Some background on the machinegun registry

and the problems thereof, another long piece borrowed from Sipsey. I'm not using the whole thing, if you can it's well worth going there and RTWT.

The requirement to register machine guns was embodied in the National Firearms Registration and Transfer Record (known by the shorthand NFRTR). This list is the arbiter of legal machine gun ownership. If your weapon and name are on the list, you may play with your expensive toy to your heart's content. If not, you go to the graybar hotel for many years and pay an onerous fine. The errors in the NFRTR are legendary in the machine gun collecting community, which is represented, NRA-like, by the National Firearms Act Trade & Collectors Association (NFATCA). The current president of the NFATCA is John Brown. Other board members are Teresa Starnes, Jeff Folloder, Curt Wolf, Robert Landies, Dan Shea, Robert Segel and John Tibbetts. (Readers will recall that Dan Shea has appeared many times previously in the pages of Sipsey Street, most spectacularly in The True Story of the Life of "R.A. Bear": Inception & impregnation into the minds of the ATF via a highly placed snitch named Dan Shea of the NFATCA.)

These NFRTR errors were famously compounded by clerks who, over the years, would throw paperwork in the trash when their in-boxes overflowed. The ATF has previously been caught out as instructing its agents to testify that the NFRTR is "100 percent correct" even though they admit to each other within the agency that this is surely incorrect. Most recently, the Friesen case blew up in the ATF's face when it became evident that the accuracy of the NFRTR was going to be a central tenet of the defense's case. The DOJ folded and allowed Doug Friesen to essentially "pay fifty dollars and pick up the garbage" on a minor paperwork violation. The last thing the ATF/DOJ wanted was to have to defend the accuracy of the NFRTR in court, simply because it can't be done. And yet people are put in jail every week -- for long sentences with heavy fines -- based on the allegation that the weapons they are found in possession of are not listed on the NFRTR.

Such defendants can be found in the strange case of U.S. vs, Clark. Recall that U.S. vs. Clark is a Phoenix case, investigated and prosecuted by the same cast of tax-paid malefactors as Fast and Furious. An interesting motion was filed the other day in U.S. vs. Clark, with some relevant portions below:

Defendants Randolph B. Rodman, Hal Paul Goldstein, Lorren Marc Kalish and Idan C. Greenberg, by and through Counsel, respectfully move the Court for its Order authorizing disclosure of the minutes of the proceedings of the grand jury or juries returning the indictment in this case. As grounds for this motion, Counsel have a good faith belief that grand jurors were provided with erroneous and ambiguous guidance regarding the law of the case. Failure to provide accurate interpretations of the law eliminated the grand jury’s ability to return a true and fair indictment. Errors are found in the text of Count One and are set forth in more detail below. The transcripts will enable a review for context and the ability to assess the cumulative effect of the error.

Prior to indictment, this case was investigated as a conspiracy to violate Section 922(o) of Title 18. As part of the investigation and before an indictment, every machinegun identified in the indictment was submitted to the Firearms Technology Branch (FTB), the official Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) laboratory in West Virginia. There, the machineguns were examined and tested for the sole purpose of determining whether modifications made to 34 machineguns by Defendant Clark constituted new manufactures. No opinion as to the date of manufacture of any of the machineguns was rendered by any of the FTB experts who examined and tested the machineguns. The presence of substantive § 922(o) counts in the indictment means that the grand jury found probable cause without a single expert opinion.

Currently, a year and a half after indictment, there is good reason to believe that Count One will be prosecuted as a conspiracy to violate § 922(o) of Title 18. Count One is the keystone of this 106 count prosecution. Without conviction on Count One, very few of the remaining substantive counts survive. Access to the transcripts will permit timely and thoroughly briefed objections to the Conspiracy and substantive § 922(o) counts. Dismissal of an indictment is appropriate where violations of grand jury procedures “substantially influenced the grand jury’s decision to indict,” or raised a “grave doubt as to whether it had such an effect.”

What?!? Lying by omission or commission to a grand jury? Say it ain't so, Rick Vasquez! There is, according to my sources, an internal investigation of Mr. Vasquez and his relationships with confidential informants John Brown and Dan Shea. There is a larger investigation of the question of whether those two worthies transferred automatic weapons to employees of of the ATF in return for favors. Thus, I was more than a little interesting is this portion of the motion:

THE ATF CRIMINAL INVESTIGATION

The origin of the criminal investigation was unusual. In contrast to the opening of most investigations, it was ATF employees of the NFA Branch and the FTB lab (government employees not authorized to conduct criminal investigations) who first became suspicious of the existence of a possible violations of law. After the performance of several investigatory tasks (5), the matter was referred first to the Washington DC (Falls Church) Criminal Division and later to the Phoenix ATF Criminal Division for criminal investigation.

