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U.S. v. Adams, 11 F.Supp. 216 (S.D.Fla. 1935)
This is the first reported case I have found interpreting the NFA.
Adams got caught with an unregistered Thompson SMG right after
the law was enacted. The court finds that, based on the cases
interpreting the Harrison Narcotics Act, the NFA is constitutional
as an exercise of the taxing power. The court decides that the
tax power can be used as a substitute for the general police power
Congress allegedly doesn't have under the Constitution; Congress
can tax things it dislikes out of existence. The court also directly
addresses the second amendment issue, and decides that the amendment
only protects the rights of states to have national guards, and cites
a whole host of cases, carefully avoiding both Supreme court, and
other state court cases directly to the contrary. Too bad Adams
wasn't appealed, instead of Miller. It would have
at least disposed of the "short shotgun is not a military weapon" issue that
Miller hangs on.
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U.S. v. Adams, 438 F.2d 644 (8th Cir 1971)
This very short case really only has one point of law; can
you be in "possession" of a sawed off shotgun such as to
constitute a violation of the NFA if the only evidence is
that the police saw you throw down a sawed off shotgun?
Yup.
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United States v. Adams, No. 96-4970 (11th Cir. 2/36/98)
In this case the court decides that in order for a person to be
convicted of possessing a firearm as a felon, the government need not
show whether the firearm was operable, nor whether the defendant knew
whether it was operable. If the gun was described as a Winchester
shotgun, and the characterization as a firearm was not rebutted by the
defendant in his case, then the jury could conclude that the item fell
within the statute, whether it in fact worked or not, and regardless of
whether the defendant knew it worked or didn't work.
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U.S. v. Aiken, 787 F.Supp. 106 (D.Md. 1992)
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U.S. v. Alborola-Rodriguez, 153 F.3d 1269 (11th Cir. 1998)
In this case the court decides that for purposes of the sentencing
enhancement for using a sawed off shotgun in a crime, the determination
as to whether a sawed off shotgun was in fact used is for the court to
make, not the jury, as part of sentencing. The court thus disagrees
with several other circuits, setting up a situation where the Supreme
Court may agree to decide the issue.
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U.S v. Allah, 130 F.3d 33 (2nd Cir. 1997)
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U.S. v. Alston, 112 F.3d 32 (1st Cir. 1997)
In this case a convicted felon got a mandatory 15 year sentence
for possessing a rusted shut Colt model 1908 .25 caliber pistol.
ATF was able to get the gun to work after the use of WD-40 and
a mallet, according to the opinion. Because the defendant had three
felony convictions, all over 20 years old, he is subject to a
mandatory 15 year prison term. The main point of interest in
this (to me, anyway) is the court's approval of the thinking that
a pistol that is incapable of firing a shot when seized is still
a firearm as defined by the the GCA, because it was "designed"
to fire a shot, even though it wasn't able to do so when seized.
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U.S. v. Alverson, 666 F.2d 341 (9th Cir. 1982)
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U.S. v. Amparo, 68 F.3d 1222 (9th Cir. 1995)
In this case the 9th circuit decides that possessing two guns,
a sawed off shotgun and a pistol permits the defendant to be
convicted of both possessing a sawed off shotgun, and possessing
a firearm while committing a crime of violence, under the setencing
enhancement at issue in Harris,
Bailey and Smith.
The court decides, without much basis, that mere possession of an unregistered
NFA weapon is a "crime of violence." Possesing a pistol at the same
time, therefore, kicks in the sentencing enhancement, assuming the
jury finds he possessed a second gun besides the sawed-off.
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U.S. v. Anderson, Transcript of decision, No. 15951,
(D.Colo. May 6, 1959)
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U.S. v. Anderson, 885 F.2d 1248 (5th Cir. 1989)
Anderson is a precursor to the Staples
supreme court case, where the 5th circuit (the whole circuit, rehearing the
case en banc, and voting 8-7) reversed its own precedent and
decided that in order to get a conviction under the NFA the
government must prove the defendant knew the gun was the sort
subject to the NFA, not that it was a gun in the general sense of
the term. A lot of this decision was adopted by the Supreme
court, both the majority opinion, and the dissent took a lot from
this case.
