
Information Aet request by Mr. Larson for a copy of the videotape. 8ATP
gave as the reason, and I quote: ~Your request is denied pursuant to
Title 5, U. S. C. ~52{b) (6) a$ release of this video tape would constitute
an invasion of Hr. Busey's privacy."
Mr. Choir:mon1 not only is aATF's refusal to release this intormation • n
outra9e, what Mr. Busey states on the tape is an out%age: namely, that he
kne-v 900d a nd well how messed up the records were . Listen to what M .
x
Busey states toward the end of the videotape , and I q uote :
n~'hat we're going to do is we're going to 90 back, starting with the
latest entry and w
orkin9 back to the oldest entry and reviev every hatd
copy of every dO¢ument with its entry into the d ata base to see it it's
correct. l think originally we figured this would tate 781 man days to
do t h1$ wit h five people sitting at a computer eight hours a day."

" But it ' s the only w&y that we can feel that we can ever get it
completely accurate. It was f in• to begin putting everythi ng in a¢eurate
o year ago or at least be guaranteed a year ago it w correct, but what
as
are you goinQ to do with the entries that go back to t he •arly •sos and
t he '70s and the '60s?"
PROPOSED REMOVAL OF THE Nf'RTR FROM SATF
AND RELOCATING IT TO THE D&PARTHENT or JUSTICE

Exhibit A, Pg. 552

155
Test.1.moay

1 learn.cl about l weeks •go thlit Mt. Larson v•• pl•nnlnt to recon.nd
that thi• Su.bcollaittee consider removi n9 the MP'RTR frOlll the euatody ot
the BATt, •nd reloc.t• it within the e>ecpartment ot Ju•tice.
t>el1eve t hi• i• a reasonable and necessary •ction, for aever•l reasons.
First, the Departllllnt of Justice is t he or9•niretion that doe• all of t he
background check• a n)""•Y· Second, the Depart111ent ot Justice has the
capability to profeasionally manage these r ecords , os it has done do vith
fi ngeq>rint records tor "'°"ny, many years. The OATF has proven, by its
actions, that it i s i ncapable of managing th•~• records, but more
iq>0r tantly thst it i s continuing to try and cover up errors i n the UPRTR
and t hus continue to try and prosecute innocent people. Third, the BATF
(or i ndeed, whatever governm.ent agency has the re&pontibility for
enforcing federal 9un control laws) would still havo ace••• to these
records, and have t he ability to use t .hem tor le-Qitiraete law enforcewient
I

p urpoisaa.

Fouxth, •nd perh•P• .oat iflportantiy, moving the NP"l\T~ to the Department
of Juatice would provide an objective, l~al intertace between these
r•<::0rds and tb• B>.TF. In oth4r w
ords, the BATF could not . . nlpul•t•
theu r·e cordt or aiause the., beca.u.s.e they would be 1n the cust.ody ot a
disinterested federal agency that has an incentive to .,int•in their
inteqrity.
Hr . Chaiir-..n, I don't tnow the political and pr•ct.1cail deut.11 or how you
do the•• tbinga, but I strongly support Kr. Lar•on'• au99eation that the
NFRTR be ~letely re.oved from the BATF, and turned over to the
Department of Jutt1ce .
EFFECTS OF BATF' S l?ROS EC~ T ON
ON MY PER.SONA.I. LlP'E
l don ' t know t ha t I can adequately express how it teels to be wrongly
accused of, tried and convicted for crimes that I did not conmlit. I can
tell you that it tokes o ver your life frOln then o n. I think obout it
every day, and w
orry about w
hat i~ going to hapPiln to me and to MY
family.
I n May of 1995 J married the love of ny life, and with her I also enjoyed
becomin9 • fa ther to her tive Y•~r old son. As you know, tlx month$
later I vaa aerved vith the ind!et;,...nt. It ia elmo•t impo11ible. and I
have said, to put into words the stress that befell our home li fe, for
the fear of h~vin9 •Y son lose bis nev tath•r vould hlive be•n devastating
t.o hi.a, not to . . ntion ay aorrov as vell . My Yi!• •nd J hlive both gone
t.brougb ct.pre••ion, -ntal an9oisb, and our son•$ a<:hool pertoniance has
suffered.
Hy wife w a court ateno;rapher vho enjoyed 9oln9 to court for che state
aa
felony docket•. Aft.er seeing such a gross "1•ea11i•9• of juatice, she
w rne.ntally no lon9•r able to perfora he.r dut1•s in court hearings . she
aa

P&9e 9

Exhibit A, Pg. 553

f

156
Teatimony

lost oll faith in the justi<:$ system.

we !eared for our safety due to retaliation

by the BATF, echoes of Waco,
Ruby Ridge, and John Law:naster went throu9h our minds const•ntly . Even
todoy, we !••r that writing to you v ill prompt retaliation by t he BATF.

People who I t hought were my friends would no l onger talk to me. A close
1n9 others were •fraid if ~hey were associa ted v ith
me, there vould be retaliation by the BATF towards them. This friend
•lso told blle t hat'& why no one would t estify on my behalf.
P'\Jrthet1110re,
t he night ~fore my tria l, a very close friend who wasn't a fraid to
t es t ify, received an anonymous call stating he better not show up at
t r i al. During this time I received numerous prank calls , • some using foul
language, and constant hang-ups. I never even bothered asking anybody in
the NFA raanufacturer or dealer industry to tes tify on ~y behalf about the
same kinds ot errors in the NFRTR t hey h•ve ex~rienced. The BATF scares
them, because the BATF can put you out ot business . Knowi n9 w
hat it has
done to me, I could ntver criticize •nybody fox putting t heir w
ife,
fa•ily and b usiness interests first. I am proof that nobody will step
!or-ward and help.
friend fin•lly told

These are just a few e~e:mples ot t he hell we vent t h rough and are s till
continuing to experience, for peace ot ~ind and reputation ar• not
acquired Overnight.
In ltgal te~s, our bill with David Montague is $28,300, a nd the clock i s
still ticking. We had pr~viously paid him $1,000. (This i s not i ncluded
in t ho $28,300.) Stephen Halbrook 's bill was $24,500. We still ove
$19,000 . This does not include the countless hours spent worrying abou t
the case; tiiae working on t he case; time i t has taken away from •Y family
and business li fe; and time trying to keep it all togcthtr financially
and emotionally.

CONCLOSIOH
Mr. Chair11t.an, on M
arch 2S, 1991 , my attorney til6d a writ of Habeas
Corpus on ~y single remaining conviction . As I write these words, I
don't know vhat is going to happen, but I feel like ve hove a $OUnd case
that i$ based on valid and reliable evidence . It is possible that by the
time you read these vords, I will be a t o tally free ll'lbn, but I don't w
ant
this to stop here .
I ~me forward with this s t o ry mai nly because I don't want any other
person to ever experience what I vent through, beeaus• of ~•ssed - up
records a nd on effort by the BATf ~o lie about and ~over up exculpato ry
evidence . This is t he part of the legal sys tem t hat is broken, and I
sincerely hope that you and other ~ember s of the Sul>ecmwd.ttee will use
yo~ r authority to support reforms that prevent any of this from ever
happening again .

Page 10

Exhibit A, Pg. 554

157
Teat:1-::>ny

Thank you Cor t he opportunity to have .shared thia i nfo~tion w·ith yog.
t vill be glad to try •nd as•iat you and •nybody els e in the taat of

fixing thi• very aeriou.s probl ...

Sincerely,

John D. LeaSure

'

Page 11

Exhibit A, Pg. 555

158
DAVID N. MONTAGUE
AnO«."«Y AMO~ AT I.AW

Mwm l:t. 1996
The ~le Jolm A .MACXalOc
SCliot U..od Stat,. Diltricl Nclp
E.uwa Dbttb orV'up
WllMr £. Homua U. S. COUl'tho\:se

'°°°""""""*'*

--..--

NOff'olt,

2JSIO

Ra: ' Utiu1c1 Sten x Jgtm Pvid 1 nS·n ermm.t No. 4.:tSc:r$4

0.,......,..1_, __ .....,. _ _ _ u s.-...-

,..,._AA.,

&q. II .,..s dlll Ma. Ah._,_ a copyoldlit .... widl 6.ccmdouu,, IO,.,.,_

n.--a~cw:cw&mtb~.-.,_,l....._lilll~lltwtotn.g

. . . . . ,_. ....... 1-. "'~ sierdlg Mrs. Alm. Cl09J' .,. . . . . ..

two--.. _,

.. . . . . pt.ct. . . cut . .vied Wi:n '°"ii Ncwpon. Ncwa-. . . .
......... CICIMklka ofMr. l..c&SuR a. .. qflbc 6 . . . .....__.. Mn. Aini... ka:a" ol
M9rdl;24, 1'96,....-0..lbt
2 ,mg~•-"'loa'l'OWlllllJ ...........
f"'*"J D $ w•DOtproWicdd,...._....ctWilldlkw:

My..._. . . . . ol'tht: JkatJ Mc is ttm die polftldalfy • c:ulo 1c F) dladoaare lt., be: made to
ch. de:l'mM.WsxJ the trial. b Ooc.'l do Dd tood

""'° ..........

Secoadl)', <111March2S. 1996. we M01 to Mn. A11c:o b)'Ca'd:Sed Mail. Rdur9 Receipt~
trial with various mMcrilb ~~a eopy ottbe ~
oflho-bridiot g;... to lho &..., olAkobol Toi>- ood '"-<BATF) by- NFA
Btudl Oiid'Thomu Buley, io Oaobct, 199'5, W U.ltcam ll.-..ipt llbowt tllilf. ii wu RIOCiwdbyMtl.
Alm • Matdi l6-clie same dlf • ber lutes" to ft.

a ~ to ow motbl lbr -

nn.. iilldudll•~b item. . . . . . . . . . .

tbs_...,.

of>*. Bwey, CICICIPItnqaipt Ollliu the last .a pmgef . . . . _........ . . - . . . . . . . . . . . . . . . - . . . . . . to . .
'• cue. Kcr~a/dletr-.:ript . . _..,..1S,bul,..16.(we

...°""""'* Co•
-

.. -....i... _..,.,., -cm..m-l!<Bn-i .... - . - - ...

~ . . or ... .._ ol• Ms to CYA b

oix: rcuc. ar ma61r. •

Exhibit A, Pg. 556

159

Mii•,. lP '-..,.:: -.....1 tintaime9a,m: .... . , . , . ,.._.......,_..,_.SO

..-·

_,,

Aaodiw .........." .

*

ponioa

«U. nmcript ~by Mrs. Aloltr. _, .....,. •

...... 1111 II)' thlt whee ~ b!!llify • c:owt. .. tatil1 tt.t .....
biM b 100 pwcd ~. T'baf1; wMI; WC Wlliry to, 8ftd - wSll atwtyl
t.OM:ity10 U... Iv. you~ know. U.. ruy llOI bt 100 perc.nt Wt,•

i. Mn. .u.n'1.11a1 aWbil. a llaoltwriaco dlidlW: b)' Mr. eu.y, lie a..:la Iii neceawy
_ , _ . , _ _ _ (..)pcrjuRd_......,. . . _
... •

-

.

'° .-...

~ dw.- .... tky kw aot committ.ed perJMy, k la~ M lllt wouW W it
.....,. ...... lad . . . . . . ..

1'lil aralll _. . . . . miiYdc ao 1M ,_, flla aaiar BATF o5clli •.:::::::~....

. ... . 65 ·---.:n~.·---ot Oo.
eo.a 2.1J _. 6 ffl6e _.__ w 6e ~ ..S cu ·: f olO.,. 5*riMt fllidll:hew•
BAlT dm
. . ...,_~...-.. . . . . . . ~edlO .... t...s... n. ...................... .

..

a

.._._ •._ -.(1....,.,
........

•994)Mfind ~ a •49 car SO~ t1T01

rw

it..._.,

JW-..--.ai-filca,l~*emftcmr..W..._.,_.._...~

{a)~

UWCllllW ._....._ .it;eo ., ~..._., _

-

~-.- ...,......,., _

_..., lllCUf:I~.,. . .

ot•.
_•=--

a..

_, l\o) C-- I ...W

• __.. . . . . . . . ,_ ~•---.:>comider6e om..s..t. Mociolt b New-Trilil _,

..

lbr ........ nlWu die Cclurt migbt ml~

.."'

........

_,.,......__

. .. Jolrll D. 1.-.1UN

47.740 91 ·6

Exhibit A, Pg. 557

160
DAVID N. MONTAOUc
ATf°"""'-Y A#fO ~0-. A'f e.AW
I '"'""' Q,1ot41o1 t W <tt

~:~~tJoo9

'~ • {904)

n.J:.et eo:t

Maf 24, 1996

f.IA1LED A f'AXED (I04) 44 I~
.Vtnda \\1ri11M Allen, Eaquire

Allll11.an1 V 5 Attorney
WOfld Tl'Mlc CcnttJ, Suite 9000
101 Wt t1 M1i11 Slteet
Norl'ol!, VA lJ"O

"°'

ka• U ~
l ca.Sure
Q1mineL Nunmr 4;9S¢4

0- fn'IC'I'.,. I rK'Cliwd •QI ti09! • ~---e ..... wtio ~ . . . ddlme:
.,....
olttFAo..

lkW""_,_.._._ ...26. 1'96. 'Wil. .,.......,,, . . . "'. . _.,.......
Mlrdrl

.,_,~•o.ortin c:ua a ~..., to tllt_,_

_.Ole: to ...... du caM •

A titntl'icallll 4ilf.trmcc, howe-oer• .._ tJw f.ct ..... tr. fec:ftvcd dis ..U tWtcy ..-.....il>C,
Md 110t ~ He f1nt fift«0 ( I S) pega. u I did.
' ClU "ift 1tt#ll thtll I r.ixd ttlM ~ in "" kttct 10 Juctee ..bdtcudc ti(MAfdl ,.,
- ' • .,. iQ 1e1N1b to tt. Court Oii P.-tay :Z I in H~ New-. 0.. IMltt.
did J'Oll
6llti 11~ C''IJlleMlioll. "°'did 'ffNI' wltltCH. Gwy Sc~ o( tlii$ BATF. htW' My ~plml..W. lbr
lllC' f'lii'loti«11 Hven (1) ~«,lo Vfhidl nl09l olthe danuiPil ad111i"'°"' occur,

OCIC'I._

/\1 thb l'l\i1.i, It it °""iw• 1 110meonc fmk)wd tt!C'lllo critic.I"'""" tiorn )'UUr txhibit,
.11.t
\\'IM I \I.I>11'14 ••-•~ t1..1 1h11t pe111<1a wa
lf'
I do Mtd 11111 e 11p4111'1111lo1i. and Ir you e.ri•tOl
,,.,,,;,k 1 I thllll pla.n
1,
flcitt ~to the OifcctorortJic
orPtoftteiQul

to""""'

'lnpotilibilillv .- 1ht Jultict Oq.rt..,.._

mu-

omo.

l'\eur 11\iM: mt U to wba& )fOll bow aboue. &be Si6Jwins::
( I> \\' t i ~VIII kttttto • oftda!Q '24-'quetet the l.n.Sl.ve C--. CW ...., It pill ofe
•ietionwlidit 111nt1flatbl tet ...,_ ..-,en iiwohood ilt..., c:ua1

( 2) \\'uthe ~Qfdlllllea«J'CIUit~Cll".,....lt,......"7..,._,dlc7

Exhibit A, Pg. 558

161
(J) Fl"Ollt wbceet . . )'ml tec:ier.. die~ wllidli 41«XA r ' d dlilit ~
(C) lfdM*"""""'IO . . . . . . . .Q)il: n.~~Al'°"...dcul . .
~a.a:IJ- ~- ... J'CIU-~J'Olilbowol~ .., ......

'°....,

t ,.... ...... .................... J . . . hope 10 ~ bm ,_.,, 'Tliundty,

"'"''°·
c:c: Mr. Joh11 U•Sur~

""'

Exhibit A, Pg. 559

162
U.S.~«1-

-~,.,..c,.,..,~,...

....,.,,"",

~Mt..J:UIHCW

H.ar 29, 1996

David H. Hontague, E¥q.

l East Queena Wa7, Second Floor
Bam:pcon, Virz1.ttia 23669
Onfted

f'tt•J

y. Jpbn p1gt1l Leasure

Crimin• No. 4:95cr$4

~ar

Hr. Hont•gue:

P l e.ase be adYtaed c bat the entire packet wldcb I ..ued co you
on Harcb 26, 1996, vas xerox~ i n total from tbe original packet
senc co •1 offic.e from the U.S. DepartDent of Juaoc-iee, Crbdna.l

D.tvJ.sion.

Sincerel7,
BELEN F. FABri
UNITED STA.TES ATTORNEY

Aread.• t.
As$,i.st1nt

Exhibit A, Pg. 560

163
DAVID N. MONTAGUE
Anoai«Y AHO COWCSUO«. AT LAW

TUI....,... ...., JU·7•
,~

,..,., 12.Z•l

Mldwol B. SNl>-. lr., .,.......
Olrtiet.or. omo. of Proftasiol'lll ~
U.S. Julllb Oc1>11rtmm
Rootn4304

Maio Jlntloe Dui1dl..
1Otb Stttel 1nd PtMJ)'lvanl1 AYUUt, N. W.

w.,w.._°' D.C. 20530

--

Deu Mt St.hNR!
I wrilc ~ brins to yout attentioe 1 mnu wtKh lw bceft

of.,..._.. k l • ill

--

l '9Ye \cic9 """°"""" as ddbsie =--I i9 a cur-~_.,. 26 U9C !..aloft
jl61(d)a(Q ill b Edem Dilcria o(VwpD. trykd II S A y Jqlm '>gjrf I•$=~

Bricofty, 1hecmc;il¥oMd •po ..;,.. olMt. t.Sw' 1 r.der1llp .._,ON.
2 Manu6im.et ~zi• M R::llC:Wdl llld de I r
ol fitewm "WfeNOr1. or ......,~,
.... the hok1er o{I prl enl IOr ...... it probltlly the bat tilmtft lin. the WOl'ld, Tht ~
clwpd In 1 6-Cou111 ln1Sct1nttll C111M before die H~ Jolm A MacKenr.it for a~
bench tl1al on J11n1.t11'J' 11lfld19, 1996, for a variety of'reot)ld-t. . . YlobtloN., t.t no
tubltlrltivc Yidltlo...

lnhially. by Order entered February I, 1996, I~ M.cKentie bind l..caStlfC
guilty or 4 of1l1e 6 covrit• or1 indic:tmmt, al ofwtdch lnvolvc!d tho record-lteepin& illllCtiom ot
1tc
the: NFA IJr11r1dt orthc 'BufCIU of Akoho4. Tobecco aAd Firt:ltmt (BA1'f) CXOC!fM Counl 1, which
...,., i'of poMCtling unsuccessful ~ sikl1Cat ,..;lhl:M ttri&I ~.
Al die aent~iins hetriftf on Ml.y 21, 1996, the JUd~ WU g4"Clll ICICCN to
addlll• hwroma'lion wl*;b t.6 become rt'llilllble .Ber tbc tti.a, combcln1 pfi111el.,.ily of a
~ ot1 ..-.inint pr-~ fwedetothe 8ATF in Qaobcr-, 199S, by no-t &.cy, thnl

CMof.N-f".....,.M.Bnadt.BATF.

Exhibit A, Pg. 561

164

.....
This~ WU busbcd up bf BATF after ill WU Ollldc because ab'emllly

damaM admissiOfll about• •49.so percent" enor-nte ia the NFRTR (Nat>orWFwarm
Rcgntration and Transfer Record). Mr. Busey stated thlt grat stride Md bOCll . . . . liDce; be
bad bffa on thi:job(&omOctober, 1994).

This. or~ eu1 great doubt oa .u cues amedltitlg Buse)"s tcaurc:, illcl..sicw
this ooe, w~ bad arise!l in Fd>ruatyof 1994.
Withm a month. BtiMy had besl ~to the tobacco KICOon ofBAlF. llld
his tr"anKript mnained tee:rct unti it was produced pul'Slatll to a FOIA request ftllldc by Ima; H.
J~lU. EIQW"e. o£Groemboro. Northc.otina, 00~1. 1995.

Actual procb:6ocl was rnedc to Mr. Jdffies on or aboo.rt M&rdl I, 1996, mbout. 1
t/2 months after Mr. LtaSt.ires cue hid becfl tried, and he se111 • Q)P)' of~ ~ tl"lalcrifll.

l usie:mbled tewnl edil>ils, iocluditlg the 8u9C)' bVl9Cripc aod tad: IO tt.: Court
with a copy to A.uistant U.S. DistrK:t Attorney, Attnda Wright Alk:n,. Esquire, the lllOl'De)' in
charge of the Government's cue.
·
On the: same day that tht ketvm Recftpc indicates Mn. AJlen got In)'
ootrespondmce (Mve:h 26. 1996). a kiter wu SIC!IC IO me by Mrs. AJleD with the snte Btner
t~. except lhil 1hc llsi 7 pttC9 had bccll removed. thetc being where Wtl.&aly .U ortbe
d&mlging material tppeltcd.
I M.ve asked Mn. AJlttl to tqllain this. tnd I finally hwd from her oa Mly" 29,
1996, stat~ that she had &eOl DW ~she Md gotten from the htstioe Dc:pattmltc.

As a rcsuh or the 10rqoq disdosures. togttbe:r wi1h tbe testimony of'Gery
Schlible of the 8Alf that the~ was~ a problem with NFRTR clctb dcttroying
regi$trlrion faxes. Judgt ~tac:Kemie tlnw out all of the comktious except COUlll 1, and oa it i.
wbslantiafly redu«d the Guiddifte indic:med pmally. This conviction b bang appealed.
At this polne, I am ledd.. H fi.111an cxpianltioo .., possible of.tiaa appeat1 IO bt
misconduct at r.&irty higb k:vds iflvoMng obYious viobtiocis ot the lkldx: •
ccwerups by the poliQe (BATF), tod t~ with mdftlCe by the Deputmenl ofJUllicc.
govttnmient

The 1itu1tion wu brougbl more f'ora:Nlly to my attention when I receiwd • pho
call &om ~tr. Jeffiies on Friday, May 2•, 1996, advi1i111 thu ht badjmr recdwd a leua'&oim ti
AJsistmt U.S. District Anomiey on a cue he hid ~a oumber of 1tt.cfimcnts, ~ ti.t
bad received 1 geflr:f'llly .similar k:tter &om MA. Alm, he wanted to compare them.

Exhibit A, Pg. 562

165
_
-

...........
.. ....