The matter was referred to the Phoenix Special Agent in Charge by way of a memorandum dated November 16, 2006 from an ATF Deputy Assistant Director at ATF Headquarters (The Office of Enforcement Programs and Services) (6). Prior thereto, faceless and nameless ATF employees of the NFA Branch and the Firearms Technology Branch had already interviewed ATF employees about the matter, had numerous contacts with the person in possession of SN A6042075, a suspected contraband machinegun; they had conducted an alleged laboratory test of the suspect gun; and had also returned the gun to the registrant after determining it was contraband and was illegal to possess. All this took place before the formal referral for criminal investigation on November 16, 2006.

The referral memo of the Deputy Assistant Director included the following points

_________________________________

5 The significance of this is that such conduct violates ATF internal procedures. When persons unfamiliar with criminal procedures conduct interviews or handle property in a criminal matter there is risk that evidence will contaminated. ATF employees other than Special Agents, are not authorized, trained or otherwise qualified to conduct criminal interviews of suspects, seize property, receive abandoned property, collect and preserve evidence, or submit property for a determination of its potential evidentiary value, etc.

6 This position, despite its title, is a regulatory function that oversees the programs and Services that support the main functions of ATF, including such service providers as the NFA Branch and the FTB Branch supra., and others. MOTION USGJ TRANSCRIPTS FINAL 011012.wpd Page 12 of 18

supporting the need for a criminal investigation in Phoenix:

1. George Clark, a Special Occupational Taxpayer in Arizona since 1993, converted MAC Models 10 and 11 machineguns into Browning Model 1919 machineguns;

2. Applications (7) to transfer the converted guns from Clark to various parties were found to have constant make and model designations but the caliber, barrel and overall lengths were at variance with descriptions in the National Firearms Registration and Transfer Record (NFRTR);

3. One of the suspected machineguns, SN A6042075, caliber 9mm/45 cal., barrel lengths 5.57 inches and overall length 11 inches was then registered to a Virginia FFL, John Brown, DBA Battlefield Sports and that Mr. Brown transported this machinegun to the FTB lab in West Virginia for examination;

4. Significantly, the memo failed to disclose that prior to being in possession of SN A6042075, Brown had bought and sold at least two other M1919 machineguns and was a party in eight (8) applications to transfer models 1919 that had been converted from MAC models by Clark. It was also learned in review of discovery material that Brown was an ATF Confidential Informant;

5. The examination and testing of SN A6042075 was alleged to have been performed on October 31, 2006 by Richard Vasquez, the Deputy Chief of FTB; and

6. Vasquez concluded that the MAC Model 10 machinegun had been destroyed in the conversion process and that the Model 1919 was a new manufacture which triggered a requirement for Clark to file a Form 2 (notice of manufacture of a new machinegun). Since the Model 1919 was not registered, it was a contraband unregistered machinegun.

There are major problems with statements in the referral memo:

1. The memo cites neither to a statute, a regulation, a ruling nor any case law for the principle that the conversion of an NFA registered machinegun to another model constitutes the manufacture of a new machinegun and therefore requires a new registration. The conversion process described in the memo is a zero sum game. The MAC Model 10 machinegun that was converted was one machinegun lawfully registered and possessed before the conversion. Following the conversion, it was the same one machinegun albeit in a different configuration but nevertheless still one machinegun. The NFA is a tax statute and assesses tax on “machineguns,” per se, not models. The tax assessed and collected on every make, model, design, configuration of machinegun is set at the same uniform rate – $200.00 to register and $200.00 to transfer;

2. The Report of an Official Examination and Testing of SN A6042075 on October 31, 2006 is a canard, a complete, from whole cloth fabrication. Like a unicorn,

__________________________

7 At the time, 11/16/06, Ms. Stucko reported that 22 such suspect applications to transfer had been identified from a search of the NFRTR. The actual number charged in the indictment is 34 as others were discovered through investigation.

because it is impossible to find, it does not exist. The ATF FTB Laboratory has no record of receiving SN A6042075 for testing and examination on or about October 31, 2006. There is no report of such an examination in the FTB official system of records. The non-existence of A6042075's receipt in the FTB evidence log on October 31 and the non-existence of an FTB lab report was concealed from defendants throughout the discovery period. It was discovered only after Counsel’s specific requests for disclosure of the report were ignored for over a year. Finally, in October, 2011, Defendants received definitive proof that FTB has no record of receipt of that machinegun on or about that date. That fact was made known in response to a request for collateral items, i.e., for the pages of FTB’s evidence logs for October 31, 2006 and for any other entries in the FTB’s system of records. An agency capable of persisting in such deceit, patently false statements in a criminal investigation by top level ATF Headquarters Executives, is capable of much worse. (8)

THE ATF TECHNICAL EXAMINATIONS AND LAB REPORTS

Every machinegun in the indictment (approximately 80) was sent to the FTB lab for testing. Each was found to be a machinegun. However, they had been submitted to the lab for a determination whether they were manufactured after May 19, 1986. Such a finding is the ultimate proof at issue for a violation of § 922(o). The state of the government’s scientific evidence at the time of indictment was that it did not possess a single expert opinion about any machinegun submitted to FTB for testing (approximately 400) as to the date of manufacture, the place of manufacture and the identity of the manufacturer.