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U.S. v. Anderson, 987 F.2d 251 (5th Cir. 1993)
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United States v. Andrade - F.3d - (1st Cir. 1998)
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U.S. v. Arce, - F.3d - (5th Cir. 1997)
In this case the court upholds the conviction of the defendant
for possessing machine guns and unregistered silencers. The
court decides that the NFA is not a taxing statute, but can also
be justified on the power to regulate interstate commerce, thus
the fact that the NFA both precludes registration of existing
NFA guns, and punishes non-registration, is just fine, citing
their Ardoin case. The court also upholds
upward sentencing departures for having made NFA weapons, and for having made
a video describing how to make silencers out of junk and crap
from the hardware store, and for claiming on the tape that the
defendant was a licensed NFA manufacturer.
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U.S. v. Ardoin, 19 F.3d 177 (5th Cir. 1994)
Ardoin is a silly case. The main point of it is that the 5th
circuit decided that the 10th was wrong, in Dalton,
and that the
making ban (922(o)) does not preclude a prosecution under the NFA
for possessing a post-may mg. In this case Ardoin was a class 3
who made several post May mg's for a local PD, on Form 10. He
apparently had possession of the guns although they were registered
to the PD, as he was a deputy or officer or like thing. ATF
prosecuted him, claiming the guns could have and should have been
made on a form 1; for possessing untaxed mg's. This despite the
fact that ATF had sent out a memo that no longer would mg's be
registered on form 1, after the making ban, they wanted them on
form 10's. ATF agents lied on the stand and claimed the memo
didn't exist, Ardoin couldn't scrounge up a copy till after the
trial. A real travesty. Anyway the main thrust of the case was
that these guns were for a PD, not Ardoin, and that he let his
class 3 lapse (for like two months, I suspect ATF screwed up his
renewal, intentionally or otherwise) and thus was an individual in
possession of post-May guns, not taxed and not registered to him.
The court claimed that he could pay the tax and register the guns,
even though 922(o) precludes ATF from accepting them from him. The
court just claimed that wasn't true, that interpretation of the law
was wrong. The upshot is that between the lies and total
retardation as to the law on the part of the court, Ardoin is in
the can. I urge class 3 dealers to reconsider possessing post-May
mg's. If your SOT lapses for any reason at all, apparently, you can
and will be prosecuted. Cheap shooters maybe, but clearly a
problem in the current environment. It seemed Ardoin wanted cheap
shooters, and he got the chief of police to agree to his making the
guns and keeping them, as cheap shooters, while they were nominally
registered to the department. The supreme court refused to review
this case, despite the lies,and despite the conflict with the 10th
circuit Dalton case.
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U.S. v. Bailes, 10 F.Supp.2d 607 (S.D.W.Va. 1998)
In this case the judge throws out a charge of possessing a firearm while
subject to a domestic violence restraining order, since the judge finds
that the order was revoked by operation of West Virginia law when the
judge that made the order modified the divorce orders. The judge also
refuses to permit the government to base its case on a second
restraining order, since that order was not listed in the indictment,
and because the constitution only permits trials on indictments from
grand juries, and the government may not alter them halfway through
trial after finding they cannot support the charge they got from the
grand jury.
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U.S. v. Bailey, 123 F.3d 1381 (11th Cir. 1997)
In this case the 11th circuit affirms convictions of a gun
dealer for mail fraud, and dealing without an FFL, and possessing
unregistered NFA weapons. The dealer had his license on premises
which he didn't actually use for his business, and instead did his
business from his home, which was not his licensed premises. He also
cheated two customers on the sales of machine guns. He also made orders
to H&K for police guns, which he intended to sell to private
persons, even though they were ordered as government sales, and thus
were FET exempt. Lastly, when his house and storage locker were searched
unregistered machine guns and grenades were found. The court rejects
arguments that ATF agents perjured themselves while testifying, although
one clearly testified falsely, and rejected arguments that the government
failed to reveal government witnesses were informants, and failed to
turn over evidence in their possession.