---totic ............

___ ___

M:il-•
. . . . . _ . . _.,,,,._(-bolA\/SDAo)to..--otNfA
(-$161) _ _ _ _ _ . , . . . . . , . _

...,

......

.......,.._.,..

~dlll~W,..,....lkP-.s9'0al_,_...ot . . ~

, , _ .. .,.bowitl_,,_,....;u...,,bt>erlobo-o-11oio. I
. . . . . . . . )'Ollf'~

Exhibit A, Pg. 563

166
u... .,.,.
Otf'ice of ... f

2

-

"' -

RapomilWly

........ o.c.••

OCT

3 l900

David N. Montague. B.eq.
1 S..•t Ou•en•• M•Y

Second Floor
Hampton. VA 2)'''

Dear Mr. Montaguet
Thenk you for your letter •nd the . .terial you •ent to u• on
June '·
Me h•ve ~ned an inve•·tigation into the •atter.

1'''·

lf you have any quest ion• about thi•, pl•. . . contact . . or
A•• l etant Counsel O.orge Ellard cm. (202) 514 - ll•S.
Sincerely, .

HicbAlel B. Shaheen Jr .
Counael

Exhibit A, Pg. 564

167
U. S. DD44_,._. ol , _

...........c. . . .

D•vid N. Montavue,
&e•t Queen•• way

E~.

l

S•cond Ploor
Hampton, VA

2l•Ct

Dear Mr, Mont.ague 1

/

In • letter 4-ted Ju.ne t , 19t6, you brought t.o OUT attentiOll
th• fac;t that M•i•t.nt o.s. Attorney Arend& IJ.le.n had ••nt you a.n
1nc:~lete tranac:ripc. of c.rt•in remark.e -.de by an a.gent vitb the
.Bur. .u of Alcohol, T~cco. and f'ire&rM.
"9 . Allen bl• affir.cd to us that which • " told you 1 abe
forwarded to you i n it.a •ntirety the aaterlal M.Dt to her by t.be
Criain&l Diviaion • t Main \1\l.lltio..
We have told t .hat COlllP)ne nt
that - - . of c.he . . cer-ial it se-nt to u. s . Attorney• Off le.a appear·e

to have bean inc:0111Plete.
"?bank you tor bringing tbia

matt~r

to our

at~nt.ion.

Sincerely,

A~fJ2Z. ..{

George a 1U.rd
Aaaiatant Cou~••l

Exhibit A, Pg. 565

168
OAVlO N. MONTAGUE
An~Y

---·-

ANO COUHSLLOll AT LAW
TU~ rt04) 711~744t

• lAfl~&Wlti/I

H...-.oN.

y_.,..

·~ CICMJ 7U-.199

11669

N<MDlt27, 1996

0 -.. El.vd, E5q1.1irc
Attilllitlt C'.owild

U.S. Jut1\oe: l>eptt'ln~nt
R<Klftl4)04
Mo.in Julllc.s Bu~
10th $4r..i 111d hnnsylYlni1 Aveouie, N.W.
WMllli"l'Clfl, 0 .C. 20S30

Orear Mt FJlvct
I -...- ,.ow kllf'f ofN~ 21, 1996, b,.,.,. You cimMly 'WU' to~ ""-d
J ' llCC.

IMOM of die polllill o/ ""'f -'et CCU

lit tlilit flnt ..-.. n.or-. 8u:teJ ~_,.be,.,.. 10 M • ....... ol&ATf .. fKt.
llit • • die Oirfofdlit N.arionll f'..-- Ad Ek--* tbr thM. *tf*Y, ... W. ·~ ~
c:mM

aoma....,u--.~a•BAIF~.-..

".,..Mr

••cd

jolflol-....,.. .mot'

BWKT
WM . . ~ tnldi· ht...._ hi
rtte ftw" nw.r~"" &-..... ~-- SO'Mt.•Mifll ..... ~ill ,...,.......,
C&lel Wh " 'OHl*M and diet flCCht.ps hwOeda of IJUil dukf• Md ~rcn (...... .,.
diC'lllt, ~, wttc in prilon witt1felony0Clfl\ic:doat th91 lho.M Mvc '*'t ~·

To IT'lalfe lllWl«J. -otH, l'ofr. Buley' wat aumnwifr &.red Ind lht VaMOfirt otW1 fftlU'tl
h1HheJ llP Ovft)"1 c1reer flOW l1nll\)iflhcs m lbc Tct.oco Dl1"1siol\, Hit it"*k• did flOf become
ltno'"" tti lhe world 1111(\1 obtaiocd on an FOL\ reque• &ool p 111omq, }IM!ttt H. kfftin, tu,
o(('rretml~o. N C. "''ho in tt1m. hN burd by the srapevlnt 1hM.11Kh 11r1utcripl exilted.

""it(

Mr Jtffne! 8"' tbe ttflltsOOpt, BATF m!Utd ""jl.g .... Ufl '"" itnmcdiMdy tent it
I•' the JU"llcc Ocpti'lmtnt. who ir1 tum ttansmitt.i. ii to A.Mi.teu11 U.S. AUOfM)'S h111dllt19 CIMt. at
'""'type
•
M\• quntion wu. Nd BATf ddtttd the crui:ill Id ttYCn ( 7) P•tr.t of the mntc:ript Ind
etwtby .a..... Ill of Ua daimging admitsiom? ~
Mvc flOt t¥tft looked iMo dis.

'°"'

Exhibit A, Pg. 566

169

YOW ~--otillit . . . . . . . . . . . ..

.. a...,,,..

t

0

I

. . .

otjuillicl •

ca

_

.. .

W

. . . 90

. . ,.,,_,.

y...,_,1n11y,

~/J~~~
DMIN.M-

cc:

~r. Jolwi

o. LuS.t

"""

Exhibit A, Pg. 567

170

•

OE.P'A.RTNE.HT OP' THC TRllltASURY
autt.EAU OF Al.COttOI.. TO•AGCO ANO "1•CAlltM8
WAJ.KIHGTOH• OC :aoa.ae

Mard>ll,1 991

REFER TO: L:D:l,IRL
9'-Sl4
Mr. Erie M. Lotton
P.O. Box 5497

Tlkoma Parlt, MD 20913

Dw Mr. Lotton:
This is u. . _ 10 , _ Frocdom oflDfilrmolioo /'.J;1. _ _ _ , ), 1991, h
ioformoDoo -'·"'inod bytheB,....of Alcollol, T-..ond r -

y.., ..... _ . . . "a-1<1t ond unrodaclcd _,o(the .-..,....-bytheS..-ol
Alcollol, T - . . ond F " . - which pica.a Mr. Thomas Duxy,Qie( Ndml , ,,_,.,...
8..a, dlllq 1 "'RA>ll Cell TlliDillg s..,;,,,., or lbooJI OclObcr 11, 19"". Y- is
ctemcd .,...._ 10 Tnle S, U.S.C- ss2 <bX6) •-ollhis video ... invukwa o( Mr. Buky'1 privacy.

--

i-r ....,,..... .............. boon denied. )'OU 11o~ the right 10 ......... ., _ _ _ . ,
..
Such_.. must be llddreooed 10 the ~1 Di=tar, Liai'°" ...S Pl1blie t . . - , •the
...... lddm1 end be =i-.ec! within )S dlys of the <Ille eppeerinc oa Ibis · Yo.. ..._
lhould t111e 1111 eraummu ill suppoct of,_ RqUeR.

Exhibit A, Pg. 568

171
QUESTl0"5 AJ<D

Alf~~BlS CONCCR~l~G

TIIC

RCCULATIO~

OF ~AClll JIECUHS A.HD SJ L[JICERS u.:ora Tiit
f\ATI OKAL Fl R£A.a:.&."i ACT AkD TliE CUl'C CON'Ta.01.. ACT.

AS Al!ENDED BT PUB. L.

~0.

99·301

SILENCERS
QUESTJON:

'What controls are placed on silencer k•ts,

partial sllenc:er kits ·and an individual tllencer part by

Pub. L. Ko. 99-3081

ANSttER: The Gun Control Act and the H1tlon1l Plrearms Act
reaui1te flrearQS, lncludina silencers. as defined by
those Acts. The ter• silencer ls defined ln 18 U.S.c.
I 921(0)(24) and 26 U.S.C. I Sl•S!o)(7) to •••n ony de•lce
for tll enclna . •ufflin•• or di•ini$hin1 the report of a
p ort1ble (ire1r•, includini any CO•binatlon Of parts,
dc1t1n.ed..or redeslaned, :!_nd...ln..t.ended for U1e"'-n assc•blfng
or fabrtc.a tlna a flrearw_st1encer or •ufflei·t and any part
lntende~only for · USt rin....:-.sucb•e•se.~o..:,.·{abrlcatlon.
Thu•.
s l lence.r--.k l t,;'11.be.uie_a:~ t l•l or "co•plete, and
·•nr lndl •Huo~LhnU~Pi:~•••hcJ.e..,t~tgll,t.l"l.-.controls

"'a :

placed" on"f"frea·f'li~bi-:Itbe GCA.!1nd ..the•tfFA. JfFA' contr,o ls
include. ~· the~reg-istratroa·and .. rt ln• requ1re•ents.
A ••nufacturer and distributor of silencer ltl\s ••Y place
the 1erl1l..... nu•ber and other- requtred.-aart.inas · on a sln1le
co•ponent of the kt , ., .... proW'ided that the mrltlnas are
consptcuoUs and not susceptible of betna readily

-~J.l.LC.r.L~d...!•S requi red by re1ulattons.

IA

tUnufacturer

1 single part vhich aeets t\e silencer
inust place all requisite m.arklnits on that
part. Under the GCA. a •anufacturcr or dealer in
silencers 11 defined nust ~ be licensed.

dl1tr !buttn

Can the owner ·of a r egistered silencer have
the s•lencer repaired i.i ithout the transaction incurrlus
further reatstration or pay•ent of · 8dditional transfer
taxes?

QUESTJON:

ANS\·,'ER: The resfstcred Cllner aay deliver his realstered
iTTii'Cer to • qualified manufacturer for purposes o!
r epair, tncludins necessary rep1ace•ent of co•poncnt
parts, and receive the repaired si)cncer vlthout the
tran11ctlons necessitating further reaistration or payaent
of transfer taxes. For the protection of the parties
ln•ol•ed, foras S should be filed by the transferors vith
ATF prior to the dcllY-ery and return.
On .the other hand
the transfer of silencer kits or parts by a qualified
'

Exhibit A, Pg. 569

172

e:·,. . , ....

/V.&.:l(:&.R /.;~.'~ b. - "I W.aurr.......

~·-.

Exhibit A, Pg. 570

173
i

. ORIGINAL
•

ROLL CA.LL TIIAININQ
10 ~ 9S

'

.

TOH BUSEY

'

Exhibit A, Pg. 571

,
17'
:
P R 0 C E E D 1 N 0 S

l

l

)

4

Goo d aorning, •Y naae le

HR. 8US£Y :

2

' fa

chief

ot

t.he NFll. bral\ch, Ha~ional

Fircan.e Act Branch.

S

A lot of t.he i nforaacion th.at Larry gav•

'

you relat.ive co c hain of o ornaa.nd or9a.niz.ation , t.hac

,

a p pl ie•

I

fllorning i• ch• p r obably thre• major t.hinge ch.at

t

branch d o •e .

10

c o ue t.oo.

Our (iret.
• cc ura.~e

What

~nd

t

1 •d 9ec int.o tbi•

chought

c.he

M
ain rc•poneibility ie to

11

make

ll

.. FRTR , t.h• tfa t. ional Fire ar•• Reg i ecry and Tra nefer

ll

Rec;ord .

1(

cn t. riee and t.o iaa.int ain accuracy of the

Our eeconO

15

look u pt f or a.9encs

l'

if an a.ndiviclua l

17

1111 ~1:~

in t.h •

r e epone lbi lity le co Co
field who need co Ciud ouc

hae Tit l e 2 "Weapo n .

Our thirO ma jor r capon• i b i lity, and not

18

quite co -equal,

l!

cr iticaln• • •

lO

record 1 uven tor J. • •

21

var iouo f ir • a r • ei d ea ler• .
t hat

"" G

n<ivc

bccauee the oe1iu lc ivlcy and

of it ie uoc. t.h e r• .

buc. we &leo do

for 1 ne pec;toru 1o1ho are in•pect ing

We ue n cj

it

We v uL· ll y t.he i nventory
to the.., ,

t hey d ouble c;h c c~

( r'
Exhibit A, Pg. 572

175

l

le.

and

"'*

'
t.ry to get it. uc.rai9hc.

2

1 t.bougbc. 1•d •cart. off by ehoviu9 you •o.e

l

figure• becauee, like i•port• branch, we al.o proceaa

4

1n1.ltitiduca of paper.

s

La;ry'•• although you oan double the cxa•incra.

'

have

7

baaieally bacauae of th• volu••·

~2

a
9

Hy ataffing ia very aiallar to
I

ex.aainara, laport.a baa ' · and that••

The fir at. chart you ooa up t.here ia c.he
••ount ot Tit.la 2 vaapona t.hat. are ra9iac.erad ri9hc.

10

nov .

Thcrc•a appro•i•a t.ely 721 ,000 Tit.le 2 vaapona .

11

T'hla fir•t. sraph ehowa it by atatc .

1.2

t.he largeat acato for Tit.le 2 woapono la California,

1'• you can 5cc.

and c.han you -ove ri9ht. ou dovn t.o,

lS

VOICE:

H

MR . OUSEY:

11

Yi~i.n lal.anda.

believe that.••

Virgin lalanda.

Virgin lulando .

[ • 111

aor ry.

lS.

Of that. 728,000. we ooti••t•. becau••

11

~e

1'

cion•t. have ch• c.iae. nor che lucllnat.ion co do it. on •

20

Monthly

21

flaeh gr•nadee .

22

lnvcntol"y no

b~ eio,

a1,ywhero

bet.~QOI\

They cc..e in

qu1ci-. l y,

150 co lSS,000 io the

~nJ ,~u\.

of ch•

.l nd !"@11;1hly 'he ;acC'u1·aC"y

~':

(.~
....

Exhibit A, Pg. 573

l

176

..
l

thoee io not very good, b:.• ic:i lly becauee vhen p ol ic•

2

depart•ent.o and o r.her lav enforcement a9•nciee u ee

3

thee e flaeh gronadeo,

•

•••

s

•u~h a c ontinual turnover .

'

Department may report to ue accurately, bu t

1

Sheriff • e Dep;irtine nt. up in Ucha, v .a "'"'Y not hear froia

8

them .

they•re ouppooe'd ·co repor t

We re•ove them fro• the inven tory .

9

co

But it••

The Kanoae City Police
the

Some day when ve: have t.he manpo"'er aJ\d ve

10

have Che time , ve n eed t o 90 through ;nd 1;epa.r-.tc

11

theoe ou t.

12

In fac t ,

ve • vc diecuoeed "'ithin the branch

13

•• tt in~ up poo eibl )· t"WO clitfer • nt regi ecriee ,

l<

t he eyer.em Ooee::' t

15

theoe out. ir:co an equal c::icegory bu t

16

category .

juet eo

become overburdened· to e~p ar at•
a eeparate

The oec-;ond gr:i:ph ohowo the: ~tr.ount of

17

lA

proceeein9 t.hat ~e do on ~ fieca~ Y•ar bae ie for both

19

' S4 and

20

betve•n t.he F'orm lo,

21

form l Oa that ~a proecoe .

' 'S .

''$·

th•r• v~e a alight decreaee

Form. 2o, iill the VilY up to t ho

we

proeeuA~d

21C,GOO

(~ '

Exhibit A, Pg. 574

177

•
r•9lec.ratlo.; Ot ••nufaccured v•apono and tra neferred
2

veapon• .

)

Th• eecond graph breako chi• down into th•

•

typo of v oapon that vc: have in the regie try for both

5

•ti

and '95 .

6

D•otructive dov icoo ,
i o th• largeec .

t h~

ne cond category,

Machine g une. oilenc•r• ,

I

weapon, •horc.-barrcl

!

any oc.her

ohort ·bar rel rlflee .

10
11

ohotguno, eaved-off ehotg-uno and

hope that page: ion•t (or a critical
lookup .

12

The nexc qraph ie che record oearch•• chac

1)

vere co-9leted in l''S.

!~

record aaarchee by ou::- •?eeial j ec o.

1$

at"e aix, vae 5,368.

16

record ooarcheo £or epc:cial agcnto ln t he field vho

11

needed either urgent inform&t1on or rout ine, and I'll

11

ge e

:;,t

ln~o

Aa ycv can ••• · our total

Of chac ,

of

"'·~ich

there

"1& .S percent vere

th•t .

N• did eao courc: :erc:~llc:atlon • (or trial•

JO

tha~ ca•• after ~he uork ca•••.

21

lnv•ntorl•o for our inopect;.oro in l.h11 Cleld a nd

and "• did SI'

Exhibit A, Pg. 575

I

178

1

Th•

n•xc graph .

'

probably vouldn•c.

le

2

int•reec you coo much,

3

occupational tax a.nd the popu l a t ion of epecial

OCC\lp&tional t axpayer•. tho nu.abcr of aanufacturer P '
;

s

i•p~rtcre ,

•

becauae we aloo •r•, obviouely, conc•rned a bo/ t t.hie

and Clae a 111 dealer • that are O\.lt

t~~

1

•
•

•""•Y l
like

J

I

eay, probably either fi ret or eecond, becauea

10

the.y're both probably co · cqu-. .

ie the aearch that O\lr

11

• pec:a.;;.li•t& do,

l.2

HrRTR for epeoial agent

13

when thE-y•:• trying to find ouc i ! an individ\lal \o'ho

i<.

they t:ad !r.!or•ation on hae

1$

h•v• th~t T !t.le 2 weapon rog:a.et et•ed in our data b•••.

our look·u9 apecial:a.ata do. of the
ti

...,hen chey • r• working a c aa•,

&

Tit.la 2 veapon, do \."•

16

Thc•e procedure• are in cf foct right

17

There's eoee: change• in here ch.at you proba bly

18

alr•ady hav• h•ard a bout. relacive to Ch• inv olv •••nt

l~

of 10ianagement and overee•in9 the 1
·eoulc e tha.t

20

•P•ciatiete co•• up vit:h vh•n t hey do a record

:1

•••rch .

now .

I

1' hc record ••carch C.ln lu: 11ulde eithc :- bv ;<

2'2

( :i I

rr···
Exhibit A, Pg. 576

179

· 1

ca.11 in by epecial agent.• vic.h a dodicac.od nuaber.

2

Me jua t. roconc.ly have conac.ruc:c.ed ln our vork area a

l

aoparat• four-valled ottice c.h&t. haD c.he c vo look-up

4

apcciali•t • in it .

6

activity of the branch and the diviuion, and their

G

only raaponaibilitiea a r e c.o c.ake c.t1ooe phone c'll•

7

fro• apocial agence vho are doing alt.her weapon•

•

eoarchoa or individual a earchee .

They're ioolatcd fre>ta the other

They can either do c.ha t by the col ephone

t

10

nuabcr by telephone or by f;.x ••C'hi.nc, which wc •vc

11

re.ccntly had inatall cd a acparatc f•x aachinc,

12

aoparata froa the reet of c.he diviaion,

ll

by ic.•ol!.

14

aaarch can be raquaet•d by naJne,

15

o•rial l\Umber, or both .

That e ak•• nothing but

in chat rooa

lOOIC. upa.

The

by c.ha tirearJ110

The epccia li e t that ' o •ittin9 i n there that
17

take.• the- rc:queot entcro the i n£or111:1.e.ion on the N~A.

1&

r•cord eaarch fo rm,

1'

that we . put. on t.here relac.ive to the

lO

a9e nc., c.he badge nuaber, t.be a.ddr•oo/c.elaphone

21

nu•ber . and of couro• all oC Lhe ln(o ..•aLiOn cha t vc

22

c a n po••1bly 9ct fro,. 1..hc

a.nd therf!'e a lot of infor•a.tion

ua••

of the

~g~nt.

Exhibit A, Pg. 577

180

•

l

:z

The mor• i ntor.. ac.ion t:hac we receive:,
re lat.iv• to the individual tha t. t.h•Y • re doiu9 the

l

il ""• have a birch d • t•,

4

current addrcae, anything.

S

tiaC• v c doo•t.

'

name.

And of couree, a lot of

All we get i •

juat a Cir•t and laat

Kiddle iuitialo e ven help uo .

Becau•• •• ~e 90 through t he ••arch. the
8

fur ther we h ave to go to ••ke ~ure it• • ri9ht, all

9

the vay back co th& acc.u~l •icrofllm record• and the

10

actua l h a rd copy of the tranef-:r re91et ration

11

docu~ent, eve n midd l e in itiale ean l1clp ue eli•in&tc

12

erro_neo1.1a i ndividual• .

ll

For a

11aMe

~ea rch.

che upeci a liet vlll

lS

of the laac. na.aa .

16

S•M· I .

17

get. let'• ea.y.

18

ru,n ehe •c at.c and the S·H · l.

i 9

400.

20

•or~ u.nco•mon namee, you "'ay o nl y got l or lS or 20

21

nanr.ll&.

The example giveu h&ra i• Smi c. h,

What happcno iG,

they ryn t.hc S · M-1 .

10.000 hit.• on S · H · I :

Then they• J!

T he y'll

Then ehcy "ll

and Wlaybe they'll g e t

run t-hc.: !.u11 1I. letter ,

lo <:'-'Cll

( /, \

.

l 'I" • .. • •

Exhibit A, Pg. 578

181

•
1

b·r eak it. down further .

l

T.

'

Let n:r.e

••y

lt. 'o $-H·l.

and t.hen i t ' l l be

t ha t "'hen we t• •tity i~l, c ourt,

•

we t ce t. i fy that the data b aec io 100 percent

5

accN.rat.c.

C

alvaye t.ee t.ify co that,

7

t.hac. aay nOc. be 100 percent. t rue.

I

vae abeolutely e rror froo, ..,e cou ld ~ imply run tho

9

name

That'• v bat. vo te•tify to~ and wo wi ll
A• you. proba.bly v•ll. lcnov,

If our d a ta b •••

o t t.he ind i v idual and hie firo c. n a111e, a nd if !c

10

dfdn: t come up. vc could suarantcc e veryone that th~t

11

indlviOu- l doean •t have a Title 2 we•pon regi e tcrc4

12

to hia.

11

l<

thi6 2•• 1:c p eop le lnverc l•t ~e:-o and vo~·elo,

1$

put. t.h e oame

in ,

you cou ld

it \.IOU ' t come u p c hat: ,.,;i.y .