After the Court ordered deadline for completion of discovery had passed, on October 13, 2011, the government disclosed an undated report labeled “Supplemental Report of FTB 2008-514-KEM/FTB 2009-114-KEM.” (Supplemental Report). This report was prepared by Richard Vasquez, the government’s designated Firearms Expert Witness and purports (9) to supplement the time, these statements support an inference that government attorneys and witnesses polluted the grand jury process by the entry of erroneous statements of law. Taken at best, these remarks represent a profound misunderstanding of the rights and privileges, duties and obligations of a person in the status of a licensed manufacturer of firearms and a Special Occupational Taxpayer.

_______________________________

8 For more than a year, Defendants have requested confirmation of the existence of an internal investigation of ATF employees and regulated persons involved in this case and/or disclosure of the report of that investigation.(the ATF Office of Internal Affairs or Office of Professional Responsibility) Unlike a unicorn, the report of such an investigation does exist and it can be found.

9 The timing, authenticity and certification of this Report has not yet been challenged nor has the government provided any reasoning or authority for shifting lab reports. This is a Mr. Vasquez’s third modification of the official reports of another and bears no indicia that it is an official record of the ATF Firearms Technology Branch. The earlier official versions of the two reports contain no opinion that the conversions constituted a new manufacture.firearms expert. (One of the supplemented reports had been amended in February of 2011). Further, the report is not dated and bears no indicia that it is an official record of the ATF Firearms Technology Branch. The earlier official versions of the two reports contain no opinion that the conversions constituted a new manufacture.

Vasquez is in "a heap o' trouble," according to our sources. So, too, is the ATF. Insiders predict that the Clark case will go the way of the Friesen case, with all serious charges dismissed, afters years of investigation time and millions of dollars spent. A member of the Coalition of Willing Lilliputians, Alvin Wombat, provides this analysis:

I did a bit of serious nosing and reliably determined the following:

There is, absolutely, a sub rosa agenda by SOME people at ATF (I am not using a broad brush here) to systematically remove all of the registered/existing machine guns from civilians. The interpretation by SOME at ATF, fostered equally by ATF Counsel and SOME ATF Special Agents, is that the law was not enacted to preserve ownership of these existing machine guns, but instead to forcibly reduce the existing supply of transferable machine guns until it reaches zero.

There is some genuine sympathy developing for what Len terms ATF's "enforcement by ambush," i.e., concocting interpretations of what constitute violations of law; not publishing them or otherwise making them known; and "announcing" them by arresting people for serious felony (there is no other kind) violations of the NFA. David T. Hardy's recent observation in a blog on his site that ATF ought to, at a minimum based on the Administrative Procedures Act, make all of its pertinent Letter Rulings available to the public, including putting copies of them in a public Reading Room. The fact that ATF has issued many contradictory Letter Rulings is raising troubling legal issues.

It would be worth thumping Congressional washtubs to get the Congressional Research Service to once again address the Letter Ruling issue, in context of H.R. 126 (Fairness in Firearms Testing Act), because that would constitute a legislative approach to the issue/problem. The key to getting THAT done, in addition to the washtub thumping, is (A) getting some action on H.R. 126, and (B) getting somebody on the House Subcommittee on Crime, Terrorism, and Homeland Security to take an interest in these aspects of enforcement.

I recognize that an important agenda is for the Congress to address the serious mismanagement of ATF from the top down, particularly the jacking around of ATF personnel---the retaliation, the increasingly crazy/contradictory enforcement. The "enforcement by ambush" aspect is just another example of ATF Counsel and top management abuse and failure to professionally administer the law.

5. In reading some of the Clark materials, it is impossible to conclude that the U.S. Attorney understands the law, and that ATF (through ATF Counsel) is not deliberately misrepresenting the law. The fact that this involves machine guns makes it politically dicey.

6. An angle to mess with this may be to put the ATF Letter Rulings in context with the Fairness in Firearms Testing Act; in particular, the practice of ATF to concoct standards to bring certain firearms into NFA status; like the re-testing in the Olofson case; and the crazy prosecution of Friesen (which revolved around what amounted to a firearm description).

Alvin Wombat.