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U.S. v. Baker, 197 F.3d 211 (4th Cir. 1999)
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U.S. v. Balanga, - F.3d - (8th Cir. 1997)
In this case the court of appeals upholds the defendant's
conviction for possessing firearms and ammunition as a
felon, where the guns and ammo were found in a locked
basement room of the defendant's house. He contended he
didn't have access to the room, and thus wasn't in "possession"
of the items. While the court agreed that if he really didn't
have access to the guns he wasn't in possession, the court and
jury apparently didn't believe he really didn't have access
to the basement room - perhaps because it had the washer and
dryer in it, including his laundry.
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U.S. v. Barno, 340 F.Supp. 1326 (D.D.C. 1972)
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U.S. v. Barr, 32 F.3d 1320 (8th Cir. 1994)
In this case the 8th circuit looks at the mens rea
required for a conviction for possessing an unregistered NFA weapon
(sawed off shotgun) in the post-Staples
era. The court however
severely limits Staples, saying the
jury need only find the
defendant had seen the weapon, and knew its characteristics, in a
situation where the weapon is does not appear to be a traditional
sporting weapon, and is a "quasi suspect" weapon. They claim that
applies, based on Staples, and that
the state need not prove the
defendant knew of the characteristics of the weapon which brought
it under the NFA (in this case the short barrel and overall
length). This severely limits Staples,
almost to its facts, to
cases where the gun appears ordinary (like an AR?). This is what
happens when lower courts think the Supremes made a mistake, they
try and undermine the decision as much as possible, knowing the
court in unlikely to review their interpretation.
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U.S. v. Bascue, 5 F.Supp.2d 1139 (D.Or. 1998)
In this case the trial court refuses to set aside the defendants
convictions for possessing unregistered machine guns, and transferring
unregistered machine guns. The defendants apparently made MAC style gun
frame flats into guns. They claim here that the flats were required to
be registered by the seller, and not by them, as well as that their
lawyers did a crummy job. The court says the testimony shows the flats
did not need to be registered, and that the lawyers did an acceptable
job.
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U.S. v. Bayles, Case No. 2:00CR424K (D.Utah December 5, 2000)
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U.S. v. Beal, 810 F.2d 574 (6th Cir. 1987)
This case applies the szymkowiak rationale
to some "pen guns" seized during a search for other items. Again, as the
contrbanad nature was not obvious, the court ruled the warrantless
seizure was not permitted under the "palin view" exception to the
4th amendment, and the pen guns were not admissible in court, killing
the whole case. The sole suspicion about the pens was their
weight, far heavier than ordinary pens.
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U.S. v. Beason, 690 F.2d 439 (5th Cir. 1982)
In this case the 5th circuit upholds a conviction for possessing
unregistered, homemade, hand grenades. The court decides that the
government does not have to prove the grenades are not designed as
weapons, or that they are not likely to be used as a weapon, as
an element of the offense, the defendant may raise those exceptions
to the definition as affirmative defenses. The court also upheld the use
of authenticated reports from the custodian of the NFA Registry
as proof of non-registration of the grenades.
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U.S. v. Beavers, 206 F.3d 706 (6th Cir. 2000)
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U.S. v. Benner, 289 F.Supp. 860 (D.Or 1968)
In this case the trial court decides that there is not a self
incrimination problem with a prosecution under the pre-68 NFA for
possessing a firearm made in violation of the NFA, even if the defendant
is the one that made the firearm. This decision was reversed and
remanded by the 9th circuit (see below.)