So we run multiple aiethodi:i o( running it .
11

I f the l~ ot name and Ci.rot na•c .

11

na•e O't" t.he l ady '• t:lrec naae, look a

lt

n aae, ue'll run thac. Cirec..

20

eee ,,,.hat. ve com• up ,,,.ich.

21
12

if the 9uy'• tir•t.

like a la•t

Wf:' ll invert

it,

juec co

So chi• w•y, ve c ry co .:l Lmi n ato the
p0Go1bility o f . h .. vc 001
"cbo<iy in t; hcrc \.:ho h ao

<J

'l'it l e

{it.
Exhibit A, Pg. 579

182
10

2

not.

W• ;ia.re 9oin9 co a nev data b••• vhoea

l

c apabilitie• vi ll allov ue co do •ore

t

qucric• •nd hopefully bctc.cr qucrioe, phonetic•,

S

So.ind, Soundi:x Cpb).

'

varia~. k ind

of

Soundox -will help ue.

For a ••rial nu•ber, we ' ll jue t

eearch the

l

exact ••rial nuD'lher .

I

of locidencee, and tbia •hove t.he akill of the

10

We have co•• up vich a couple

like a 2 and a 2 baa looked liks a %.

Jf

11

YO\I

t be

nlft

1f

yCH.a

12

run the• boch, you find out. c.hac. it le regi et.ered

ll

that. vay .

l<

fora:, or it vae a miet:.ke in the call 1. 1l,

1'

do look for idloeyncracico in tho eoria nu•ber that

17

11.i9ht ••kc it 1aorc ape. that

lt

There vae a •lee.aka in the princ.ing on the

The epecialieca

20

• 011tc

~ill

kind of inveraion

analyte the reaulc.a of

Like 1 ••y. eince t.he ••rial nuaber i•

Jl

axacc. . t.he only re corde vhere che •••rlal nu•ber ie

22:

1dcnt.1£1ed .

will be p~U'-'l<ir.J

Exhibit A, Pg. 580

183
11

l

Th• •p•clalioc.• vill eli•inac.e record•

2

'baead on c.he c.ype and de•cripc.ion of c.be flreana .

1

P'or th• na•e aearcb. ve do cho na••. ve run the F'Pt.,

4

the 11conoce data b aee . and the SOT data baee vitb

S

tho naae to •ee if there'• any trade n . .o•.
l

'

t

chore•• any c.rado o••••• then va go back

1

c.o c.he ro9i •t.ry c.o run c.hE c.rado na•• co ••• if t.hac.

I

c.ra do na.ao ha• any Tic.le 2 veapone ro9'i o t.o r ad c.o it,

t

'bacauoa in ••ny c:aoea c.he a9ento call ln vlch a naaa .

10

That

individual t"r-no out. t.o be a

11

to be a opec:i.•l ~cupat.ion•l t axpayer.

12
!l

16

turn•

out

Although c.bere vao noc.hin9 ra9la t.ared under
hlo n•••·

Chere vere veapono regloc. orad 1.indar hi•

c.rade n•••· h1o coapa n)• name .
lS

lic:onooo .

1 u ••ny

c:•••• ,

c.hey

111ay hav• t wo or c.hree different t.rad• na111ee.

Again. a• I

cmph~• i~ed

a mlnutc a90. to

17

cneur& Lhc thoroughncoo of the oearch, th• rcquc•ting

11

a9ent ahould eupply a• auch ittfor••t.ion •• he

l'

poee ibly can .

20

only tlr•t n•••/laot n a•• • and that•• all he ha•.

21

baeed on an inforaant or cip or <what.ever,

2~

vhat we run ..,it.h ,

A lot of

ti•••

tha t

lnfor•a t.101\ i•

and that"•

io that

(i·::
Exhibit A, Pg. 581

18'

l

••ntioned befor• "'"'ll run the SOT data

llcen••• data

l

b••• and ve' ll run t.he Fr-L daca baae,

).

baae, c.o ••• if ve co.a \IP vic.h anything the.,r.e, and

4

then vo•ll 90 hack to the NFRTR to find out if thoy

S

have any vcapone rcgl•tcrcd to thcM.

'

Depending on vbat ve coao up vic.h , vhon vo

l

COMO up vic.h eiailar n•••• .

and ve don't b.ave a data

a

of birc.h,

t

Buooay, and '"'e eo•o up he•e in a dlttoreuc et.ate,

if "• c:o1110 up vlth Allio on St.evena or To1a

10

ve' ll get the he.rd copy or t.hc •icrofil• copy of the

11

• etual tran afcr record to ace if the d~tc of birth i a

12

the oa111a aa the agont hae,

1l

Depending on

c.h~

volu•e chat •..•o 'r• daallns-

15

aondl1''1

16

got there, ~e were aondins b-ei ea l)y either hit or no

17

hit, "and 'We'd eend t.he hit.

lt

if they were real

lj

chat we • v• h<t.d and to nr.a ke eur•

20

cry n ot to eend the wrong inforMatlo1t,

21

•ending probably "'ore iofora3.t.ion than t.he a9ent

I have baan there a

year nov,

and b afora

We would ecod po••iblce

cloee, but due to eo•* d ifficult.lee

that we don't • • we
""• hav e been

Exhibit A, Pg. 582

185
ll
l

0

If we come up vi ch,

if chere•e 2 2

2

To• Smith• iu the State oC Arkan•a• that have

l

t-c9iacered veapono, ve ocnc:i all 22 Tom. Sr.ithe., even

4

i f the date of birth is differ ent, just to give the

S

agc~t the opportunity to do the investigativ e work .

6

racher Chan jue t

1

think might be · !\::,

8

i c.

9

i:night po••ibl y b •

tellin9, herc•e the one that ve
the othe:- 19 v~ don't. think are

we ' 11 let che agent dee id• "'hether t h at ocher 1'

10

t.he indivi dual th•y ' re looking for.

That•e Yhy vc can 90 all the way baek to

ll

the harci copy .

12

aiic::rofilm to r eally pin dovn if thci indi vidual "'e

13

hav• ie the on• yoo•re looking for.

We can go •ll the vay back co the

"
look UF ;,.nd there vae ~

15

probleia in Baltimore vich a

16

pr~blcm up in Minnccot•. I think it vae, about oi~

17

monthe -.go ,

lt

i& oeut. to an agent . .

19

ic • e a routine, he '& noc. in a bi9 t•ut1 h

20

uee d to gee. i t

21

Now if ~n agent. a.aye it ' •
back unt.i)

from nov on. before negative i nformat ion

the

if the agent indicate:o t hac.
f or it , ve

back c o h i m on the oame bue ineee d ay.
routine ,

next .huoineoc;. day .

ha may not. get. it
I(

it'~

an urgcnr.

Exhibit A, Pg. 583

186

l

h• vlll 9•t it back chat day.

l

we• 11 call t.be .infora:..t:lo1i back to hi• and.

)

the hard copy of the infor.ation vill be

t

hia .

••il~d

to

lf he nccde it rc~l ta.et, vc PodEx it.

5

The rcaeon vhy the routine ••Y not get back

'

th• eame day anymore ie all che negative

7

inf oraation

I

do•• a look up on a n.a .. e and coaea up with "Z•r·o ,

t

e a n•t find tha c naaa anywh• r•. befora t.hat

by negative, I ••an, it cha epecialiec

10

inforaation 9oe e back eo the field agent, it C'O.c• to

11

the bra nch

12

d0vn and ba e ically doeen•t: do any.ore than vhat. che

ll

epacialLet dLO in the look up, but 9oa e ove r all the

14

information on c?'le prin tout• to oaa it all the

lS

procaduraa h~ve been fo ll oved right to t he very end .

"

ch~cf'•

Old they

office.

The br•neh chief aita

look •t the

PP~

data ba•c .

Did

17

they look at the SOT data ba•e .

19

that were eiiailar to the ttame that vao reque.eted.

lt

Old they check out the actual hard copy of th•

lO

aicrofila to eee if thi • vae the individual and

21

•09•0ne had juet ai••pelled lt vhoo lt w•Ut into the

22

d•t a b•ee

Did they have name•

Exhibit A, Pg. 584

187
lS
Once t.he br-a.nch chief revlewe thle

1
2

c~letely,

J

look·up epeclali•t, vho vi ll communicate, tran• •it

4

thle lnforaa tion to the field

5

then h••ll recur-n cbe inforaatlon co the

~gent.

What Yc'rc doin9 ie. we're hop i ng t hat by

C

thie oooond level of review, and ic really doeen•c

7

••Y anyt.hln9 negative abou t. t.h• look • UP e pecla.11. a c ac

I

all, becauoe the people v• have right. nov have been

'

doin9 it tor a
eearchc e ;

lon9 ti•• and t.hey•re excellent in

10

tbc.l r

b\at you do theee oea.rchc• and you run

ll

thc o o. prlntof!o on the ecrccn and you t ra ck dovn

12

th••• print.off• hour ate.er hour for a full day.
1 re"'e•ber du:-in9 che Oklaho-.a City bo•bin~

11

h~cre

l4

we "'•re running i :. 2(

a day.

,.

for about. cvo veeke

1'

mi u•cd bccauoc there• e only e o many 1
"inucc1 in an

11

hour and ao ••ny houro in a d•y .

1•

branch chief ti•• to juet. ai.t. t.h•r• and eay, 9•e"Z,

l'

vonder l! thi•

20

tha t

ll

check c.o ••e •ayb• i ! it.•o ln t.h• u .... clt.y chat che

21

agen t'• lookin9 for

o t. r~ig ht.

Somecim•• chlng• aro

So chi • 9i.ve: • the

lva.n snit.h •ight. ba t.hl) Evau $ialt.h

th• agent. vane&.

tc•e the •••• et.ate

thi~

guy Ol .

Exhibit A, Pg. 585

188

1

So it. 9ivee·a little •Ore opportunity to

2

•cope out different poeeibilitlee.

4

day long for eight hour• .

Tb• •P•Ciall•t•

So vc• rc hoping that cliainato• the

5
'

po•elbllity ~hat a nything goea out erroneou• becauee

1

ve knov you•~e baeing your varrant.e on it, you're

I

baelng your encriee on it,

'

vant a ror• 4 vavad in your face when you 90 in there

and you certainly don't

10

to ehov that the guy doce h~vc ~ lcgally · rcgi etc red

11

Title 2 vcapon.

l ' • net

13

l<

by telephone anC then "'•'11 oend hard copiee back cc

15

you.

At that point, the log entry i• clo•cd out,

16
17

and v e maint&in thc•c filcG for future reference in

18

c••• one or the other of ue hae to CYA for one reaeon

••

The l •portant face.ore , agaln, are :

21

c o-un lc a c. ed t.o t h e

field agent• .

22

• y bo• • . Terry C a t c::o .

who ' c Go wn

tf it.'•

and I be li eve tha t.
•·

'<'e ll .

h e ' a back

(/),
f!"f) . ,..,. •

•

Exhibit A, Pg. 586

189

0

l

nov, buc. 1-• '"'•o dovn .a.c che conference 1n Souch

2

Florida vith che diecrict direccor• and SAC• •• one

l

ot the topic• he vae talking about. •9aln,

4

up. the look upe that we do for agento .

ia. ~oo~

The ~ore info•a~tion that vo can get over

S·
6

the phone on the individua l

that you're lookin9 tor,

?

t,h• bettor it ie for ue and che beet.er th&

8

int'or"'aci.on comeo back ,

m•an, if you have a •iddlo inlcial, give

to u•.

10

it.

11

end, SflVC it. t.o ue.

12

l)

If he has a •juni or• or a •ocnior• on the

Th& aocond pare of t.he infor•at.ion, t.be
rout.in& and urgent, ve•ve ~lready 9one over.

1¢

So,

!.gain,

:l kinci of co11eJd•r thi• probably

lS

the rnot1c i mporcanc euppor;:. funcciou t.hac 'WO have.

16

Equal to it, of couroc,

17

of the data baec to beg in with .

ll

If t.he i nfor-.. at.ion chat.•o in th• d•r.• b•oe

l'

le not a ccurat.•.

20

good of a

21

22

i a .. ai.nta i ning che accuracy

•~arch

it. cioecn"t: ••ke any dlfterence how

vi= do. ic.•11

CO••

out "rong.

Sot.he infor-ra:at.ion on tho 111,000 v•a.pono
~h a t

•re in the dat~ b~oc h~o lO he 10U percent

@
Exhibit A, Pg. 587

190

..

l

accurate:.

2

courc. and, of couroe , O'-'r cercifica.c iono t••tity t.o

3

that ,

4

t~•tify,

t..ike I told you b&for 4, ve t.eet ify in

c oo , when

"'• • r• not. phye i eally there tp

t h •t we arc: 100 perc ent accura te.

5

Bu~

we have found inetanc ee in our record•

,

inverted; vovela i-• h•~ beon chau..ged; aud, of

I

couree, cosnpuc•r progra•• only pull up vhat. you put

'

in.

I

10

11

We' vc m&dc ,.onumcntal e ci• i d co in corrocti ns

th~• ._

m•jor correction event cook place in lSi&'.

k

1l

That•• thr •o indivlduai.• vho review

lS

co rE:qieter a T.:.~ltt 2 tJ8 apon, or co er..,nefer

16

2 veapon .

a Title:

Befo re it ac~ually g cta entered into the

l?

1'

that • >:a a!ne r

20

• creen co •ee if the na•• vao apellcd corre ctly vhen

21

lt vae put in.

rn1cui..1

to a apeclali•t, vho rcviova i.t and the

.,..,1.:-:- ..

bee au•• obviou oly t h;i.~ • u t:.ha m.o•t

:·: ,;JT , ..

Exhibit A, Pg. 588

191

Jwd. of

co~ r••·

l

ord•r that it•• put in.

th• ••rial

2

nu•b•r of the vea.por.. type of veapono and C.h•

l

deecription of the "'eapon.

Thi• quality rcvicv team, vhcn I !lr•t caae

t

5

in a yoar ago. our error rate va• botwocn 49 •nd SO

'

percent, eo you can imagine vhat th• accuracy of the

7

NFRTR could be, if your error rate•o •t to $0

I

percent.

'

percent. and chat•• total.

10

The error rate no\J ie dovn 1:.0 belo"' I

That'• coa•on error• a.nd

critical error•.
We do a little finagling upet&ir• on

11

12

>what • • you k now, we coneider a co-on error ie a n

1)

error in the data baae eucry, but it doe an• t

affect a

look up .
15
l'

really have any

da.ma~e.

A critic•l error io one where tho

17

gcntlo•an'a nacne io opcllcC wrong .

11

are probably belo"' 3 percenc. ,

1'

Thooc error r ate •

• bouc. I P•rc•nc. .

20

21

We hope: c..he ORT

eince • ye•r ago. all

~h•

t.•••

Th• c.ot al error rac.e•e

ha• ••de e1.&re c.hac .

en~ rie o

~ha~

90 l" •re

22

Exhibit A, Pg. 589

192
20

The only v;ay vec can go bac k. we b.av• a

2

proj•ct •• ve ••tabliehed a project. we ••tabliehed a

t

convertod to the new data baoe.

5

data ba•c comee into e ffect, 'We'll begin tho taok

'

force •••i911.meut.

A• •oon •• the new

What ve •re going, to do i o v• •re 9oin9 to go

I

back, •tarting vic.h t.he lac.eec. •nt.ry and working back

t

t.o the oldeet entr)' and roviev every hard copy •of

10

every doC'\l.aent. vith it• entry into th• data b••• to

11

•• e

12

thie would tak• 711 •an day• to do thia vi th t ive

ll

people eitcin9 at a computer eight hour• a day.

~f i t ' •

correct .

1 think or19i.nally "'• figur·cd

But i t •e t he.

0111~·

'-'•Y c.hat ""' can fael

15

chat

It vaa fine

l'

to b~gin putting everything in accurate a yoar ago or

l'

back to the early •aoe and "the •100 and cha ' ' 0•?

70
21

Thie ie che only vay ve t•el "'• could
correcc lt .

Ho one in 1$0 or no ono c.h•t

h•• C'Onu: \IP vtch .a pr'Ogr&ftl chat

'"'C C'Oto

I've 11.novn

uoJC

. . . ..
Exhibit A, Pg. 590

193
2l

1

dat.a ba•• vi. l l hE-lp

1.1•.

A.nd t.he re aeon vhy ""e • r•

3

4

Ed Owen•' •hop. or maybe it'• Jerry out at Tracin9

6

Contor, ha• ownerehip of the data baeo dealing with

G

th• weapon• da.ta baoia.
Once chac goee in,

'1

I

there that'•

,

to brin9 it · ·

li•~•d

1t """ hav• an MPS in

ae an MPS, chio vill correct thac

c.o corr•cc it. a e au HP5.

But you

10

can't do anything · · tberc'o no dat:i baee, that

11

know

12

n•••• .

oi.

o~ no pr05r . . . to correct ·~••pcllin9• of

13

W• "'·i 11 have au addr aou

14

t.o have a:i aci.d:""ee• correct!. ou. 'lip code in th• cl.a::.e

15

b•ee, b._.t '-'& ' 11 ecc '"'hen ic. finally goto converted

ovor.

I'm not

17

~urc.

And the third thing

~~

do io !or field

11

i"•P•Ct.or• vho do regualatory c;04np li ancet inepectiona ,

1'

They call int.o ue co ge t

20

Tit.le J veapon• .

22

•cttl~ Jny proble ... o bc~vcc~ the plty.11 '-'"'l

an lnventory fro• ue of

we aend c.he inventory ouc. .

They do

1nvc:-t~Ot"\"

(.9
nue111.1

..... ··

~

Exhibit A, Pg. 591

194

l

and the \IT'itten inv•ntory .

2

Th•t. • •

really cbe end of •Y pr·• ••nt.ac.ion.

J

l want.ad to concent.rat.e on tho•e cb.r·• • ar••• .,

I

t

vanted to leave t i.Ille for Q and Ao, bct:a\&•o I fi9urod

S

tho~o

might bo •o•c Q -.Ji.d A• on tho look up.

'

(Pauee.)

1

No queetione.

•

Oka y,

Thank you very •uch.

\End of requ•et.ed e xcerpt.)

'
10

11

ll

16
11

..
11

20
21

'. :"•'

,...

Exhibit A, Pg. 592

195

tJ'NITm STATES DISTRICT <X>URT
EAS"'rER.N DISTRIC!' OF VTRQINIA

NEWPORT NEWS DIVlSION
)

4

- - - - - - - - - - - - - -

s

UlfITID STATES OF AMERICA

crindnal No. 4 :9ScrS4

6

vs.

NetfP()rt New•, viroinia

7

JOH.N DANIEL LEASURE,

8

- - - - - - - - - - -

: May 21, 1996

TRANSOUPT OP PROC&EDINGS

9
10

UtfITED STATES DISTRICT JUDGE

11

12
13

APPltARANC!:S;

14

?or the United States:

1S

United St•t•• Attorney's Office
World Trade cent•r
101

w.

Main Street, suite 8000

Norfolk, vtroini•
By:

16

23510

AREND.A WRIGHT ALLEN,

ASSISTANT U.S. ATTORNEY
17

For the Defendant:

DAVID N. MONTAGUE, ESQUIRE
One East Que•n'• Way, 2nd Pl.
Hampton, Virqinia 23669

court Reporter:

Diane Poulin

18
19
20

550 Ea.at Main St., Suite 100
Norfolk , Vir9ini• 23510

21
22

23

Proceedint;l• recorded by .echanical •t•nocJraphy,
tran.a-cript produced by co.puter.

24

25
Biggs & Fleet Court Reporter•
Norfol k - [phone]

Exhibit A, Pg. 593

196
2
I N D E X

2

OOV£Rm1F;NT'S f:VIQENCJ!

3
4

5

QABY SCHAIBLE

6

Oireet Examination by Ms. Allen

23

7

Cross-Examination by Mr . Mont&Q'Ue

32

8
9
10

11

L£WJS JQNES

III

12

Direct Examination by Kr. Montaque . . . • .

48

13
14

JOHN p

15

Direct Ex&llination by Mr. Montaque

t.EA$t18E

.

.

53

16

"

18

CHERYi.

J ,EASUU

Direct Examination by Mr. Montague

59

19
20
21

22
23

24
25

Bi99s & Fleet Court Reporters
Norfolk - [phone]

Exhibit A, Pg. 594

197
3
1'BB CXJOtt:

All ril§Jbt.

2

3

Stat•• of Aaerica versus John Daniel Leaaure.

s

I• the 90vernment ready to proc•~. Ma. Alled?
'·
MS. ALLEN: Yes, Your Honor.

6

MADAM CLERK:

7

HR. MONTAGUE:

$

THE COU'RT:

Let rae make some notea and I'll

9

r19ht with you.

Let the record re.fleet t.tlat tM

4

Defense ready, Mr. MOnt•9U•?
Yes, ma'am.

6:_

10

defendant, John Daniel .Leasure, i• pre. .nt in per~ and

11

vitb bi• attorney. Mr. David lklootaque.

12

would reflect that pursuant to an i.odict. .nt returned in

13

tii. fa.ll of

14

•• I recall, for trial on the defendant'• pl••• of not

1s

ouilty.

16

199~.

And t,be file

this . .tter e... on early in Ja.nua.ry,

He was arraigned on January th• 18th and, let ••

17

o•t

18

\4th.

19

January, and on January. the 19th, the Cow:t found

20

conti,n ued the aatter to look over the record, and on

21

February the 6tb, the court announced it'• verdict that

22

he vu qu,ilty of Count 1. Count 2, Count l. COUnt 6 -.nd

23

not QUilty of COUnt.s 4 aM S-

24

25

th• data strai9ht, he was i ndicted on November the
It c.,.• on for trial on the 18th and 19th of

Thereafter, Mr. Leasure throu9b
aever•l motions.

hi_•

attorney fil.S

The matter vas then continued for

Bl99s & Fleet Court Reporter•

Norfolk - (804) 625• 6695

Exhibit A, Pg. 595

198

•
2

lo the -anti.. th• defenchnt hu filed • .ot1-on for •

3

nev trial and the matter is here on that a.otion ••

4

supple:ment•d and also for a review of th• preaentence

5

report at the sentencing.

6

aa to the proceeding but, Mr. Montaque , 1 aaau.rn.. t hat

7

your 111ation for a new trial would be fore...oat, and I'll

8

be 9lad to hear you with regard to that.

9

have your brie f and matter& f i led in connection v ith

1O

I haven't

~•ally

••t motions

Of cour••· I

thet and have reviewed thea in det&i.l.