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U.S. v. Benner, 417 F.2d 421 (9th Cir. 1969)
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U.S. v. Bess, 593 F.2d 749 (6th Cir. 1978)
In this case the court reverses a conviction for retaining scrap metal
belonging to the government after being informed it was stolen. While
the court finds that the facts could justify such a finding - the
defendant scavenged at a military base open to the public, and didn't
return all of the scavenged metal after being asked by the FBI to do
so. However, as the US Attorney made improper statements to the jury
aobut his personal beliefs that the defendant was guilty, the court
reversed the conviction for a new trial.
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U.S. v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996)
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Motion from 5/31/90 in
U.S. v. Billistics, Inc., No. N.90.25(EBB)
Resulted in an 6/5/90 order.
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U.S. v. Billistics, Inc., No. N.90.25(EBB) (D.Conn. June 5, 1990)
First very brief order resulting from
5/21/90 motion directing the ATF to
return a number of guns seized in a raid of Billistics in 1989, to
the registered owners; I guess the guns were at Billistics for
repair or something, and were seized as not registered to them.
Anyway the court directs their return.
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Motion from 6/18/90 in
U.S. v. Billistics, Inc., No. N.90.25(EBB)
Resulted in 6/19/90 order.
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U.S. v. Billistics, Inc., No. N.90.25(EBB) (D.Conn. June 19, 1990)
Resulting from 6/18/90 motion.
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Motion from 12/19/91 in
U.S. v. Billistics, Inc., No. N.90.25(EBB)
Resulted in 12/23/91 order.
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U.S. v. Billistics, Inc., No. N.90.25(EBB) (D.Conn. December 23, 1991)
Resulting from 12/19/91 motion.
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U.S. v. Birmley, 529 F.2d 103 (6th Cir. 1976)
This case is most notable for the 6th circuit
saying that Congress need not have done the NFA, they could have,
consistent with the 2nd amendment, and the enumerated powers of the
Constitution, banned the transfer of NFA weapons altogether. This
case is from 1976. Such a thought is relevant to whether 922(o) is
an appropriate exercise of Congressional power, as in the Bownds
case.
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U.S. v. Black, 431 F.2d 524 (6th Cir. 1970)
In this case the court rejects the argument that a prosecution for
possessing an unregistered NFA firearm under the post-1968 NFA violates
the defendants right against self incrimination. The court notes that
the offense does not call for registration, and in fact the defendant
cannot register the firearm whether he wants to or not. He does not
have a choice between registering the gun and incriminating himself for
possessing it, or possessing it and being prosecuted for failing to
register it, as defendants did under the pre-68 NFA.
See also Kilcrease v. US
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U.S. v. Bosse, 1989 WL 95451 (9th Cir. 1989)
In this unpublished 9th circuit court of appeals decision, the court
affirms a trial court decision throwing out a sawed off shotgun seized
from the defendant, because the ATF agent that obtained the search
warrant lied to the magistrate to get the warrant issued. The appeals
court finds that the ATF agent lied about the contents of a conversation
with an undercover agent, and further finds that the agent deliberately
omitted facts from the search warrant affidavit that would have
suggested that the defendant did not commit the claimed violation, facts
which were known to the agent when he made the application.
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U.S. v. Bostic, 168 F.3d 718 (4th Cir. 1999)
In this case the 4th circuit court of appeals upholds the conviction of
a man for possessing firearms while subject to a domestic violence
restraining order. The court decides that law is constitutional.
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U.S. v. Bownds, 860 F. Supp 336 (S.D. Miss. 1994)
This case comes
from the lowest federal court, the District court. It can
therefore be appealed to the 5th Circuit court of Appeals, should
the government want. And is being so appealed. And from there is
could go to the US Supreme Court. Charles Bownds purchased two
STEN machine guns and parts at a gun show in New Jersey in 1991
($300, must have been parts kits or something...), and sold them in
Miss. in the same year, at a profit. He argued that as Congress
made no finding of any interstate commerce nexus in just banning
post 1986 machine guns in 18 U.S.C. 922(o) the clause was void,
under the Tenth amendment, as beyond the power of Congress. The
court agreed, relying heavily on the 5th Circuit opinion in
U.S. v. Lopez where that court voided the Gun Free
School Zones Act, an
opinion which is now under appeal to the Supreme court. If Bownds
made a 2nd amendment argument, the court did not address it.