11

12

Your Bonor.

13

tbea.

14

Goverrunent in any crim.in..l pros•cution i • to 111&ke known

15

any exculpatory evidence of which the GovertuD11nt

16

reaaonably knows .

17

I'• sure that you're well faailiar with

en. of the fundamental reqvi_r_,.t• on the

In this case -- let me 90 back to the beqinnin9.

18

Th• thino that has troubled me about thia c••• al) alon9

19

ia that thi• is in that set of Federal •tatute• - •nd J

20

••Y F.cleral because I don't know of any •t•t• •tatutes

21

like this - where the.re is no requ.ir..ant of •cienter or

22

. . n• rea or .oral turpitude in order to hold • per•on

23

quilty ot a felony even thou9h he be an honorable a.nd

24

lev &bidi09

2~

qood taith •istakes that the law require• or havino rule

citi~•n

like th11 defendant aiaiply . .k.ing

Si99s 6 Fleet Court Reporter•
Norfo1k - (804 ) 625-6695

Exhibit A, Pg. 596

199

ch~• tMt he d'oesn't

know .i>out convert hi.a - -

2

cr1aina11s• what is otherwi se innocuous and nondanqerous

3

conduct, aerious criminal acts.

4

'l"h••• felonies all carry ten-year sentence•

5

potentially •nd S250,000 fine$ .

The Court relied in it&

6

conviction on the case of, u s

7

u.s. 601, a 1971 case but t he holding ot that ca•• that

8

no apecific intent need be proved has been called into

9

very aerioua question and I think overruled by the case

y

Pre nd , which i• at C0 1

10

of Staple• against U.S. and that waa dec14-d by the

11

Suprea.e Court i n 1994 in a decision by Juatice Thom.as .

12

We've r.cited that d.cision to Your Honor i n our

13

aateriala that we filed .

14

Preed involved a gentl eman who wa• in po11esaion of

15

hand grenades, and his defense essentially wa1 th&t he

16

didn't know that there was anything wrong with that.

17

And th• Court believed that inherent l y there was

18

eo•ethino wrong with that end that there

19

would have been surprised if he had learned that, in

20

feet, a private citizen i$ not supposed t o

21

9l"•n.od41•.

22

~

Staples case

involv~

w•• no way he
Po•••••

hand

a aan vho oviwMS •n AK-15
It i a no.-...lly a

23

"'1:\ich ia a QUn that can be convertftd.

24

aeai- autocaatic weapon that requires th• pull of a

25

trio;er to fire each round but c•n be converted i nto an
Biggs

& Fleet court Reporters

Norfolk - (804 ) 625 - 6695

Exhibit A, Pg. 597

200
6
autc.atic fireara and, hence. be a . .chine·• qun within

2

the . .aninq of the NFA.

3

not know that was a capability of the "9apcn.

4

And he contended tb&t he did

The Court refuted to so 1n•truct th• jury th.at he

S

didn't -- that. they could conaider that and ao the

6

Supreme Court reversed and did ao specifically aayinq

1

that the reasonino u s. v . Praftd provided little aupport

8

for d.iepenaing with mens rea in thi.1 caae, that case

9

involv ~no

10

the 9a.ntleman with th• AX·1S.

Thia case is not like thot.

In

t~

c&ae we have a

11

biQhly aophisticated qun person, a t.Seral lice.n.aee

12

licerui:ed •• a aanufacturer who, •• tM court knows frc:.

13

. . tarial previously subraitted, i• hiqbly reQ&rded in bis

14

field, hold• one of the top patents in the development

15

of 1ilencer or suppressor technol09Y.

16

•rraiQNn•nt, which I think the court didn't mention th•

17

date, I believe it was January the 5th -· I

18

in December •ctually.

!arly on at the

th~nk

i t was

Yes, i t waa December 5th.

19

THI COURT:

My records indicat• it vu

20

NS. ALLEH:

It vas December 1a't.

21

TH! COURT:

December 1st, okay.

HR. MJNTAGUE:

This defendant va• a.rraiqned before

23

JudQe Bradberry, and at that time Kie• Allen waa not

24

evailabl• but there was somebody there troa th• BA'f'P' and

25

there we• somebody ther• fro• the U.S. Attorney'•
Bigqs & Fl•et court Reporters
Norfolk - (804) 625·6695

Exhibit A, Pg. 598

201
1

Offic•.

I turned over to them c:op.i.•• of all of the

2

doc\menu t.hat beca.e the evidence in tbi• cue of

3

Mr. IAaaur•'• attempts to rev•rse certain tran•f•r• of

4

the weapon• for which he vas indicted.

S

And I, frankly, thought that that wae QOin9 to be
And I think Ki•• Allen thouoht it

6

the end of the case.

7

m
ioht be •• well but she said that -- ahe aaid when I

8

talked to her on the ,phone she said ah• aent everything

9

up to waahington to be analyzed and ahe'd let me know.

10

So not too 101>9 before Christaas ah• called M and said

11

that, in fact, tb• ATF decided they •till had a case.

12

u.ked her ttbe.t it eou.l.d possibly be but •he aaid, wieU,

13

ah• waan't OQing to t .e11 .e or she aaid ah• vaan't going

14

to di•cu•• her case over the phone.

15

invitation to come and discu5& it in peraon either.

16

t

Thai-. vaa no

What she knew and what the ATF knew wa1 that -- as

17

w did not learn until w heard it on the atend -- was
e
e

18

that Mr. Scha,i ble of the ATf' would inforra u1 that thoy

19

had changed their rules on how one went a.bout reversing

20

a tran1ter or voidinq under the cocmiaaion of the Nl"A

22

procedure that had existed u

23

And Mr. Schaible said that bad they 90tten the transfer

24

requeat or the voiding request from hia.

25

procedure involved sending back a form which he had to

far &1 be knew torever.

'rhe new

Bi99s & Fleet court Reporter•
Norfolk - (804) 625·6695

Exhibit A, Pg. 599

202
8

fill out a.nd 1t bad to qo back to Wa•h.inqton to be

2
3

approved.
And Mr. SChaible also said there a no vay
1

tba~

4

Mr. Leaaure could have known that

5

notify anybody in the field, it waa juat •omethinq to be

6

learned on a case by case basis as you tried the old

7

technique, I suppose , they would tell you what the new

8

procedure was.

9

~au••

they d.idn't

We.ll, not knowing that, we were not prepared to

11

voiding• had been fa.xed to the GoV9rn.ent in t.M uaual

12

aanner.

13

of the forqotten phone records that ahow wltbo\lt a doubt

14

that for 24 minutes on the 16th day of March,

15

Hr. Leaeure faxed from his fax llLOChine in Saluda to the

16

fax machine of the ATF at their weapona re<;Ji•try 24

17

mJ..nutea worth of documents that were theae very

18

tranafera submitted in court.

19

We would have and have aubaequently found a.ll

It wouldn't show up on the phone bill if they had

20

not ectually been received just lilt• an incOllpl•t• phone

21

call doean't show up on a phon• bill, ao th4:re'a no

22

qu.eation that he sent tbea.

23

they 90t th...

24

aft•r tb•y 9ot them if they put th•• in

25

in th• traah can or if the buildi"9 burned down.

Ther•'• no quutioa t .b.at

We don't know what they cl.id vitb thea
t~

ab.redder or

BiQ9$ & Fleet Court Report•r•
Norfolk - [phone]

Exhibit A, Pg. 600

203
9

we don't knov what happeMld but all we do k:nov i•
2

that when Kr. SChaible showed up here to testify. he

3

••id w. h•ve no record of havinq received then..

4

not the equivalent of not havino received thea ju•t that

S

he wa• unable to tell us what had happened.

6

certainly did our part or at least what M LO•eure
r.

7

thouoht va.a his P.a rt in followino what he then knew to

8

be the procedure.

9

wh~ch

is

W
e

The Court's decision turned not only on th• Freed

10

c aae but al•o on the exhibit& pot 14 evidence by the

11

Goyenment, these tbing:s in blue

11

ribbon• on thera that said tbat the we•pon. in the

13

various counts of the ind1ct919.nt we.re not properly

14

reoi•tered with the KPA.

15

true, •• anybody would a government aoent'• teati1a0ny

16

and e xhibits , obviously, i s goino to be taken aa true

17

vithout aome ki nd of very powerful evid•nce to t he

ia

contrary.

19

baO•

The court

vitb the little

t~ated

that ••

But what the ATF also then kne-w and didn't tell

20

anybody va• that at the time in qu.e•tioo of thi• caae,

21

which Ja February of '94, the Court will rec&ll that

22

tbi.• -- th• actual bu$t of Mr. i.euure'• plece

23

l::luain••• and trial were about tvo

24

th•t two-year period, the fireanu re;iatry wu t•k.e n

25

over by a gentleman by the name

)19&r•

ot

ot

e.pa.rt and in

Thomae Buaey or Busey

Biqg.s & Fle.et court Reporter•
Norfolk - (804) 625·6695

Exhibit A, Pg. 601

204
10

- l'• not •ur• bov you pronounce hi• n-... - and

2

Mr. Bu•ey h•ld a briefing in October of '9S ••Yin-; that

3

when h• took over a year before. which would have .been

4

<>ctober of '94 and times prior to that, the agency wa1

S

1ufferi09

6

det•r•ination of wha t firearms were r•oiatered proper ly.

'

!ro~

a SO percent error rate in ita

Be aaid on Page 19 o f the tranacript that ve 9ave

8

the COurt, "When I first came in a year ago, our error

9

rate vaa betveen 49 and SO percent."

Thia particular

10

briefinq va• conducted on a ta;i. and the Q•ntl....a.n who

11

J"ve becOIM acquainted vi.th since the trial

12

Preedo9 of In.foraa.tion Act bas also tried to

13

tape, ao far has not been able to do that.

14

event, at the very tiiae when these undou.btable documents

15

were t>.ino produced in February '94, they were aubject

16

to a 50 percent err or rate.

thro~

the

~t the

But in any

17

Now, I don't know when knowledoe like th•t becomes

18

reaaonable doubt as a mat t er of law, but it aeema to me

19

that with 50 percent. you've qot an equal chance of the

2D

Govern.ant being vron.g .

21

an error rate of 50 percent.

22

I would th.ink you're the.z-. at

AO&in, ve were not told that.

M a Ntter of fact,

23

t•• tnfor-.d that the ATF tried to auppreaa th.at

24

particular briefinq, tried to have the tran..cript a.nd

25

the tape de•troyed.

It was not until March that they

Biqqs & Pleet Court Reporter•

Norfolk - (804) 625- 6695

Exhibit A, Pg. 602

205
11

ve.r• produced under the Freedom. of :lnforaation Act.

2

courae, our trial va.s loog over by the ti.a.e th.&t

3

1nforaation vou.ld have done us any

Of

4

It certain.ly seems to

111e

CJood.

sa.ethiDQ! for th• Court to

5

con•ider in deciding whether or not thi• c••• need• to

6

b• retried, that ki nd of what I would coneider dynamite

1

evidence ahould have been made •vailabl• to ua.

8

certainly, the ATF knew about it and whether Mi•• Allen

9

did or not I don't know.

10

But vben I filed my letter ..... wMft 1 auppl...,nted

11

•Y pleadino• _in tle new trial part of thi• ca•• on. Karch

12

the 25t.h, ve ae.nt that to

11

She received it on the 26th, and on the 26th ah• filed

1•

part of the saae transcript by Mr. Buaey bu.t her filing

15

left off the important pages for &099 reaaon.

16

ah• knew that or Whether that's what the ATr oave her, I

17

don't know but I believe her tranamiaaion quit on Paqe

18

15 and all of the impor tant $luff ia after that.

19

Ki&-&

Allen by certified .ail.

Whether

And her pleadinqs says that we 're not conceding

20

that we bod to qive that to us but they did anyway.

21

l'• not 90in; to say there's anythinQ 110n.atroua or

22

wicked ooing on here but it cert-1.nly eppeara to ae that

23

t.hi• de!e.ndant wa..a entitled to bettu tre•t.Mnt by hi.a

24

Govern.ant tb.a.n he has 9otten in tbe prosecution of th.is

2S

caae.

So

B11entially, I b4tlieve that cover• it, Your
Bio9s & Fleet court Reporter•
Norfolk - (804) 625 ~6695

Exhibit A, Pg. 603

206
12

Honor.
2

THE OJUR'l':

All r1¢t. sir.

3

KS. ALLEN:

Your Honor, if I can I'd like to go in
I

'

the order that the motions are filed juet for the record

5

aince I auspect t his will 90 for appeal.

6

MOtion that the defendant filed was a lllOtion for a new

7

trial, and he filed that moti on rioht after the Court

8

found hie client gui lty.

9

t ,he firat motion, Your Honor, that counael ie cor~t

The tirat

I would juat like to arqu.e in

10

tbat on the day o f the arraignment, the Jenck • aateria.l

11

&ftd the discovery aateria1s were provided to the

12

defendant on DeelfJllber 1st of 1995.

13

aateriala included Government &xt\ibit• 1- 1. throuqh 7-5 .

14

The di•covery

How, those are all the certified copiea of

15

nonr99i1tration.

16

Count 2 of the indictment; 7-2 went to Count 3 of t he

17

indictment; 7•3 went to Count 4 of the indictment; 7-4

18

went to Count 5 of the indictment; 7-5 went to count 6

19

of the indictJreent.

20

And the Court wil l recall 7- 1 went to

I wae not pre.s•nt at that arrai9nment.
~nt

Bob

21

Brad•nham was present with ATP

22

evidence vu t\II1led over by the Govern.ant.

23

that I did aubaequently receive a

2•

Kr. IA...u.re#s attorney reqard.ing docuaent&t1on.

25

Joe hrkio.a.

pae~ et

The

It i• t .rue

froa

I had previously sp<>ken to Mr. M
ontaque prior to

Biggs & Pleet Court Reportera
Norfolk - (804) 625 - 6695

Exhibit A, Pg. 604

13

2

bMo filed by the Grand Jury, Mr . Mont•Q"U• dJ..d t•ll .e:

3

that he tl&d paperwork that would cauae tbe Governaent to

4

diall.ia• ita ca.ae .

5

be preaent at t he December 1$t arrai gnment but that I

f

would have all of the evidence ther• for h i m.

1

him to bring the documentation to the arraiqn.m.ent, th•t

8

I v11 unfamiliar with the document• that he vaa

9

deacribinQ to me over the te1ephone but that I would

I told M . Montaque that t would not
r

I asked

o.c . .net o-t

10

t.&k:e it and aend it to ay expert in

back to

11

bi.a on. that.

14

nO\if Defen.e Exhibit 1-8 through Defense Jtxhibit •• I

1S

mean, Defense Exhibit 1-8 through Def•n.a• Exh.ibit \0-1 8 .

16

I received those materials probably in mid December

17

ri9ht before 01.ri&tmas.

18

20

and co.pare it vith ell of the certificate• that he had

21

previously provided as listed in 7· 1 thrOUQh 7- 5 and to

22

let M lcnov if that chanqed h.is opinion.

23

It vas in early January ri9bt after Nev Ye•r• that

24

I spoke v ith Mr. SChaible and ray question io hia vas

25

aolely, doe• this chanqe your opinion.

Hi• reapon8e to

Biggs & Fleet Court Reporter•
N
orfolk - [phone]

Exhibit A, Pg. 605

14
~

was no.

I said thank you ve ry much, called

2

M . Montague and told Mr. Montague that it did not
r

3

change the opinion of our expert and we were nqt

4

dismissing the indictment, but I did say I was not

S

trying the case on f i le.

6

with Mr. Schaible regardin9 why it did not cbaJl9e his

7

opinion.

I had no further discu$sion$

8

If we look at -- if t he Court looks at the

9

defendant 's first· motion for a new trial, I think the

10

case law that they've cit ed and the case law t hat t he

11

Government's filed shows that on the first motion a1one,

12

which t he defendant has t i tled motion for a new t rial,

13

should be denied .

14

The Court is well aware that the defendant has to

15

show that the evidence that he is seeking is f avorable

16

to him, that it's material, and that the prosecution

17

failed to disclose that .

18

presented before the Cour t right now, all that the Court

19

ha# is the fact that docull'Gnts were exchanoed by the

20

parties and the Gove rnment decided based upon

21

M . schaibl e's opinion that the i ndictment would not be
r

22

dism
issed .

23

Based on the evidence

The case law that the Government is relying upon,

24

number one, is that the Government f eel s t hat the

25

defendant can't meet its burden and i s relying on the
Biggs & Fleet Court Reporter s
N
orfolk - [phone]

Exhibit A, Pg. 606

209
15

fir•t .ation to $bow t..bat

~

.-vtdeoee wa• f avor&ble.

2

There's been no evidence presented by the defendant tli'at.

l

abowa there was any discussion by Kt'. SC:h&iblA or_ay•e1f

4

r941ardinQ any favorable evidence that the defendant had

S

requeated.

6

A• I'm profCerinQ to the Court aa en officer ot

7

this Court, my contact with Mr. Schaible wae ve ry short.

8

t wanted to know if it cha ngied his opinion.

9

•KPtrt.

10

11

He s aid no.

H•'• "
the

I didn't need to know at th.at t 1 -

why it didn't change his opinion.

Additionally, the defendant au.at abow that it•

12

. . terial, that beinQ" the evidence that h•'• requested .

13

And the Pourtb Circuit bas defined material u

14

reasonable probability that had the evidence been

1S

di•cloaed to t he defense, the result of the proceeding

16

would~

11

Circuit 1994 decision, which is at 35 F.3d 929.

18

differ ent.

beiDO a

That 's a Kelly decision, Fourth

Additionally, Your Honor, the def•ndant not only

19

ha• to ehow that its material but that it'I related to

20

qu.ilt or innocence, and I don't thi.n>c: that the defeod.ant

21

bu done that.

22

cited in it• brief &11 of vhlch deal with nc:u.lpatory

23

. . tter• veraus inculpatory ... tte.ra.

2•

2S

There's three cues that the Government

TO 'be qu.i te candid with you, 1 thou9ht that . the
doculMnte were a forgery or false.

M
r. SC.haible d.id. not

Bi99s & Pleet Court Report•r•
Norfolk -

[phone]

Exhibit A, Pg. 607

210
16

tell •

that.

1 asked someone vbo'• been vi th the ATF

2

for 2S years who's in a high l eaderehip po•ition within

3

the ATF and very well respected within the bure•u, he

4

told ,.. it didn' t change his opinion.

5

nettd-4 to know.

6

THE COURT :

Th•t'• all I

I cited the Adverse caae
Wel l, t ell me -- 1 don't have the

7

e xhibit• ri9ht h•re bef ore -. .

8

M Montaque produced that you sent to M
r.
r.

9

juet ao I won't be off on the wron9 fork in th• road?

10

11

NS. Al.Lltlf:

S~haibla ,

It was Defense £xhibit 1 -- Defense

l!xhlbit 1-• --

12

THI <XXJRT:

13

KA.DAN CLERK:

14

W
hat v1a it that

the file?

Young lady, do you have the e.xhibita?
No, sir .

Did they not qo \lf'it.h you to

I'll get theo.

15

TH!! COURT:

we didn't have any e.xhibita, did we?

16

LAW CLBRK:

we did at one point.

17

THB COURT:

Well , t e ll rae was it Exhibit 18, is

HS. ALLEN:

There's a vbole bunch of exhibit.a and

18

19

I don't know.

that

~xhibit

20

they',.. l.iated Defense Exhibit 1, Defenae

21

Oefenae bhiblt 3, Defense EXh-lbit 4, Defense bhibit 5,.

22

Def•n•• EX.bl.bit 6, O.fense Exhibit 7. Defenae Exhibit 8,

23

and then the additional documents

2•

10 throu.gh 18 .

25

MADAM CLERIC :

~ere

2,

Defenae ltxbibits

I have the clerk checkinQ on it,

Biggs & Fleet COurt Reportera
Norfolk - [phone]

Exhibit A, Pg. 608

211
17

2

3

NS. ALLEN:

written on th...

•
s

THI COURT:

Solle of those dOC\119entS b.a_ve vo.id

SOiie of them. are .. _

I rea.ember n ow what you.'r• telk iog

'

about.
MS. ALLEN:

6

Not all of them had void written on

of them had void written on th••· eome of

7

th9111;.

8

them AQ•nt -- I mean, Hr. Sc haible testified that --

8ome

TH:& OOURT:

9

The se were a.11 of the trenalera to

O'OU.iM t.hen it bee.a.Me unnecessary fo·r Mr. Lea•ure'•

10

Mr.

11

purpoaea and we.re aa.rked vo.id •croas the froat and the

13

they W'tlre aa.rked void, two, and, thrM, did they ever

15

HS. ALLEN:

'?bat's

16

TH! COURT:

What else?

17

KS.

That ' s all t hat I forwarded to

19

THB OJURT:

All right .

MS. ALLD:

And

AL~2N:

eor--r~t.

Your Honor.

Go ahead.

vbat the cour-t &lao nMda to know

ot those doewtients dealt with all of the

21

ia that all

22

count• ot.ber than Count 1 of the indictM:at.

23

Honor, t.be Gove.n.ent•s position is atill tbat a.ll of

24

tho•• exhibit•, Defens• Exhibits 1 throu;n a and Defense

25

Exhibit• 10 through 18 are not e xculpatory . . ttera.

Your

I

Bioos & Fleet court Reporter•
Norfolk - (804) 625·6695

Exhibit A, Pg. 609

212
18

think it was an attempt t o pe rpetr ate a fraud on tb•
2
3

Court, to be qui t e candid wi th you .
And in the thre e cases t hat

I cited in my br~ef,

4

the Adver se case , the .Ignes v

5

Barker ca se t e lls t he Court that the Government is under

6

no duty to either disclose all they know about their

7

c ase or disclose the police investi9ation tha t's been

8

done on the case o r to disclose anythin9 that's not

9

exculpatory and that's what we did .

10

W
oshinqton e&se and the

There was one case of Jgnea v

Wa~hinqton

case a

11

Seventh Ci rcuit case that dealt with firearms and t he

12

c ite for that i s 15 F.3d, 671.

13

Supr eme Court 2753 and t he Court said that there was no

14

g r eat violat i on i n fai l ing t o discl ose the fi r earms work

15

sheet because the evide nce wa sn' t exculp atory.

It was denied at 114

16

That'$ one of the only three cases that deal with

17

f i r earms b u t , agai n, we d i dn' t thi nk the evid e nce that

18

the defense was providino to us wa$ truthful •videnc•;

19

we thou9ht it was an attempt to perpetrate a fraud on

20

the Court.

21

t110tion for a new trial, we 'd ask the Cou r t

22

fl)Qtion .

23

For t h at r eason on t he f i rst d e f enda nt ' s
to deny tha t

The defendant then tiled a zecond moti o n to d ismiss

24

only Count 6 of the indictment, and i n that c a se, Your

25

Ho nor , t he d e fendant's all e g i ng bas i cal l y t h at since the

& Fleet Court Re por t ers
Norfolk - [phone]

Biggs

Exhibit A, Pg. 610

218
19

word •t1reara• vu oot uS4d in th• count •• oppoa.d to
2

•ve•pcm• that that count should be disaia-.d .

3

Government'• relying on Federal Rule of CriAinal

4

Procedure 7-C-1 that tells us what the indiet ...nt shall

5

a tat•.

6

"n\e

The Fourth Circuit law tells u• that you'r• to look

7

at th• • lements of the offen&-e aa it'• l1et4K1 in the

8

atatute.

9

defendant can prepare a defense to th• charo• and

The Court is to look to ••• wheth•r or not the

10

wbetber or not that defendant u

11

double jeopardy if, in fact, that . . . . defendant is

12

aubaequently charged and that's th• O&niela cue. Pourtl

13

Circuit 1992 c ase.

1•

protected -oa.inst

If you 100)( at COU.ot 6 ot the indictllilent, it

15

ch•l'9•• that the defendant knowi ngly and unlawfully

16

poaaoa1ed a weapon, number one, and, nurab4r two, that it

17

w not reoistered .
aa

18

5845-8 defines weapon and Title 18 USC Code Section

19

92183 defines fireara.s .

20

tbo•• definitions, definition number one 1• 11•ted in

21

Count 6 •nd number t wo very siailar .

22

Stat•• Code 5861-D aakes it unlawful to

23

fi.l'ee.na vhich i.s not registered .

24

2S

Ti tle 26 United Stat•• Code Section

And if

you look at both of

In Title 26 United

Po•••••

a

It you r;Nlled the e leJDent1 out of Count 6 and if

you look at t he statute, the penal •tatute not the

8199• & Fleet court Reporter•
Norfolk • (804) 62S-669S

Exhibit A, Pg. 611

214
20

<Mfinitiona.1 statute but the penal atatute for which

2

h•'• chuoed. you. will ••• tb&t Count 6 ia in comc:ill&nc:•

J

with th• penal statute in the Freed c•••· whicb lists

4

the three elements that the Government haa to prove

5

beyond a reasonable doubt and, that ia, poa1eaaion, that

6

they are firearms, and that they were not re9i1tered.

7

The defendant also says that Count 6

do•• not use

8

th• word ••t1rearm'" but

9

11\e Govern.ant's p0sition would be weapon and firear•

inste~d

usea th• "Word "ve.apon."

10

are words of aiailar import.

11

in the count to allow the

12

apecific fire.ara he was cba.r9ed with

13

having properly registered to hi•, that CCu.nt 6 allows

14

him to contest that charQ• properly, and that count 6

1S

will prevent him from being charoed with poaaeaainq and

16

not hevinQ re9istered that same weapon tha t'• char9ed in

17

Count 6 thereby protecting him fro• double jeopardy.

18

Weapon ia apecific e1110U9h

~fand-.nt

to know what

po•••••inQ &Dd not

In Count 6 the Government ref•r• to t ,h e definition

19

ot both ..weapon"'

20

definitions

21

Government COWld

22

and Four-th Circuit case law that saya, plua, if the

23

defendant raises

24

return ot the verdict that thie court •• vell •• the

25

Fourth Circuit will look a t the chall•J\Q• to the count

and "'fir•a.r.. ''

e.r• basieaJ.ly
SC8e

t~

t~

Aqain, I a&1d t ,b.e'

..... and theo the

cue lav -- S'upreae Court caae law

issue to . di••l•• the count at the

Biggs & Fleet Court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 612

215
21

under • llOre libera.l standard. and that•• th• rool•

2

de-c1aion vhich is at 901, P.2d 23, 1990 deci•ion where a

3

cert v•• denied and the Court found the objection va•
made at the return ot the verdict.

Any review tor

'

5

alle9ed defect was to be r eviewed if at all under a

6

liberal atendard and there's the Sutton c••• and t h•

7

Hooker caee here .

8
9

In conclusion, Your Honor, it's vary clear t hat

count 6 de1crib.cl a very specific weapon whether it's • ·

11

vorda that are very sia.ilar a.s to iapor-t u

12

a.td.

1J

l .a wful a earch varre.nt and chat wa..s Governi:;e_nt Exhibit

14

6-1 duri nq the tria.1, the actua.l weapon.

15

Exhibit 9 - 1 was the actual s•arch warrant.

16

tbe Court

'fl\• ve:apon in count. 6 vas se.iz.ed pu.raua.nt to a

GoverNllient

And Mr. Scha ible testified that the weap<>n vaa not

17

properly re9istered to the defendant on February 8th,

18

1995, whlch vas done by the certificate 7 · 4 and then in

19

Government Exhibit 8-1 which was the ATP report that we

20

lntrod~c•d

22

uk the court to deny the defendant's mtion. to d.ia:a.i.ss

23

COwit 6 of the indictat.nt fo.r the reason.a l 've ju.t

24

•tated and the law.

25

•ayinq that the weapon functioned ••

THE OOORT:

Thank you, Miss Al1en. ·

Biqgs & Fle et Court Reporters
Norfolk - ($04) 625-6695

Exhibit A, Pg. 613

216

Hr. Hont•que, do yov want to -2

3
4

KS. ALI.DI:

And then, Your Honor, I'd 1-ike to

addreaa th• Brady isaue bued on -THE COURT:

.....t?

5
6

add.reaa.

1

a
9

MS. ALLEN:

Yea, a ir.

The laat .otion that

Mr . Hiont•9U• filed waa hi• auppleHntal aotion for a nev

10

trial.

W'hat l'd 11Jt. to do for that, Your Honor, is to

11

put on evidence r199ardinq that for the record to protect

12

the record and for that I'll b4 relying on Special Aqent

13

SC:haible.

14

pt.Cket ot ••t•rial which J aent to the court end sent to

15

Mr . Hontaou• •• aoon •• our oftice received i t i s; in

16

fact, Brady material and whether or not --

And the iaaue will

be whether or not the

17

THE COURT:

W
ell, that'• a choice for m.e to make .

18

M ALLEN:
S.

That'• 1 choice f or you to make, Your

19

Honor, but l would like -· J know the Court 's oone

20

through it b\l.t I don"t think t .be record 1-a clear a.s to

21

what the

22

have had on H Schaible'• teatt..ony regarding the
r.

23

~a,pon.a

doc~menta

that

~r•

are and what iq;>act, if •ny, it would

befor. the Court.

24

THE COUltT:

W
ell, brino h.1a on.

25

MS. ALLEM:

Okay.

Thank you, Your Honor.

a Pl. .t Court Reporter&
Norfolk - [phone]

8199•

Exhibit A, Pg. 614

217
23

GABY :sruaierg, a Witn•••· called on behalf of the
2

Govertu1111tnt, bevi"9 be•n firat duly sworn, was •xa.ained

3

and teatified •• follow•:

S

BY MS. ALLEN:

6

Q.

Please atate your full n. . . for the record.

7

A.

Gary Schaible.

8

Q.

And are you tM .... Gary Schaible that

9
10
11

testified before J u • KacXenzie duri.nQ Kr. Leasure•s
tria.17
1\.

Yee, I an.

THE OOURT:

13

15

16
17

·

How do you apell Schaible, I don't have

i t rioht h•~• in front' of ...1

THE COURT:

00 ahead.

SY HS. A
LLEN:
Q.

And, Kr. SChaible, I'm 9oin9 to ask the court

18

security officer to 9ive you what I've marked as

19

GovorntMnt Exhibit 10-1 through 10- 8 and also a copy for

20

the Court and a copy of th••• documents have already

21

been provided to Mr. Montague for Kr. Leaaure•s benefit .

22

Mr. Schaible, if you vould, I'd ••k you to first

23

look at CovernM:nt Ex.hi.bit l0- 1 and J believe that's

24

entitled The Role Call Training.

25

docwnent tMre?

Do you have that

8190'• a Pl. . t Court Reporters
Norfollt - [phone]

Exhibit A, Pg. 615

218
24
A.

Ye•, I do.

Q.

Okay.

And are- you familiar vith that document?

J

A.

Yea, I

&a.

•

Q,

And b•ve you seen it before?

5

A.

Yea, I have.

6

Q.

And have you read it from top to

7

A.

Y••• I have .

8

o.

And if you could now look at Government !:xhibit

9
10
11

10 -2 and I believe that's entitled
THI COURT:

.
16
17

18
19

20

21
22

Well, let's label that.

Ia 10-1 the

Busey ......

K$. ALLEN:

13

botto~?

Th•t's eorrect, th• Role Call Tra.i.ni.oq

ot Mr. Buaey.
TRI COURT:

Busey's statement.

All riqbt.

M ALLEN:
S.

That was 10-1, Your "onor, the next one

Go

11 Government £x.hibit
TH£ COURT:

All ri9ht.

We've 9ot that.

Next.

BY KS. Al.LEN:
Q.

10-2.

And,

Mr.

Schaible, I belt.e ve that i•

entit.l ed Ke.ora.ndWI. dated
A.

~r

lat, 1995.

10-2 is the statement.

23
24

the h.&ndwritten &-worn statement of TOl'll Buaey dated

25

November 30th, 1995; is that correct?
Biggs & Fleet court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 616

219
2S

2

3

Q.

Okay.

And 1£ you could look at Goverf'Ul1.4t.nt

ExhJJ>i t 10- 3.

4

A.

I have it.

s

Q.

And I believe that you have there a memorandum

6

dated December 1st, 1995, and a memorandum dated

7

Oecorober 11th, 1995, and an incident report concerning

8

the ATF internal investigation of Mr . Busey's statement;

9

is that correct?

10
11

Q. . And if you can look at Government E>Ulibit 10-4 ,

12

I believ• that tho•• arc minute$ of a moetin9 hold on

13

November 9 through 10, 1994, to address

14

explosives date of inte9ration ; is that correct?

fir~arm$

and

lS

A.

Ye.s.

16

Q.

And i f you could look at Government Exhibit

17

10 -5, I believe that's a

18

and supporting material constituting the report of the

19

recent audit of the NPA data base; is that correct?

meDIO

dated February 9th, 1996,

20

A.

Yes, it is.

21

Q.

And if you can look at Government Exhibit 10-6,

22

I believe that's a memo dated April 30th, 1991,

23

concerning the accuracy of the NFRTR; is that correct?

24
25

Q.

And Goverrunent Exhibit 10-1 is a memo -- a
Biggs & Fleet Court Reporters
~orfolk

- [phone]

Exhibit A, Pg. 617

,
220
26

correaponde:n.c:e, excu•• ... between Senator• McClure,

4

accuracy of tM H.P'RTR, correct?
A.

5
6

Okay.

actua1-ly.
Q.

Okay.

A.

7

9

The firat letter ia OCtober 15th, 1979,

And

there'• -- I can't read the date on the

last one, it aaya January 1910 but I can't read the

,,

Q.

Okay.

And then Government Exhibit 10-8, the

12

last exhibit that'• Lhere, it'• a two-pa9e affidavit ot

13

Gary Schaible dated February 13th, 1996.

14

A.

Correct, yea.

15

Q.

And, Hr. SC:haible, ia it fair that you have

16

familia.rized youraelf with the total contents of

17

Government Exhibi t • 10 -1 throuoh 10-8?

18

A.

Yea.

19

Q.

The firat queation J have for you, air , is this

20

the tirat time in preparation for this hearing today

21

that you have reviewed thoae materials that are before

22

you?

23

A.

No.

24

Q.

Wh•n did you firat r•viev th&t packet that's in

2S

total there before you. wh•t .c:>nth and year?
Bi99a 4 Pl. .t Court Reporters

Mor!olk - 11041 625-6695

Exhibit A, Pg. 618

221

27

A.

2

packet.

3

Q.

It v•• in late February 1996 for the totel

4

s

And do you know the tacts -.nd circu.•tances ••

to how you got possession of that packet o•n•r•lly?
A.

Ye1, 1 received a copy of what the U.S.

6

Attorney•'• Office sent out, I mean, Ju•tice ••nt

7

t ho u.s.

8

9

Q.

~tto~n•y '$

Okay.

~ut

to

Office.

And is it fair to say that that packet

of inforaation specifically Governa.nt l:&hibit 10- 2

10

thr0U9h 10·8, vas the re$\llt of an int•rn.1 audit that

11

waa doM after Mr. Busey aade his etat . . .ntl which are

12

in Oovernmient 1Xh1b1t 10- 1?

13

Q.

Ia it also fair to say, sir, baaed upon your

15

knowledQ• of the exhibits here that Government £xl\ibit

16

10·1 throu9h 10-8 once they were compiled by the

17

internal audit were subs•quently sent by DOJ to the

18

re1pective U.S. Attorney's Offices acroaa the country?

19

20

A. Y••·
o. And 1•

it Also fair to say, air, that in late

21

February or early Karch one• l r.e•ived this packet. I

22

called you and asked you if you knew about tb• packet?

23

25

A.

Ye•. you did.

obviously, the Department of Justice knew about all of
Biggs & Pleet Court Reporters
Norfolk - [phone]

Exhibit A, Pg. 619

28

this aa.terial, Kr. Schaible.
2

THE wtTNESS:

3

THI CCIORT:

Tr-aini.oo

At what ti... eir?
W
ell, froca -- the letter of the ¥_ole

'

4

Call

Stat. . .nt va• 10- 2 vaa • atat . . .nt 90tten

5

from Mr. BUaey oo O.Cearber the lat, 1995, ao they knew

6

a.bOut it at tbat tlM, the probl- h&d a.rt.en by virtue

7

of b.is atatea.nt.
TK£ W
ITNESS:

9

10
11

TU OOORT:

Yea.

All ri9ht.

BY MS. ALLEN:

Q.

Aqent Schaible, you are a part of this peek.et

12

that's be.en aent out acroaa the country in Goverrunent

13

Exhibit 10- 8.

14

affidavit and vhat , in eaaence, vae the gist of your

15

affidavit?

16

A.

Why were you a1ked to submit that

I waa aaked to 1ubmit it because I was

17

basically the aenior peraon in the NFA Branch, had been

18

around the lonoeat, and waa more fa•iliar with the

19

proced:una and op41rationa of the braneh.

20

was that what Mr. Buaey had aaid waa , you know,

21

exa99eratinq th• eituation, you know, that the problem..s

22

that he ••id were there weren't th.ere .

The gist of it

23

Q.

And who wa• i t that aaked you to review th•••

2S

A.

our office ol

ch~•f

counsel.

Bi99a & Pl. . t COurt Reporters
Norfoll< - (804) 62S-669S

Exhibit A, Pg. 620

223
29

Q.

So would it be your te•tia::iiny th•t that packet

2

•• bu been provided to the Court and to Hr . Montague

3

vu not in existence when you testilied durino

4

Mr. IAaaure'a trial ?

5

A.

No, it wasn't.

6

THE COURT:

Say that

a9~in.

Did you aay that this

7

Jll,lterial wasn't av&i.lable before Mr. Leaaure'• trial

8

which waa in --

9

NS. ALLEN:

.January.

10

THC COURT:

January 18th and 19th bu.t the

12

THI W
ITNESS:

Well, yeah.

Th• packet -- the total

There "'9re bita and pi.cea.

13

packet vaan't in existence.

14

Y••· but it hadn't been put toqether.

15

lookino at -- seeing what exactly the imPort of this

16

..,,••.

17

BY MS. ALLl.N:

18

Q.

19

They were atlll

NO'tlil', when you testified during the trial, your

teati•ony dealt with Counts 2 through 6 of the

21

A.

Yea.

22

Q.

And when you testified rega.rdiDO"

Count 2 of tM

24

IXhJ.bit 7-1 which is the certificate ot nonregiatration

25

re4;1arding the weapons, is that true?

Bi99s & Fleet Court Reporter•
Norfolk - (804) 625- 6695

•7-740 91 - 1

Exhibit A, Pg. 621

224
30
A.

2

Yes.

o.

Is there anythin9 based on your review of the
thr ou9~

3

evidence that's in Government Exhibit 10-1

10-8

4

that would cause you to change your testimony r egarding

S

the fact that the silencers liste d in Count 2 were not

6

properly registered to Mr. Leasure?

7

A.

No, it wouldn't change ray opinion .

8

Q.

l s there any -- I believe during the t r ial you
0

9

also testified rec;ardinq count 3 of the indictmen t in

10

Government Exhibit 7-2 the certificate that Qoes with

11

that; i# that correct?

12

A.

Yes.

13

o:

Is there anything i n your review of Government

14

Exhibit 10-1 through 10-8 that would cause you to change

15

enythin9 that you testified to durin9 Mr. Leasure's

16

trial rieqardinq count 3 in Govel'f'UM;nt Exhibit 7- 2?

17

A.

No.

18

Q.

And, lastly, Count 6 of t he i ndictment and the

19

corr esponding Government Exhibit 7-5, i s the r e anything

20

i n your review of the exhibit$ in the 10 series that

21

would ehano• your testimony re9arding Count 6 of

22

Government Exhibit 7-5?

23

A.

No .

24

Q.

Is there anything that you have seen either in

25

Mr. Busey's statements or in Government Exhibit 10- 1
Biggs & Pleet Court Reporte.rs

Norfolk - (804) 62S·6695

Exhibit A, Pg. 622

225
31

2

3
.f

5

object.

TKB COURT:

Go

on and ask the queation• prope'r.

BY M . ALLEN:
S

Q.

Mr. Schaible, i .s there anything in the

6

Government's 10-1 through 10- 8 series that you would

7

con•ider material, important information that you needed

8

in order to do your certificates that were in the

9

Ooverrwent 7 series?

10

A.

No.

11

Q.

All right. .

Mr .

Schaible, I'• nov ooinc, to ask

12

you. to look at Government Exhibit 11-1 which I'• hand.in;

13

to th• court security officer.

14

TK! COURT:

What is 11-1 in view of th• !act that I

15

mu•t have left that packet on my desk?

16

BY MS. ALL!N:

17

Q.

I s that entitled telephone records o!

18

Hr. Leaaure, Sprint Services Account re9arding activity

19

takin9 place on March 16, 1993 ?

20

A.

Yes, well, it says OJW Advantage Quality

21

Account, vhicb I guess is what I think you're saying

22

tb•t:•·

23

O.

Okay.

And have you aeen th•t docw:Nnt before?

24

A.

Yes, I have.

25

Q.

And I t..lieve that counsel ref•rred to the fact ·
Biggs & Ple et Court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 623

226
32

2

there are two faxed t i • • totaliDQ 24 ainutea where

3

doeu.ent.a were aent to the BATP; ia that correct?

•

A.

Yea, it ia •

5

o.

Okay.

And ba.aed on that doc:\ment t.he.re, is

6

t.here anythiDQ that that doc:\me.nt tells you that would

7

cause you to chanqe any of your te•ti.mlony reqarding

a

Count• 2, 3, or 6 of th.ti ind.ict.aent?

9

10
11

o.

Doea that docW111ent there tell you what

dOC\.\91enta were faxed if at all to the BATF?
No, it doe1n't.

12

A.

13

MS. ALLEN:

Your Honor, I'd move for the admission

1C

of Goverrunent Exhibit• 10·1 throu9h 10-8 and Government

15

Exhibit 11 •1,

16

THE COURT:

To be received.

17

HS. ALL&N:

Your Honor, that'• ell the questions I

1&
19

have r.gardinQ thia 1aaue.
THE COURT:

Croa1-•x...,.ine.

20
21
22

CROSS·EXAMINATIOM
BY MR. MONTAGUE:

Q.

l ••id Buaey, hov doea the aaan pronounce his

23

n&M?

24

aine ai.a pronounced all •Y life, you prot>.bly have too.

25

A.

I hate people wbo aiaprooowice naaea.

Yea.

It~.

I've had

BU••Y·

Plfft COUrt Reporters
Mor!olk - (8041 625-6695

8199• '

Exhibit A, Pg. 624

33
1

Q.

Buaey with a 10119 O, all r19ht, thank

yo~.

2

Now, at the tt.e of this extraordi.nary Role Call

3

Stat... nt by M:r. Busey, he was then tbe chief of the NPA

•

Branch?

s

A.

Yea, he was.

6

Q.

He was the t op man i n that part ot your

7

or;anisation?

8

A.

9

THE COURT:

10
11

Yea.

Chief of vbat, you aay?
The MFA Branch, Hatio~l Pirearas

'nlZ W
JTtl&SS:

Branch.

Tffg

COURT:

The National -- NAY --

THE WlTKESS:

TRI COURT':

is
16
17
18

19

KPA.
Excuse me, National Fireanaa Branch,

what ia that?

THE WITNESS:

re9iatration r e cor ds and transfer s.

THE COURT:

tte was the chief of the National

Fireanu

20

Tim WITHE.SS:

21

THE COURT:

22

'ftlZ

25

Branch, yes, sir.
Registration branch.

VlTtfESS:

THB OOORT:
24

W i r• the ones who maintain Lhe
e

Yes.
Go ahead.

BY Nit. MONTAGUE:

Q.

And after he aade that state... nt, wha t ha~ned

Biggs & Pleet Court Reporter•

Norfolk - [phone]

Exhibit A, Pg. 625

228
34
to Kr. Bu.aey'?
A.

3

•
5

in

Did he 9et fired or tranaferred.?

He requested reassiqnment to anot.he.r po•ition

Jan>Ury.
Q.

w
...

that a coerced requeat •• tar •• you know,

Mr. Schaible?

6

A.

7

Q.

tor it

••.Y up.

8
9

No. he w•nt down a .nd '9.aked

or I should

W
ell. there was considerable bullaba.loo arou.:nd

the agency, va.s there not ... •

10

A.

y._._

II

Q.

-- h.aviag the chief in cha.roe of t.M

12

reqiatration of fi..rearas .say1.nq there vu • 50 percent

A.

Yes.

IS

o.

You say that that testimony i• not corr ect ?

16

A.

Well, the

17

so

percent error rate I eaid th~t we

have no idea how it was determi ned.

18

o.

weren 't you working on it?

19

A.

No.

20

Q.

You were the &.enior man in. th• bruc:b &nd you

2t

weren't workinq on it?

Q.

24

Did you check on how it vu arrived at?

Did

you ta.lk. to the people who were involved?
A.

It was done at the requeat of our former
Biggs 6 Pleet Court Reporter•
N
orfolk - (804) 625-669S

Exhibit A, Pg. 626

229
35
division chi ef.

He said that he did not know exactly

2

what was done to come up with this although he had the

3

figu~es

•

Q.

himself.

But whether it was right o r wronq, you

5

instituted a number of changes in the way you did that

6

part of your busine ss, d idn't you?

7

A.

Yes.

8

Q.

That also appears in your affidavit .

9

A.

Yes.

10

Q.

Now, when Ms . All en sent me he r copy of

11

Mr. Busey's statement , the Role Call transcript, do you

12

ha~e

13

i nstead o f the whole 22 pages?

any idea why she only sent the first 15 pages

14

A.

No, I don't.

15

Q.

Did you have anything to do with f urnishing her

16

with that transcript?

17

A.

No, sir, I d i dn't.

18

Q.

Do

19

A.

came out of main Justice, that's my

20

you know who did?

understanding.

21

Q.

Came out of the justice department?

22

A.

Yes.

23

Q.

I'm not sure about the organic structur.; do

24

YO\l have people 1n the Jo.S tice oopart-n:.ent assi gned to

25

the ATF as your l awyers or do you have your own lawyers?
Biggs & Pleet Court Report ers

Norfolk - (804) 625- 6695

Exhibit A, Pg. 627

230

36

A. · Ve live our own lawyers.
2

Q.

But they interact wit.h the Juatice Department?

3

A.

Ye.a, air.

•

Q.

Nov, all of these •• when waa Mr. Bu••Y'•

6

A.

Janua.ry of '96 .

7

Q.

And he had made this statement aONwher·• around

8

the end of October of '95, somethin9 like that, middle

9

of October?

10

A.

1 believe it was -- I t.h.i.nk,

Oct~r

18th. l'•

11

not quite au.re of tM uect dat.e , certainly would have

12

bffn--Octol>ar.

..
13

15

16

Q.

A.

ot

Where did he qo?

8• is a specialist in the W
in• and Beer Branch

ATr.
TH~ COUR~:

It says that the Role Call Training

17

Sea11ona were conducted by BU$•Y· Chief ot the National

18

Pirearlt.8 Act Branch in the period between October 3, '95

19

to October 10, '95 at BATP headquarter• and recorded and

20

tra.nanJ.tted throuqb headquarters on cl?a-4 circuit

21

televiaion.

22

Kr. khai.blo?

23
24
25

That letter is correct, ian't it,

THE WITN£SS:

That's correct.

There wa• only one

••••ion.
TH! COURT:

Well. sonet ifl'l4; tatween October 3 and

Bi99s A Fleet Court Reporters
Norfolk - [phone]

Exhibit A, Pg. 628

231.
J7

2

90 &hood.

3

BY KR,, MONTAGUE:

•

Q.

waa any intennodiate administrative •otion

S

taken with regard to was Mr. Busey put on •dlniniatrative

6

l•ave or anything like that?

7

A.

No, •ir, not that I know of.

8

Q.

And the closed circuit televieion t h• Judqe

9
10
11

12

referr.cl to, did that result in a V.;R tape of th•
affair, Mr. Buaey's stateaent?
A.

The tape was beinq done 1-r-re;ardl••• of its

tranaaiaa1on t.hrouqhout the build..inq.

15
16

o.

That there was a t•pe?

A.

13

Yea.

o.

But also a closed circuit tran•miaaion within

your offices?

A.
18

Yea.

o.

Okay.

And then were you aware of •• .,.11,

19

.xcu•• ...

20

Mr . eu1ey left, was be replaced?

21

chief of the KPA Division?

Let .e ask a different question.

A.

ls there nov a new

Yea, there is.

Q.

After

MFA Branch.

24

THE COURT:

That's you, isn't 1t?

25

THE W
ITNESS:

No .

Bi ggs & Fleet court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 629

•1
232
38
BY Kit. MONl'AGOE:

2

o.

Who is it?

3

A.

A lady n&raed Nerid& Levine.

•

Q.

Ia •h• son.one who ha$ been with the ATF f or a

s
6

10119 tiJM?

A.

I bctli•v• 1he started in '85 -- '86 eom.ewhe re

'

a.round there.

9

Allen ju.st oow wu

8

10

Q.

Okay .

Now, your testimony 1.n re•pon.se to Kiss

that these exhibit• 10·1 throUQh 10-8

didn't u.ist at tbe tiae of tbU tria,l ?
A.

No, i t va.s that the packet -- the utire packet:

13

Q.

What entire paeket?

14

M ALLEN:
S.

11
12

Your Honor, 1 t ,hink couneel ia

15

miaatatinc;1 the e vidence.

16

packet of material existed at the time of trial since

17

there'• been an a l l ega t i on t hat the Government and

18

Mr. Schaible knew about a l l of this during the trial .

19
20
21

THI CXlURT:

I as ked him whetbe..r or not the

The statement Mr. Busey . .de on

December 1st, 1995, that was cert,a inly in ez.iatenc:e.

MS. ALL£N:

In exis tence,

Your Honor, but 1 think

22

I

the! all99ation wu that we knew th&t it wu there duri..Dq

23

tbe tri.al and we withheld favorable evic.t.nce and that

2t

v aa not done.

25

HR. Jr«>NTAGUE :

I didn't make that ell99etion

Bi99s & Fle•t Court Repcrtera
Nor£olk - [phone]

Exhibit A, Pg. 630

39

bec:auae J have no way of knowinO._
TKZ COURT:

3

You would want me to u•umie that,

wouldn't you, M . Montague?
r

•

MR. MONTAGUE:

Well, t eertai.nly believe it ' •

S

within the breast of th• Goverruoent an4 I realize thot's

6

o very laroe breast but i t ' s the Justice Department and

7

th•

8
9

10

THE COURT:

.,

W
ell, l et's move on.

BY MR. MONT AGUE :

Q.

Nov

in fact. Kr. schaible, there wa• a atrono

11

effort within the ATP to cover up this whole affair, was

12

tbere not?
A.

Mo.

Q.

There was no effort to cover up thia affair?

15

A.

Ho.

16

Q.

When was the statement by M . Buaey made
r

11

public?

18

A.

I believe in February .

19

Q.

~nd

20

A.

Hot quite sure on that .

21

Q.

But. five month.$ after the event?

22

A.

Uh·h.,l>.

23

Q.

If thet was not the resul.t of a cover up, what

13

24
25

of February or early M
arch, rioht?

waa it a result of?
A.

Preedom of Information Act requaat.
Biggs & Fleet court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 631

40
Q.

ot..y.

So tbe .-g.acy did ooUUJ:wg t o put this

2

thJ.09 out voluntarily; it had to be taken away froD. you

3

by an rot req\lest?

4

A.

Yea.

s

o.

And then all of this other atuff, yoi.&r

6

affidavit, and all of these things about t ,h e cbanqes

7

that have been ma.de since th•n ware dona after that,

a

ware they not?

10

o.

So in a.n.swer to the Judge'• question., did this

11

stuff u:iat at the t.i.-e of trial, ob..-iCNaly it

12

potentially all e.x1$ted7

13

A.

SOCM of it .

Q.

But si;;iply va.s not beinq put t09atbar because

16

out publicly.

"

A.

Certainly, some of it exi.atad .

Q.

What is the policy of the ATP regard.in;

18

19

20

atat..,.nta

by

the top officials?

KS. AU.IN:

Your Honor, l'• golnv t o object bued
I think the focus of thie bearinq should

21

on rele-vanee.

22

be whether or not the.re's any Brady utarial that if

23

released. during the trial would tend to aat&blisb that

24

Hr. Leasure is quilty or innocent and nov we'r• puttinq

25

BATP on trial .

Bi99s & Fleet Court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 632

235

THE COURT:

I think it qoes further than that. not
~nnocent

2

wbeth•r he wou.1-d be found quilty or

3

th4U'•'• a.n obligation for that aateriel to have been

4

evailable to defense counsel to try to convince

S

BATP were rotten record.keepers; I think that'• the issue

6

not hie quilt.

7

Your exception is in the record.

8

BY MR. HOlftAQJE:
Q.

9

but whether

that

aie

Anyway, your ob,ection i• overruled.

Lot'• move on.

Let's drop down to the 2xhi.bit that I

10

•u.t:.itt..S.

I th.ink it 's Government 11 · 1 which ia the

11

telephone record of Mr. Leasure'• Saluda office.

12

record itself shows that the phone number 1U-ed for b.is

13

fax~

14

. .chine.

1s

correct?

The

. .ehina obviously is the phone nwaber of hie fax

Ia the phone number for your fax raachtne

16

A.

Yea.

17

Q.

20 2 number?

18

A.

(Witness nods head.)

19

o.

Okay.

So would you aor•• with

~

that when a

20

phone bill i• produced that shows a completed fax

21

tranaaieeion, that faxes actually have arrived et their

22

ct.atinat1on?

23

24

2S

Q.
~nov•

So the faxes got to your office and no one

what happened after that?
Biggs & Fleet Court Reporters

Norfolk - (804) 6ZS-669S

Exhibit A, Pg. 633

•2
J wouldn't say that.

A.

2

C.rta.i.nly fax•• "9re

••nt, what they vere I can't kn0\11.
Well, we can't prove what they wr. either but

Q.

3
4

it atanda to reason they're what we said they were.

S

whether t hey were or not, they

6

perc•nt error plaque of BATF's record.keepino at that

7

ti••·

8

would have been in existenc• in February of 1994, would

9

it not?

10

A.

I don't know what he based the SO percent on.

11

o.

Mr. SC.haible, there wa.s a ee.riou.• probl. .,

dis~ppeared

But

into the SO

And the SO percent Hr. Busey waa talkino about

12

waan't there, whether it vas SO

13

80 percent. you-all took substantial action to correct

14

the ••rioua defect in your reeordkeepinq ay1tem, didn't

15

you?

~rcut

or 35 percent or

16

A.

I believe that any problem is eerioua , yea.

17

Q.

Yes,' s i r, part i cularly in a fi•ld like this.

18

A.

Yea.

19

Q.

Do you have -- have you ha.d oecaeion• that

20

you're avare of in the NPA branch of clerk• throwinq

21

away tran•aission.s beeaU.&e they don't want to fool vit.h

22

th. .?

A.

Q.
25

Yes.
And so that's one of the thin;• th•t could

happen to you?

BiQOS & Fl. . t Court Reporter•
. Norfolk - (804 ) 625·6695

Exhibit A, Pg. 634

237
43

2

Q.

A bunch of tranaai••ion.a co.. thro'U¢ froa

3

Saluda, Vir9inia, and th• clerk ••Y•· this i• 001f;o in

•

Fi.le 13?

s

A.

Yea.

1

A.

Ye•.

8

Q.

AM people have C..n tr4ft.llferred and fired as a

6

9
10

,,

12
13

result of that, haven't they?
A.

Ho.

be.en transferred out of that work?

A.

Th• only aituation t can re•om.bcr 11, no, that

14

they weren't tran•ferred.

15

eventually quit, yea, but, no, nothing like transferred

16

or fired.

17

o.

No, they weren't fired.

They.

Did you ever continue anybody in that

18

particular job ofter you knew they threw something away,

19

threw an Jmportant tranamiaaion away or destroyed it or

20

put it in th• ahredder or whatever they did?

21

A.

And when you say ••you,•• you r.ean, the branch?

22

Q.

l ....an you the aqency, l'• sorry.

23

A.

Yea.

Q.

You conti nued th. . doi ng that kind of work?

A.

W th .onitorin;, Y••·
i

25

Bi90a ' Pl. .t Court Reporters
Norfolk - 1804 ) 625-669S

Exhibit A, Pg. 635

238

1

o.

2

HR. NONTAGU2:

.3

()Uy.
l be1ieve that's all I have, Your

Honor.

•

THE COURT:

Anything further, Ka. Allen?

s

MS. ALLEN:

No thank you. Your Honor.

6

THE COURT:

All right.

7

HS.

Your Honor, that'• all th• evidence I

8
9
10
11

ALL!:N:

Step down, Hr. Schaible.

have to that last motion.
THE comtT:

AJ.l right.

that record has been iaade .

HR. HOffl'AGO'B:

Al.l ri9ht.

The evidence

Anything you want to ......

l ju.st have a couple of com.ents

12

wit.b r99ard to the first part of Ma. Allen'• ~ts.

13

ln the fir•t place, l don't know what the illplication

14

we• about fraud on the Court and fraudulent material but

15

I don't practice that kind of law and the doc:u. . nta were

16

9enuine as far as I know and I hav• every reaaon to

17

think they were.

18

think they were received by the ATP baaed on th•

19

teati110ny W9've just b-.d.

20

TH:! COURT:

I also think we have every rea •on to

I don't think there'• any evidence of

21

that, Mr. Mont.ague, that these particular tbini;• Nrked

22

void or received are beeau..s. you point out Carl O'Qu.inn

23

or Kr. L•••ure called t:his telephone number on a certain

24

date.

25

difference in this c.a se.

But I don't think it's 901-nq to . .k• any

Bioos • Fleet court Reporter•
N
orfolk - (804) 62S-669S

Exhibit A, Pg. 636

239
45
1'• 90109 to throw out the convict..ion8 that have to
2

do vitb reQi•t-rations .

J

3, and 6 •o that the only count left i• Count 1, tj\at's

4

the one I want to hear addressed at t~i• time.

5

9ot nothing to do with r egist rations,

6

about •ilencers .
HR. MONTAGUE:

7

8
9

10
11

r

I'a qoi.nq to throw out C»\mt 2,

Ye$ , sir.

That's

w'r• talki.ng

A11 ri9bt, thank you for

that.
Tff%

COURT:

T'he motiori fo.r a new tri.al i• denied

le.au•• it was addressed only to Count• 2, 3, and 6.

Tl

have thrown out Count 2,. 3, and 6, ao the motion for a
We'~

12

new t.ri&l i .a denied.

13

COu.nt

1•

your client about how you wa.nt to proceed on Count

15

I'll take a five-minute recess.

1.

And now,

16

MR. MONTAGUE:

17

THE COURT:

here for ae..oteocinQ . . to

it you want to sit down

and tal.k to
l and

Thank you, Your Honor.

Ms. Allen, t his isn't

to

impune

18

anythi.nq dishonest from you.

19

whatever you've received. but Mr. Schaible ha• testified

20

that they knew all about Kr. Busey•• •tat..ent in the

21

National Firearms people.

22

thti bW.ldinq# it was in the files of the Departaent of

23

Ju.etic.e. and it throws a di.s aqreeable propo•ition on llY

24

findino somebody guilty on records wh•n their chief aan

25

••Y• they were 49 percent wro09.

I think you sent to them

tt•s on televieion all over

That'• not your fault.

Riggs & Fle•t court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 637

240
46

Five minutea and we'll take up sentencin9 on Count
And J '11 have a01Mt.hJ.nq a.ore to say for the record

2

1.

3

so you-all can have it for appellate purposes but

•

now t.bat' 1 where we

~iqht

&r• •

5

CReeeaa.)

THE COURT:

6

Hold up a ainute.

It . . . . . to •

lAt . . .ake soae

1

not••-

that the court ha vino thrown out

8

Counts 2, 3, 4, S and 6 the only thin; left is Count 1

9

of vhicb I found that• a the 11.-le.ncer1 count which has

10

notb.iDQ to do vith r90iatration .

11

nonreqiatration that'• the e11ence of the case

12

was no motion, I don't believe, made with reference to

13

Count 1, Hr. Montaque, but in the wealth o f paper

14

you-all have provided rae with I raay have overlooked

15

aomethino .

16

thi$ point; ia that correct?

18

There '

We' re hare only on aentencino of Count 1 at

MR. MONTAGUE:

17

In fact, it's

Well, l intended to include -- it ;s

certainly an entirely different animal .

19

20

now.

Brino Mr. Lea1ure up to the lectern with you.

21

KR. MONTAGUE:

22

THE COURT:

All right, 1ir.

Mr. Lea1ure, the ••tter ended in a

23

conviction of you on COunt l on. l think it vas January

24

tb4; 19th. but 10

25

in

t~t

it. let . . be sure.

the record won't have any errors
On January the 19th the aatter

Bioo• • Pl. . t Court Reporters
llOrfolJt - (80•) 625-6695

Exhibit A, Pg. 638

241
47
vu ta.ken under •dvise.ment.
2

On February 6th an order vas entered in vhicb I

3

brou;ht ell parties back t o court and filed a WTitten

4

order of the Court finding you guilty •• to Count

S

•• to some other counts which are now made iaoot by

6

virtue of the ru1i ngs of the court.

8

here tor aentencin; for 9:30 on May 2\, which is today.

t

and

I at that time

9

l have a presentence r eport prepared by my

10

probation officer Miss Thayer over here and J a•k you

11

firat, Kr. Moat.ague, have you been over thi• report in

1Z

deta1} with yo\U' client, Kr. John 1..e. .u.re?

13

KR.. t«>MTAGOB:

Yes, sir, I have.

14

1S

thil report in detail with your attorney,

16

THB DEFENDANT:

17

THE COURT:

M~.

Montague?

Yes, sir , I hava.

And we ' re here only on count 1.

18

Mr. Montaque, is t he r e any evidence you want to present

19

with reference to this count?

20

HR. HONTAGUE:

Not witb reference to the count as

21

such but t'd l~ke to put on some character evidence, if

22

I INY·

23

TKI COURT:

2•

I'll be 9lad to bear the first vit~a. if yoU•ll

25

All rioht. sir.

Have a aeat.

call your fir1t witness .

Biogs & Fleet Court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 639

<8

2

Jon••·
THI COURT:

3
4

Have a seat.

All right, •ir, go

~ight

ahead.
1,gw1a

5

JONE~

111, a W tness, cal led on behalf of
i

6

the Defendant , hev!ng been f i rst dul y sworn, waa

1

exa~ined

and testified as follows:

8
9

DIREC? EXAMINATION

er

HR. MONTAOUE:

10

Q.

11

seated.

12

A.

13

THI <X>URT:

,.
15

w
ould you state your -- let me let you 99t

W
ill you state your full o. . ., plea••·
Levi• Jones, III.
Lewis spellftd L-e- or L-o-?

THE W
ITNESS:

THE COURT:

16

L-e-w- i - s Jones, III.

00 ahead,

M Hontaoue.
r:

17

L·e-.

8Y MR. MONTAGUE:

18

o.

Ho" •re you currently employed, Mr.

19

A.

1'0> the

20

o.

llow long have you held that office?

21

A.

l'a in ay ninth year.

o.

And prior to being --

23

J'one1?

sheriff of Middlesex County, Virointa.

t~t's ~

elective

office, ia it not?

24

A.

Yea, sir , it i s.

25

Q.

Prior to being elected. sheriff of Middlesex ,
Biggs & Pleet court Reporter•
N rfolk - (804 ) 625· 6695
o

Exhibit A, Pg. 640

did you have any otb4tr back9rou:nd in law enforcement?

z

A.

Yea, air.

J wu • Vir¢.M .a 1ta te trooper f or

3

ai.x and a half yeara and alao vith tb• City of

'

Cbarlott••ville, YirqinJ.a Police Oepart. .nt

5

three- and- a-half yea.re .

6
1

Q.

Ouri.n9 you.r time u

a •tat• trooper, we.re you

at.a tioned iD tM Kidd.lesex County area?

8

9
10

1910 .

o.

All riqbt, air.

How, vould it

~

fair to

11

d••cribe your poaition of sheriff of M
iddlesex

12

chief local lav

•~forc. . .nt

a.&

the

officer in that area?

13

A.

Yea, air, tha t '• correct, I aa.

14

Q.

W
ould it be f a ir to say tha t aa sher iff -- as

15

the chief local law enforcem
ent officer , it's important

16

for you to know - to be blunt - who the qood quys and

17

the bad quya are that frequent your county?

18

THE COURT:

M Hontaoua, you've practiced law as
r.

19

long aa 1 have and v a'r• t alkinq about character

21

let'• 9et into it ; let'• don't

22
23
24

25

KR. HOtlTAGUE:

o•t

into anything else.

All riqht, s i r.

BY KR. HOllTAGUlt:
Q.

But it 1• neceaaary for you to evaluate people

that aay ru.n afoul of the lav?

81999 6 rl . .t CO\lrt Reporter•
Morfol k • (804) 6ZS·669S

Exhibit A, Pg. 641

so
A.

2

3

Yea, air.

o.

And in your office as sheriff, did

you become

acquainted with a qentleman nalllled, John Leaaure?
A.

Ye•, &ir, I did.

5

Q.

And is he in the courtroom today?

6

A.

Yea, sir, he is.

7

Q.

Would you point him out?

8

11.

(Indieating.)

9

Q.

10

table.

I I

County?

12

A.

You're 1ndieatin9 Mr. Lea.sure at the Defenae

And vhat va.s Mr. Leasure'& bu•ineaa in Middle.sex

My

first eDCOu.nter v ith hia in a buaineN v aa

13

vith a JN.rt• atore with his brother and then later a.s a

14

retail oun dealer and then with his curr·e nt buain•••

15

atatua.

16

Q.

17

Did he operate a businesa called John's Gun

Shop in Saluda?

18

A.

Yea, sir, he did.

19

Q.

All right.

20

Did you coi.e to develop a

relaticnahip or friend.ship with Mr. Leaau.r.?

21
22

THB COURT:

What we're interested in, Kr. Jones, ia

23

do you know hi• reputation

24

tor truth and voracity

in the

comnwunity?

25

THE WITNESS:

Yes. sir, J do.

Bigqs & Fleet Court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 642

51

nm

6

7
8

John enjoys a very 9'0Qd. character and

standinQ in the COSl'UllUnity .

THE COURT:

4

5

And what Ls it?

TBS WITNESS:

2

3

CXXJRT:

can

All right.

That's about a.a far •• you

;0 Hr. M
ontaque .
1

MR. MONTAGUE:

Well, let me try one other atep,

Your Honor.
I'll be glad to stop you if you'r'e

THI COURT:

10
11

12

BY Nit. IClftAOUZ:
Q.

In connection vitb that r·e putation, did you

13

have occaaion t.o appoint hira a.a anythinQ in your

14

depart.ant?

15

A.

Y••· air.

February of 1988 I appointed

16

M Leaaure a deputy sheriff of M
r.
iddleaex county

17

Sheritf 1 1 Office.
And what were his duties, if any, with your

18

Q.

20

TH.I COURT:

That's of no importance to • ·

Re aaid

21

he baa a oood reputation for truth and voracity a.nd I

22

let you ahow that be appointed bi.a u

23

1918.

deputy abuif f in

Row long did he act?

24

THI WITNESS:

25

THE COURT:

Through Ha.l"Ch of 1990.
For a couple of yeara?

Big9s & rl•et court Reporter•
Norfolk • [phone]

Exhibit A, Pg. 643

52

2

1111 COURT:

3

THI WITNESS:

4

Tff.! COURT:

S

6

A year and a half?

Yes , s i r .
All righ t now.

BY MR. M TA
ON GUE :

Q.

Sher iff Jone $, you' re here by your own

?

volition, you're not her• by reason of

8

that correct.?

9

A.

Q

subpoene; is

That is correct.

10

HR. MONTACOE::

11

~

CXXJRT:

Any questions. Ms. All en?

12

MS. ALU™:

No questions. Your Honor.

13

THE COURT:

Thank you, Sheriff, a t ep down.

14
IS

16

Answer Kiss Allen.

Any

reaaon why Sheriff Jones can't ti. excu•ed7

MR. HOHTAGUE:

He can return to hie dutiee as far

•• wo'r• concerned wi t h our thanks.

17

THB COURT:

Call your next wi tneaa.

18

MR. MONTAGUE :

I'm going to call Mr. Leaaure.

20

HR. MONTAGUE:

He's not been aworn yet.

21

TH£ COURT:

22

.JQHM Q LMSURE

19

Go ahe ad, sir

the O.feodant, call ed on behalf of

23

the O.fenae, havi D9 been first duly aworn, vaa e.xaained

24

and te1tified as follows:

25

DI RECT EXAMlNATION

BiQQ$ & Fl ee t Court Reporter•
Norfo1k - (804) 625 · 6695

Exhibit A, Pg. 644

247
53

BY Mlt. tQl'TAQUE:
2

Q.

State your name plea.se, air.

3

A.

John Daniel Leasure.

4

o.

And you a.re the defendant in

5

A.

Ye•.

6

Q.

Mr. Leasure, during your trial i ,n th,i • caae, I

tau.

caH'l

1

ahoved one of the Government witnease•, I think it was

8

Mr. Schaible, • copy of this book.

9

entitled Federal Pirea.ras

R~ation

It'• a red cover
1918-89.

My

10

queation, air, is, va.s this book provided to you by the

11

ATP •• your guide to the law a.ffect inq your vork. •• •

12

fire&ras aanutacture.r7
A.

Yea, it wu .

o.

13

And the e.nswer given to me by whoeiver i t wu

15

that teatified froa the ATP was that you Ye.r9 told th.at

16

by followino this book you would atay out of trouble,

17

thia woa your bible, what you had to do aa a firearms

18

in relation to federal fireat"laS purchase•?

19

A.

(W
itness nods head. )

20

Q.

Nov, in connection with that, did you have an

21

u.nderalandinog a.s to what your obllg&tioa baaed on the

22

MteriU appeari..ng in tb..1-s -.nu.al -- vba.t

24

aanufacturer'• naaes on silencer.?

25

A.

yo\lr

Yea, I did.

8i99s & Fleet Court Reporter•
Norfolk - (804) 625· 6695

Exhibit A, Pg. 645

KS. ALL.Di:

2

THI COURT:

W•

,,.nt throuob - -

3

Your Honor. I'• 9oi.nq to object.

4

t~

a.od

that'• all.

MR . MONTAGUE :

5

6

It's alr eady in the record one

Count 1 involves 19 unaerialized

1ilenc:era .

7

TH& COURT:

was o ne withdrawn?

8

M ALLEN:
S.

Ther e are 19, Your Honor, one was

9

wi thdrewo fro. Count 2.

10

THE comtT:

11

KR. MONTAGUE::

12

Are th•r• 18 or 19?

8Y ICR.

13

19, all ri9bt.

I think 19 is correct.

-.M;UE:

Q.

Of the 19 none had a serial

n~r

on it nor

14

the identification of your iaanuf•cturin; n••• which was

1$

Preciaion ArSLt International or PAI?

16

A.

That'• cor rect.

17

Q.

And each of those b91no unmarked , did that

18

raault from the same misconception of the law by you?

19

20

KS. ALLEN:

objection to this whole - -

21

22

23
24

25

Your Honor. I have a continuing

?'HE

COURT:

All riQ'ht.

I'll let hia t••t1fy one

He'• already tes tified to thia.

ti...

THE WITNESS:

Yes, it did.

BY MR. MOHTAGU'£:

Q.

Not only based upon the regulation• but was

Bi9qs & Fleet court Reporter•
orfolk - [phone]
N

Exhibit A, Pg. 646

SS
th•t .Uaconcept1on also bas.ct upon induatry pr•ct1cea as
2

you underatood th. .?

3

A.

Ye•, it 1-s.

'S

Q.

And i• it fair to say, sir, that your intention

•t all t1miea with re9ard to these ailencer• •• well ••

6

all other armaments and weapons within your shop and

7

within your control was to attempt t o obey the law?

8

A.

Yea, it is.

9

Q.

Hr. Leasure. as based upon the Court'• •ction

10

thi• morni1U1, you stand convicted of one felony count.

12

u1de the question ot whether you 90 to ja_ 1 or not ...
1

1)

what do you understand the impact of that conviction to

14

be upon your life u

15

A.

Well, it

it'$ bMn livttd

~

to

now?

from then on I ' l l be treated aa a

16

aecond claaa citizen I feel like .

17

like about the worst

thi~q

lt 1• what I feel

that could happen to me.

18

But I will state and I don't know whether I can do

19

thi• now or not but I will say sittino here today right

20

her• and right now, if I still bad .... if l w1a atill

21

ulted whether or not I would plead qu.1.lty or not to

22

Count 1, I would still plead not guilty.

23

unde.r•tood the law.

24

what I understood to be the law, and I've 9iven you the

25

code section and I still feel it ' • very vaque.

I read and

I tried to interpret froa the law

I still

Bi9os & Fleet court Reporter•
Norfolk - (804) 625-669S

Exhibit A, Pg. 647

250

feel it 's very vaque .

In one sentence it says by tbe

2

ATF's own admission that any firearm silencer part is a

3

silencer, even a rubber di.s k that goes in the end •of i t .

4

Q.

Even a Coke bottle?

s

A.

Yeah, absolutely.

So I don' t understand how I

6

can manufaetur•. own, and I'm the one who assigns the

7

serial number but under the Code Section 179.102 that I

8

provided you out of that book that you have, not Out of

9

the new book that was published in October of 1995 it's

10

much more explicit, it's very clear, out of the old book

11

it's not.

12

Q.

Let me ask you one question about that if we

13

may, Your Honor .

The new book, which I think has a

14

yel low cover, came out i n, what, November o f '95?

15

A.

Yes.

16

Q.

And wha t is different bearing on this

17

particular point between that book and the one that you

18

had to go by?

19

A.

It says in the yellow book under that code

20

section that the form has to be done by closinq the next

21

business day, the Form 2.

22

Q.

That does not appear in the red book?

23

A.

Not under that code sect ion marked 179 .1 02

24

25

Identification of Firearms .
Q.

So it is your testimony that nowhere in the red

B199s & Fleet court Reporters
Norfolk - [phone]

Exhibit A, Pg. 648

251
57

book a.re you told Wen you're suppoattd to a.ark theae
2
3

a1l~r•7

A.

N that I could find, no.
ot

onder 179.102 it

4

atat•• that it is to be ~arked when it is •old,

S

tranaferred, or othexvise disposed ot and that'• what I

6

oot from it .

7

Q.

8
9

Th••• particular silencers were never

oo~nq

to

be sold or tran•ferred, were they?
'11\ey ~• totally separate, separate fro•

A.

10

eve.rythi.ft9 el.se in a locked cabinet, and at various

11

tiae• 1 would e-.nniba1ize tbea .nd

12

th-.

13

hundred silencers.

14

o•t

p&rta oft of

I had enough parts in IQ' sbop to •••..Ole five

Q.

And, a• a matter of fact, you bad hundreds of

15

parts, tube•, and the like that were intended to b• used

16

aa parta of eilencer s?

17

I\.

Hundred and hundreds and hundreds.

18

Q.

And the way the law is written you could have

19

been char;ed on all of them, you could have A thousand

20

counts or a thou.sand i tems und•r tb• count?

21

A .

I

22

Q.

And I ques.s they 'd want to electrocute you at

2)

Q\1886 60.

tb.at point, I don't know .

THE COURT:
2~

I'm the only one entitled to humor in

t .hi• courtroom.

Biggs & Pleet court R•po~t•r •
Norfol k • [phone]

Exhibit A, Pg. 649

252
58
1

There isn't anythi09 funny about thi•

2

Your Honor.

3

•ituation.

4

BY MR. HOH'TAGOE:

5

o.

6

M Leasure ?
r.

7

A.

1$ there anything else you'd like to tell us,

Just that I feel l ike I have tri•d to -- it has

8

b4en my intention to abi de by the law .

9

intention of breaking the law .

I had no

I -- certai,n ly fro• the

10

ti. . the ATP caiae into the raid, I bad three days.

11

l•Ct thei r own printout tb-.re .

12

in the> bock and se•n mry inventory.

13

that inventory and ma de sure eve.rythin9 matched and the n

14

I probably wouldn' t be sitt inq here,

1~

wanted to get it straight.

16

wanted it t o be straight .

17

wouldn't do i t any differently.

18

19

Q.

They

They'd never even been
I could

~ve

taken

but I wanted -- I

I f there w. . a proble.nt, I

And, I'm sorry, I atill

And you didn't attempt to hide anythinq, you

coope rated fully i n that investigation?

20

A.

Absolutel y .

21

Q.

Because you didn't th.ink you'd done anythl.ng

22

vronq; i s that correct?

23

A.

24

MR. MONTAGU'B :

25

TRI COURT:

No~

I did not.
Answer Kiss Allen.

cross. Ms. All•n?

Biqgs & Fleet court Reporter•
Norfolk • (804) 625· 6695

Exhibit A, Pg. 650

253

KS. ALLEN:

No quest.ions. Your Honor.

2

THI: c::cmtT:

Step down.

3

Any other witness, Mr. Montaque?

•

MR. NONTAGU'E.

s

Tba.nk you. Hr. IAaaure.

Yes, sir.

I'd like to call

Nra. Leaaure.

6

THE COURT:

All riqht.

7

CHERYL LEASURE. a Witness, called on behalf of the

8

Defendant, havino been first duly sworn, waa ex&ained

9

and teatified as follows:

10

11

DIRECT EXNCINA'llON

BY Nit. _,AOOE:

12
13

A.

Q\eryl Leasure.

Q.

WOuld you spell Cheryl for the Court.

15

A.

C-h-e-r-y- 1 .

16

THE OOORT:

17

c ... h-e-r-y-1, 90 a.head.

BY Hll. MONTAGUE:

18

Q.

And you're married to Mr. Leasure?

20

Q.

How lon; Mve you-all !>Mn u.r-ried?

21

A.

we have bee.a aarried alaiost • year.

Q.

And you're -- actually, your firat anniveraary

23

ia goinig to be

next week;

isn't it?

A.
25

That'• ri(itht, Monday.

Q.

Ok.ay.

And do you have any children by • prior

8i99s & Pleet Court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 651

60

aarr1a99?
2

A.

Yes, l do .

3

Q.

And describe the child.

•

A.

He's six year& old.

5

Q.

And has Drew

ti

~n

Hi• name i• Drew•

your observation a a hi• iaother

fonnod a r elationship with Mr . Leasure?

7

A.

Yes, sir, a very close one.

8

Q.

Would it be fair t o say that you

9
10

11
12

13

15

t~in.k:

Mr. Leaaure has become a father flqur• to your eon?
A.

Very auch &-o, aiore than hi• own father; 1

ahoul4 eay biological father.
Q.

And bow do you reqa.rd your bu.l>and in teraa o f

hard work.1n9f'•••· good citi:e.ns.h.ip, and that aort of

A.

He's very hardworking, he'• very honest .

16

never •••n anything where he's tried to h ide or do

17

I've

anything wrong.

18

19

20

ll

o.

And you 're i nvolved -- have b4ien involved in

the buaineaa at t he qu.n shop, have you not?

A.

Ri9ht, I've come up there and helped out •

little bit there.

22

o.

Have you helped 1.9')rove the r.cordkeeping?

23

A.

Yes.

MR. MONTAGUE:

25

THI COURT:

I th.ink that's all.

Any questions?

Biggs & Fleet Court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 652

255
61
HS. ALLEN:

No, thank. you. Your Honor.

2

THE COURT:

Thank you, Ms. Leasure.

3

Ca1 1 your next witness.

4

MR. MONTAGUE:

5

THE <X>UR1':

Step down.

That's all, Your Honor.

All right.

I'll be g l ad t o hear f r om

6

you, Mr. M
ontague, and at the proper

7

Mr. Leasure if there's anythi ng further he wants to say.

8

9
10

MR. MONTAGUE:

All right.

t i~•

I'll ask

Excuse me one second,

Your Honor.
THE COURT:

surely.
(Pauso.)

11

12

THB COURT:

,3

MR. MON'l'AGUE:

14

THE COURT:

Hold up for just a minute .
Yes,

sir.

Mr. Montague. there were objections and

1$

I overlooked these begi nni ng on Page 16, 17, and 16 and

16

they looked like you objected to paragraph 16.

17

object to the finding made by Mis& Thayer that

18

Mr. Lea.sure wa.s not entitled to any acceptance of

19

responsibil ity under the

20

not guilty in the defense of t he case , he isn't ent itled

21

to any so if you. have any objection to hi s not 9ettinq

22

the three points, that objection i.s overruled.

l~w.

You

Because of his p leas of

23
24

25

TH! COURT :
raised.

Now, t o Paragraph 19 an objection is

The probation officer '$ report that defendant
Biggs & ~leet Court Reporter s
Norfolk - [phone]

47-740 98 - 9

Exhibit A, Pg. 653

256
62
failed to

~Y

f1ne.s and court costs for • reekl•••

2

drivinO' conviction and that would have no effect on any

3

pena lty t ,hat I would be involved with to •tart with, so

4

t hat obj•ction is i rre levant s o far as 1'• concerned .
M ALLEN:
S.

And, Your Honor, just for th• record.

6

t he probation officer informed me this m
orning that upon

1

further inveati9at1on she found out on February 10th,

8

1987, that Mr. Leasure had, in fact, paid thole court

9

coat1, and we would withdraw that and note that for the

10

record.

11

TH£ COURT:

The fine has been paid?

12

MS. A.LLD:

February 10th, 1987, that'• cort"Kt,

13

Your Konor.

MR. M
ONTAGUE :

The only reason I ••d• tha t

15

objection, Your Honor, is because it crea ted a aort of

16

scuff or a different

17

think t hat was deserving.

18

'l'HE COURT:

t~

of appearance and I di dn't

Paragraph 20 reflects the d•t• ot the

19

a.rre•t.

20

warrant executed J\lne 1, 1993 .

21

con•-cru•nc• to this.

22

KS. ALLEN:

The probation of ficer relies on a copy ot the
I find that to be of no

Just. for the record. Your Honor. we

23

have a certi fied copy of the p.Aperwork the probation

24

officer wae relying upon which is marked &I Government's

25

Exhibit 12· 1 which we'd offer t o the Court.
Bi ggs & Ple e t Court Reporters

N
orfolk - [phone]

Exhibit A, Pg. 654

63
THB COURT:

All right.

Show it to Mr. Montaque.

2

Put it with th• papers in the suit.

3

Paraqrepb 47 an objection

that th•

~a raia~

4

probation off icer reported the defendant didn't file

S

r~eral

6

accordino to tho Internal Revenue service'• Taxpayer

7

Service• Division; they have no record of a return t>.inq

8

filed tor those four years and, ther•fore, no change was

9

Mde to that.

10

taxes for the years '90 . '91, '92, and '93

Do you have any response to that?

MS. AI.LrN:

Your Honor, we have a cert:ified copy of

11

the probation officer's request for tb• infonaation as

12

~11

13

lxh1bit 12-2 has also been shown to Mr. MOntaque.

•• th• lRS's response that refl.cta that Goverru11ent

TffE COURT :

Mr. Montague, apparently he hadn'T;

15

filed a return at least accordi119 to the evidence

16

available to ..e.

17

lot of dilterenco but do you have •nythin9 to tho

19

I don't know that it'• 9oin; to

MR. MOtfTAGtTE:

~ake

a

The only thin; l have i• that

20

Mr. lA••ure has assured .e that be h•• filed •ll the

21

return.a and has paid all of the

22

in thi• c••e a victim of Govenment record.a tMt don't

23

e.xiat.

24

THE COORT:

25

to •t•rt vith that.

tu••·

Well, wait a •inute.

H• ta constantly

W•'r• not QOinQ

Are you 9oin9 to indict the

Bi9os & Fleet court Reporter•
Norfol k - [phone]

Exhibit A, Pg. 655

258

2

file any tax•• for those years?

3

MR. MOffTAGtTE:

•

THE COURT;

Ho, Sir-

I'a sure they --

Turn to your client, I'• not QOiDO to

5

take that •• a char9a against the Government.

6

your client.

7

paid tax•• · tiled returns for those year• when they eay

8

he did not.

9

Talk to

Ask him has he oot any evidence t ,h at he

Ml\. t«:>N'TAGOE:

I don't need to aak: hill th.at, Your

10

Honor, he would have ¢ven it to . . if be had.

11

doe• not, and l'• sure the

12

I don't qu••tion that.

13

IJtS

Ko, be

is acti.DQ 1-n qood taJ.c.h.

The only thinq I do know and will add thia to

if l .ay is that after tbe d*'8.lae of

h~•

~b•

14

Court

15

Preciaion

16

payroll taxea and the IRS procedure in that caae 1• to

17

impoae a hundred percent penal ty on the peraon in charo•

18

of the company that's gone belly up.

19

Hr. t.eaaure, they imposed that penalty and then after

20

... tinQ with tu.a, they va.ived it O.Ca\l.9-e of hia

21

f'lnan.c:ial condition and the only thi.ng that happened va.s

22

they did take an assi9nt11ent on all of the quna th.at the

23

oovenua.ent now holds.

24

when t .hey're turned loose.

25

A.nu:

TH! COURT:

CQelP&DY,

1nternational, there were aOfllle unpaid

In th• caae of

They're supposed to 9et tho••

The la.st

obj~tion

i• the cOlllputations

Biogs & Pleet Court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 656

259
65
1

ba.aed on the nU!lber of weapons and that'• an aaount t.hat.

2

we'll have to diSC\llS after your arqwaent, ao now qo on

3

with th• arvument.

•

MR. MONTAGUE;

All right. sir.

l'a gettin; a

5

little diacombobulated here, Your Honor.

6

-- let me ••• if I can find the lan9uaoe.

7

ca.me up, the language of the regulation• under 179 of

8

the reoa. affect ing firearm manufacturere, reqiiatration,

9

identific•tion of firearms.

I think that

Thia langua9e

Mr. Leasure has testified that the reouJ.ation has

10
11

been amended at a t.ioe a.ft.er thi& ca.&• vaa already in

12

p.roc:••• to require anyone aanufacturinQ ail~•r• aa he

13

did to .ark then with a serial nuaiber which he aalcea up

14

and put• on himself and the narae showinQ the

1S

m.anufacturer'a identification.

. 16

It saya that that

~ust

be done in accordance with these reQUlationa and the

17

only positive time that it gives him to do it ii where

t8

the a i lencer is not an integral part of a complete

19

fir••r•.

It llNSt be done at the tilne of

•al• or ot

21

22
23

you.

You take that u.p with the Pourth Circuit.
Jr'.R.

HOHTAOU'B:

Well, tM issue today 1 think ia of

1 think that ia important and

24

th• element of time.

2S

ahould C. important to the Court.

1 underatand what the

Big9s & Fleet Court Reporter•
Norfolk • [phone]

Exhibit A, Pg. 657

-

I

260
66
Court'• ruli09 was a.nd I think the interpretation
2

probably iS VTOOQ bQt OD the other hand nowhere in the

3

r-oulation does it t e ll hi.a vhe.n be i• to do it other

4

than when he sells i t .

s

THI COURT:

I've alr eady ruled on that.

6

Kr. Montaque.

7

problem with that.

8

that, you'll get your opportunity in Rich.and.

9

I've found him QUilty.

KR. MC>HTAGCE::

J don't have any

If you've got anything to add to

I have already tla09ed tor the Court

to

t!Mt c . .• of Staples aga.in.st

11

illlportant in this case because it doea involve a Mntal

12

al..ant in

1)

lava t o be an absolute offense, a atrict liability type

14

of offense.

15

welfare crimes .

16

inherently dangerous such as druga, high axploaiva&,

17

things of t hat nature t hat a peraon would be deemed to

18

know that there nwst be. so1ne r•guletion whether he says

19

with all the innocence of • lamb that he did not know,

20

ther•'• eany reasons he should know whatever it aay be,

21

• nuclear device or h4nd 9ren.de or ..c:.ethi!)9

22

kind.

23

t~

United Stat••·

It's

""'•t appeared io the lfAY COnore•• drew these
These are what have bean called public
The y're instru.111entalitiaa that are so

ot that

The Staples opinion v a.s paaaed. after -· looq after

24

the Freed opinion on which th.I• court relied and decided

25

in 1994.

Justice Thomas wrote the opinion for the

Biggs & Fleet court Reporter•
Norfolk • (804 ) 625-6695

Exhibit A, Pg. 658

261
67
. .jorit.y and be discu.ssed it at great lenotb.

The

2

tr•dition of Anglo-Saxon courtroom jurisprudence

3

require• that there be some knowledge of evil in conduct

4

that a

5

universal and persistent in m.ature syatern• of

6

belief in t he f reedom of t h e hum.an will and,

7

conaequently, the abi l ity and dut y

8

individual to choose between good and ovil.

9

~r1on

elect$ to pursue.

He say• it ia as
la~

as

ot a normal

Thia case at l east t he l ast time J looked had not

10

COIN out of the u.s. Reports but it'• in the 128

11

Lawyer'• Edition. 2nd, be91nnino at

13

support for ita position which was b._.ically a no-intent

14

position from our d ec i sion in p s

1S

and 10 forth, 1971, A c a se involvino unreoiatered hand

16

o~•nadee.

17

it'• ruling in thie c aee .

18

P~•

y

608.

In that

Pree4, 401, U.S.

T hat's t he case the Court relied on in making

That reasonin9 pr ovides little support for

19

di•P*n1in9 with mens r ea in thi s case.

In thJ.1 ca•e

20

what I think h$S happened is th• d•f•nd&nt hae made a

21

concluaive ahOWift9 of a laek of -.nytb.i.nq other tha.n a

22

law U>idinq spirit.

23

aupporta that.

24

do not think that the instrwrientaliti••· th••• locked up

2S

ailencere that didn't work properly --

Be's an honorable aan; hi• record

Be didn't mean to break the lav, and I

Bioqe & Fleet court Reporter•
Norfolk • (804) 625·6695

Exhibit A, Pg. 659

68
THE COURT:

There was no showing: that t.beH

2

ailencera didn't work properly.

Be fir.:S every one,

l

kept a lllJ.nute record of the decibel•.

4

corm;>letely done, Kr. Mont ague, •o don't put anythino

5

talae in the record.

They -.re

6

HR. MONTAGUE:

7

the r•cord, Your Honor.

8

recollection that the Cour-t d.t'ev from t .he te1ti1110ny of

9

one of the 8A'l'P agents.

I'm not puttinq anythinq tel•• in

That wa• a mi1tek• in

I'll live v ic.h it.

10

THE OXJRT:

11

Mil. tC»l'TAOO.!:

Well, it va..s the BATT &99Dt tha.t

12

tir~

14

decibel reduction va.s done by --

15

the ailencers.

THE COURT:

I'• sure Mr. Leuure had fired

He testified, Hr. Montaque, that many

16

of th••• ailencers the reason they wore in the cabinet

17

waa becau10 they didn't meet -- when he teated them,

18

they diOn't meet the reduction in decibel• that he would

1g

r.ciuire of an instX'\llllent.

20

that •• a fine workaa.n he found SOMthin; vr01'a9 with

21

th... but be test.cl. thea and found that they didn't suit

22

what he wanted.

23

tell . . otherwise .

He knev that they would vork.

MR. MONTAGUE:

25

You can argue with . . but

Don't

I'• not telling you otherwiae.

I'a

11yi119 your finding in your order in thia ceae that
Bigg& & Ple et Court Reporter•

Nor{olk - [phone]

Exhibit A, Pg. 660

263
69

•

3

4

5

·t Q ~ fired

TU COURT:

them and kept

a record v u

the Goverwnt

we can check t.he record but 1 '• Q.Oinq

on vhat he teatif ied.
MR. t«>HTAGUE:

Yes, ther e's no queation that he

6

knew that they did not meet his standerda, and he was

8

for pu-ta.

9

11
12

THI COURT:

That's your argument •nd that'• the one

fir.able or couldn't be used, that'• not in the r"ecoro.
MR. MONTAGUE:

I didn't tell you that. and I'• not

13

tryino to u .a leMS th• COurt in any way.

14

been very open in a..ll aspects of

thi~

I think J 'v•

tMn9.

15

certai.nly, he isn' t going to thr·ow away the

16

ailencer but h• wasn' t 9oin9 to market it becauae it

17

didn't vork right, didn't meet his h 10h•r atondarda and

18

he aav nothinq wrong in the way he underatood the

19

regulation and the industry practice• to keep th••

20

aimply u

21

in tho•• devices are very e.xp4tnsive and why throw thea

22

away~

23

a 80\ll'Ce of spare parts .

Th• ... tala involved

Baaed upon everythi.Dt;J that'• before the Court, l

24

would aak the court t o taKe into account thia ••n'•

25

lifelong 9ood record aod the fact that thi• particular
Biqgs & Pleet Court Reporter•

Norfolk - [phone]

Exhibit A, Pg. 661

264
70

case, the incidents that a.rose to bring this case into
2

this court wore tho product of a completely innocent

3

mind, a man who is a lif•lono law abiding citi%en ..
Miss All.e n.

4

THE COURT :

Thank you.

5

KS. ALLEN:

Your Honor, I believe that the

6

presentence rGPort shows the base offense level to be 18

7

plus a 6 for 60 weap¢ns, whi ch the p r obation officer

8

relies upon Paragraph 11 of the presentence r•pori.

9

probation officer's c alculations are in

accordanc~

The
with

10

the Fourth circuit law, particularly, t he Bowman case

11

which was 926 F.2d, 380, 1991 Fourth Circuit decision

12

approvin9 the court'$ sentence based upon t he convicted

13

counts

~nd

uncha_roed counts .

14

I think the probation officer has figured 60

15

firearms based on the guns that were in the indictment

16

as well as other guns that were seized with the search

17

warrant.

18

would be 51 to 63 months.

19

consider 60

20

If her calculations are riqht, the guidelines

THE COURT:

If the Court decides not to

I'm not qoing to count any of the guns

21

that have been thrown out because of the reo1stration

22

period, so i t will reach nowhere near 20 .

23

et the most.

24
25

MS. ALLEN:

It will be 19

Based on the Court's statement there,

the Government sees the baso level of 18 p lus 4 since
Bigqs & Fleet court Reporters
Nor!ol k - (804) 625- 6695

Exhibit A, Pg. 662

265
71

th• qun.e in Count 1 a.re 19 and tM 4 point enhanc.M-nt

:z

ia for 13 to 24 firear&& a.nd if that'• tru., th• tot.a l

3

for that level will

4

r•no• of 41 to 51 months: .

S

finda, the Government has no further argwne.nt other than

6

that.

7

TH• COURT;

be 22 givi nq th• 00\lrt a 9Uideline

All right .

If that'• what the Court

M . Montaque, you have a
r

8

rioht to anawer that .

She says that the unlav -ful •

9

po•••••ion of firearas in Level 18 -· tbia doean't state

10

vhat 1'• ooing to do but that number of fir-et.raa are

11

.ore than 12

12

v ith 22 a.nd the incarceration period ia 31 to

13

.on~ha

14

find i n9a in the matter.

1S

MR. MONTAGUE:

and less than 25,

&dd 4 and you C099 up

ao.e other

ao you better answer that, and I'll aake ray

My answor to it would be thia, Your

16

Honor, would be the r etention of tha \lNl'l&rkad ailencers

17

- the 19 unmarked silencers - r esulted from a ainole ·

18

m11intarpr-.tation of law and should be treated •• one.

19

Mr. Le11ure testified it could have been 500 or 1,000

20

device• under th• st.me eate;ory entirely innocently

21

ret&ined •• were the hundreds: tbat he wa• not charged

22

under.

23

the !irearae, of t.hese silencers, the.. . non-properly

24

workino 1ilencers should be treated aa one ve•pon and

Why h• va,s n't l don't know but th• retention of

Biggs & Fleet Court Reporter•
Norfolk - (804 ) 62S·669S

Exhibit A, Pg. 663

72
A.nd, of couree, I

t.h1.nk beyond that,

the COurt

l auogeeted in one of

2

a.bould e.x•n:.iae it• discretion.

3

-.y pleadinqa that the Court consider a l••••r included.

4

otfanae which is failure to properly record firaarma,

5

wh.i ch 11 under 18 USC 912M, which ie a •i1dameanor at

6

of fanae Level 6 which 1$ much mor• appropriate to thia

7

caae.

I'• not 9oi1l9 to $ay t .here vaa nothing

8

bare.

I do think the Government has a ri9ht to regulate

9

thaae thinga; they are

~ro~o

dang~rous.

10

O.rtaiD.ly, ve associate silencer• with .any

11

criainal activities, assassinations and thi-DQ'• of that

12

tind that thia Gove.rnaent cert.a.inly

13

control but he.re the appearance of heavy evil 1a

14

not the.re.

15

THE COURT:

~·

a ri9ht to
~uat

I'• not goinq to file a written order

16

in the matter, so I will record tor the record my

17

findino1 aa they apply to t his case .

18

conclu•ion of the evidence and th• information aet forth

19

in the trial ord~r the court doted somethlft9 like

20

Yebru•ry 6th. the Court found the defenclan.t quilty then

21

. . to count 1 which vas t!M silencer count, 19 aile.nce.rs

22

that were not reqistered at ail and not 1,n co.pli•nce

23

with t ,be atatute vhicb requires th. . to be reioi•tered

24

vith t ,h e firearms people by the close of bu•in••• of the

25

aec:ond day after their manufacture.

Upon the

That'• perfectly

Biqgs & Pleet court Repcrtera
Norfolk - [phone]

Exhibit A, Pg. 664

73

clear to me .

And while I understand Mr. Leasure may

2

have some trouble with that. I don't.

3

HO'$ found guilty

of a violation of count 1.

4

I also had some -- as to Counts 2 and 3, the deal

5

wi th registration and the debat e that surfaced between

6

Mr. Leasure and the firearms people as to whether or not

7

he was using a method of cancelling c ertain transfers

8

that he made to his accountant apparently over some

9

bankruptcy difficulty that he -- but that's - - they were

10

transferred to somebody

na.~

O'QUinn and when the --

11

whatever the problem

the m.4tter that had prompted

12

that transfer s eemed not to have transpire d, then the

13

effort was made to cancel those transfers by writing

14

void across the front of the transfe r agreeme.nt t hat had

15

been acceded to by the firearms people .

16

And then the same thing would

~pply

to Count 3 and

17

to the re<;iistration of a 22 pen pistol gun which is set

18

forth in Count 6.

19

pistol was not called a firearm it was called a weapon

20

is of no importance to me dnd I thi nk that's a facetious

21

argument and I would overrule

22

The arqument made in Count 6 that the

i~

on that basis .

But havin9 heard the indictment of the

23

recordkeeping of the National Firearm services that was

24

expressed in February of 1993 and having heard something

25

that was not brought up at trial that the head of the
Biggs & Pleet Court Reporters

Norfolk - (804) 625- 6695

Exhibit A, Pg. 665

268

reqoietration division mode a speech to all of hi• people

2

and aaid that the record>c:ecepi.nQ was 49 to SO percent in

3

•rror and feeling •• I do that fros the teatiaony....of

4

Hr. Schaible today that that information waa tully

S

knowledoeable within the National Firearm• Bureau at the

6

time it was made - it seems i t was on cloaed circuit

1

telaviaion and then a t ranscript i on waa made - and

8

hearinQ from him that at the time, whether it wa• in

9

October or November 1994, that this raia-4 auch a turor

10

within the bureau that Hr. Busey if waa not fired but

11

that he .. vol untarily'" retired from b.1a poaition ao that

12

atat . . ..nt -- vbich nobody s...u to know Were he qot bis

13

fiCJUr•• from -- but that was not furniahed to t.he

14

defendant• in this case.

15

rioht to have brouoht that up to me as ahowing the

16

correctneae of the Cirearms registration tor their beinq

17

queationod by the top rnan in tho re9istration bureau.

18

And they would have had a

I don#t say this to Hiss Allen.

I've known her for

20

riecord th•t ahe knew nothing about thi• until ah•

21

received a p•cket fro• some place froa the Depart. .nt of

23

then an investigation was ilrnediately ordered, and the

24

conaeque.ncea of it.

25

whether or not Kr. Busey's infol"lllation vaa correct or

That statement and t.he question of

Bigos & Fleet court R•portera
N
orfolk - [phone]

Exhibit A, Pg. 666

75

2

coun••l, and its not being furnished s...,. to . . to have

3

violat.e d a precept und•r which we proceed.

4

Por that r eason I;ve thrown out all of those counts

5

of t .he indictment which deal in any manner upon t h e

6

active and r egistered nwnbers assigned to weapons and

7

that leaves us with the silencers.

8

problem with the law in the case that when you make a

9

ailance.r, you've got t o r eqister it by five o;clock on

I have absolutely no

10

th• and of th• day following its nt.anufactur•.

11

th• Ntter 1• before . . for sentancinq now on only Count

12

1 of th• indict.ant that aft.ets Kr. Leasure.

13

Mr. Monta91Je, have Kr .

14

l•ctern.

15

Lea$u~

And so

step with you to the

Mr. Leasure, the law r equires that a judoa of this

16

court 9ive you an opportunity to make any atatcments

17

you'd like to make before I proceed to sentencing.

18

do•• not r.,quire that you say anything .

19

fact, already test ified both at the trial in chief and

20

at thi• sentencing hearing, but if there'• anythino

22

Anythino further?

23

THB OBF'Em>ANT :

It

You have, in

I would like to ••Y •om•thinq, Your

24

Honor, and not tak• up

25

~oo

have it over here .

•uch of tho court'• time.

I

Biggs & Pleet Court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 667

270
76
TID COCRT:

Go abe.a d .

I'• DOt tired, Kr. lA•sure .

2

To 9"1ve you ful.l benefit of the lev, you have e right to

3

make any atatement you'd like to aa>ce.

•

TK& D2.PENDAHT:

5

NR. LEASURE:

Thank you. air •
Your Honor, I had no crJ.lllinal intent.

6

If I had , •h•n the ATF c&M- to my shop thr·• • daya prior

7

to the raid and left the National P1reenn.a printout of

8

the weapon• that we.re sup posed to be in s.y inventory, I

9

vould have .ade up paperwork or whatever to

o•t

ay

10

inventory to match theirs.

'1

C011Pl•ted ay paperwork proper 1 y, and J knew in rq heart

12

t b.-4 comaitted

13

BATF .. cou,ld be worked out .

no crime.

I cooperated fully .

BUt I knew that I had

1 felt any d.1.crepancie• with

I left everythinQ ju•t the way

1S

it .,. . even though they bad never atepped foot in the

16

manufacturing portion of my shop at that point in time.

17

I contacted thorn on t w separate occa•iona to find out
o

18

what the atatu1 was on the case and on the thinQ& that

19

they eei ~ed from me.

20

vord troa washinQton, and duriN; that ti. . tr..., I

21

baei c•lly went out of business.

22

I was told they were waiti.n q on

M to Count 1, I truly interpreted the ATP

23

requletions book - the only book that I had in wry

24

poasesaion of 1980 and 1989 - to mean a eerial number

25

wee not

requ~red

until it was sold,

a~ipped,

or

Biggs & Fleet court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 668

271
77

otherwise disposed of.

This was the

o~ly regul~tion

2

boolc: in print a.nd t he only one that I had in my

3

poS$ession.

4

I, of c ourse, now know i t crystal clear that that's

5

not the way that i t is a nd that I ' m suppo s ed to do it by

6

closinq of the n e xt business day.

7

was printed by ATF was in October of 1995.

8

furnished with one of these updates .

9

one from someone else; a f r iend of mine gave me one .

10

The next update that
I was never

I had t o receive

The Code section 179 . 102 is what is practiced in

11

tbo industry , although no one was willing- to testify t o

12

that fact for fear of ret·a.11ation and prosecution.

13

reqard t o the - - brief ly, just the transfers to Ca rl

14

O' Quinn .

1~

O' Qui.nn, w was m.y accountant at that time and the
ho

16

person that I transferr ed these things t o that were

17

voided and approved , that

18

were dono in exactly t he same way tho others that I

There

we~e

In

t ransfers that were done to earl

1

was not indicted on that

20

In closin9, Your Honor, whenever I thought of

21

someone who was a convicted f e l on, I thought of a person

22

who committed a terrible crime, certainly not one that I

23

considered to be paperwork and a misinterpretation of

24

the law.

25

criro.e and I did not nave any criminal intent, and that's

I did not and have not knowingly com111itted' a

Biggs & Fleet court Reporters
N
orfolk - (804) 625- 6695

Exhibit A, Pg. 669

272
18
all l have to say.
2

TIU COURT:

All right.

1-'bank you, Hr. Lea•u.re.

3

Horaally. ooinq strictly by the qu..idelin•• in the_ca.s•

4

we would Co.Ml

S

be.ino • violetion of tho $tatute would

6

ouidelin•• with a besic 18 point• under 2K2.1 (a) (5).

7

Th• unlavtul possession of a firearm ha• a entry level

8

of 18.

9

~p

with the poss•••ion of •ilencera and it

And it 1 took into account

t~

co~

into the

wbol• 19 of th•

10

aileneere, there would be added at leaet •• .,. vould be

11

bet.,,..n 13 and 24 a.nd you vould add 4 point• and that

1 ;z

wou.ld

1)

Hntencing table would reach 41 to 51 aiontha.

14

aat1a!i9d in th• case not that there baan't been a

15

violation, there has been oo far as I'• concerned

16

clearly 1hovn, but that the impact of the bundle of

17

silancare which were int roduced as e vi dence in thi•

18

court reno• from littl• small implement• to •o••thinq of

19

conaidera.bl• size and the fi.nding of tho•• in a cabinet,

20

•• Mr. Leaa\ll"e su9gests, in a locked cabinet, and, of

21

CO\lt'ae, at that point the violation had &lre-.dy

22

occvrred.

23

cc.e

up vi th a total of 22 for vhieh the quideline

But it

&ee~

But I'•

to .e that thia aatter fall• under 5K2

24

of the quideli.nes and 1 quote it.

It aaya that the

25

ju69e may depart from the quidelinea and impose a
BiQQS & Fleet Court Reporter•
Norfolk -

( 804)

625-669~

Exhibit A, Pg. 670

273
79

••ntence oute.ide of the quideli.nea, "if there exiata an

2

a99ravatinq or aitiqati.nq circuasta.nce of a ltind or to a

3

deqr•• not adequat.e ly t .a ken into consideration by .th•

4

aentenein; colllll.i&&ion in fonaulatinq the quidalinea,

S

that ahould result in a sentence differe:nt fre11 that

6

daacribed."

1

I think that's th• caee hare.

I'd add one thinq further in Mr. Lea•ur•'• tavor,

a

th• record va1n't written up totally in the caae tiut •s

9

J recall it, the sales that had bean ••d• by him had

10

Men aade to other Governments und4r prohibitions

11

oranted by tbe United St•tu or to the ~DC1•• of the

12

Unit-4 States so that gene.rally

13

oAat deal of scrutiny being applied to ailencera and

15

certainly an illl)lement that is used in covertneaa of the ,)

16

moat advanced sort .

17

points and come to -- wall , depart by 9 point•, that

18

COfll4e to 13 which carries und•r the S.ntenci119 Tables o!

19

Crilll.inal H.iatory Category 1, 1l to 18 .onth.e and

20

••nttnce hi• at the bottom of that to 12 nontha, $50 for

l1

the con•iction of a felony, v &iv• fin•, thr" yea.rs

22

auperviaed release .

24

thi• order of the Court, John o..niel i..a.u.re i• hereby

25

co.nri.itted to the custody of the United State• Bureau of

s~akiog

there v u

a

I, therefore, will depart down by S

Biggs & Fleet Court Reporter•
Norfolk - [phone]

Exhibit A, Pg. 671

274
80
Pri•o.n

to~ by

tbe;;;ri incarcerated for a period o f 12

2

.ont.h.a.

3

r•l•••• of th.r. . yea.rs upon bis r•l•••• froa

4

incarceration .

5

people upon hi• release on supervi•ad rel•••• · he would

6

take euch tests fo r the use of any controlled 1u.batance

7

within a r•asonable t ime period thereafter that should

8

be required of hi• -

9

That be $hall. serve a t e ra of euperviaed

That if requested by the probation

You hav• a ri9ht of Appeal. Kr. Leaaure.

Jf you

10

viah to appre.al. you must notify the clerk of this court

11

in vritinO within t.e.n days.

12

money to h~re an attorney co prosecute an appeal and if

13

you !all within the statue.es beinq provided, an attorney

14

would be •PPointed by the united Stat.ea and paid by the

15

United States.

16

If you do not bav• the

If you don't have the money to pay the coat of such

17

an appeal and if you fall wi thin the 1t•tute they ' ve

18

provided, thet cost will be paid by the United States .

19

Where you would be incarcerated for thia period of 12

20

.ontha would be a aa.tter that \tOuld b•ve to be

21

dete.rain-4 by the Ma.rsha.llis office, •nd I'll i . .ve you

22

er.. 00

23

report before 2 p.a. on June the 21at .

24

c•lendar.

25

bond under th4- present order• of th• Court to
I don't have a

ls that not on a Priday, Saturday, or Sundey?

MS. ALLEN:

Tha t's on a Fr iday, Your Honor.

Biqgs & Fl•et Court Report•ra
Norfolk - (8041 625-6695

Exhibit A, Pg. 672

275
81
It. i .s a Friday. Judqe.

MADAN CLERX:

THI COURT:

2

All right.

Tb• 20th. Ttluraday, to the

l

U.S. M&r•hall at Norfolk by two o'clock. June 20 . 1996.

4

If a point of designation ha$ be•n indicaled by the

S

Depart111A1nt of Prisons and. Bureau of Priaona at that

6

time, you would report to the warden of t h• pri•on 10

7

dea19f\ated before two o'clock of June 20th , 1996 .

How, J

8
9
io

to

a~al.

if he appeals

I aaaume he ' s QOir\9

What sort of bond 1.$ he presently on,

Kr . Hontaou•?

KR. HOKTAGUI::

11

12

•••~

I don't

~all.

TRI COURT:

13

Well. let . . look .

MR . HOtlTAGUE:
THB COURT :

15

It is a aonet.ry ..ou.nt. Your Honor.

I'll find i t.

It's not a surety bond.

Be's on an unsecured appearance bond in

16

t he aJ110unt of •10,000.

17

that he have a secur ed bond for the $10,000, but l would

18

leave hi• on bond pending that appeal, but I won't leave

19

hi• on • Sl0, 000 personal recoqnizance bond.

20

to come up with security if be wants to teX• advantage

21

of th.at.

22

MR . MONTAGUE:

23

'nm 000Jl1':

24

th•

25

If he appeals, I would require

He'll have

Understood.

All right.

Hand this to

th••• papers.

p~tion

officer .

Rave • seat.

Miss Clerk, l•t . . Qive you

Biqgs & Fleet court Reporter•
Norfolk - (804) 625- 6695

Exhibit A, Pg. 673

276
82

KS. ALLZH:

Your Bonor, ju.st for the record, the

2

Goverl\Srent needs to object to th• court'• rulinq

3

regarding the downwar d departure .

•

THB COURT:

I couldn' t bear you •

s

MS. ALLEN:

Just for the record, we're going to

6

object to your downward departure with respect to the

7

THE COURT:

Be

8

MS. ALLEN:

Thank you .

9

THE COURT:

Th.is Q08$ back.

~y

9uest .

All r19bt.

Mi••

11

12

13

CERflEJC&TIQN

I certify that the foreqoino is a correct

14

tranacript from the record of proceedin9• in the •bove-

15

entitled matter .

16
17

<l(lfrt~<gj

Date

18
19

20
21
22

23

24
25

B199s & Fleet Court Reporters
Nor folk - [phone]

Exhibit A, Pg. 674