The opinion notes that the 5th Circuit has not followed the
10th Circuit (in US v. Dalton) in finding that 922(o)
impliedly
repealed the NFA registration and tax requirements. This was also
the holding in the Rock Island case, which the
government elected
not to appeal. Thus, unless the ruling was stayed during appeal,
persons in the area comprising the Southern District of Mississippi
may lawfully make machine guns for private ownership, while
complying with the requirements of the NFA.
The opinion also notes that both the 8th Circuit and 9th Circuit
have upheld the constitutionality of 922(o). This opinion flies
directly in the face of those, and assuming the 5th circuit upholds
this, it is very likely the Supreme Court would hear the case.
Otherwise, if the 5th Circuit upheld it, one could make legal
machine guns in Miss., La. and Texas, and not in the rest of the
US...
This is a very exciting case, in my opinion, if it holds up,
the 1986 ban will be voided, and there will be a court decision
that such a ban is beyond the power of Congress under the
Constitution.
As a footnote, I believe this case will come out in favor of
the constitutionality of 922(o), as the 5th circuit has already
ruled that way, after this case was decided, in
US v. Kirk.
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U.S. v. Boyd, 211 F.3d 1279 (table) (10th Cir. 2000)
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U.S. v. Bradley, 892 F.2d 634 (7th Cir. 1990)
In this case the court decides that the defendant was properly
convicted of transferring a set of parts to convert a gun into
a machine gun. He transferred a pre-11/81 drop-in AR auto-sear,
a M16 selector, disconnector, trigger and hammer. A few weeks later
he sold the same person a M16 bolt carrier, allegedly as part
of the same transaction. The court decided that all 6 parts
were a machine gun under the statute, and he didn't escape the
purview of the NFA by breaking up the transaction that way. He
argued the set of parts was exempt because the auto-sear was from
before 11/81, when ATF ruled the sear in itself was a conversion
part. The court said that just because the sear in itself wasn't
covered didn't mean the sear with all the other parts wasn't covered,
it was.
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U.S. v. Brady, 710 F.Supp. 290 (D.Colo. 1989)
In this case Brady is charged with possessing an
unregistered AOW weapon, a coyote getter. The coyote
getter is sort of like the "Game Getter" guns of the
pre-1934 era, except that it is very lightly constructed,
as it only uses a primed .38 special case to fire a
cyanide capsule into the mouth of the animal tugging
at the bait. The old game getter type guns fired a
real bullet, to kill the animal.
As even the ATF expert was too cautious to fire the gun
with a real round of ammo, the court decides the thing
is not an AOW, as while it is strictly speaking capable of
discharging a shot (a primed .38 case with a bullet, the bullet
went a few feet), it is not capable of using regular ammo.
The court points out that in a number of old Revenue Rulings
ATF ruled based on whether the device in question could use
conventional ammo. Without requiring that the thing be able
to do so, without suffering structural failure, would bring
a whole host of items under the definition, says the court, like
a hammer and nail. Things no sane person would use to fire
a shot should not be considered capable of doing so, even if they
theoretically can, says the court.
The court also acquitted the defendant of being a felon in
possession of a firearm, as the defendant was told at his
sentencing on the prior felony that he could possess a gun as part
of his trapping and hunting livelihood. The court says that while
he legally could not, the government was estopped from charging
him because of his justifiable reliance on legal advice from the
sentencing judge.
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U.S. v. Branch, 91 F.3d 699 (5th Cir 1996)
This is an appeal from the criminal prosecution of some
of the surviving Branch Dividians, from the shootout
with ATF that started the seige there, and for making
machine guns and grenades before hand. The court upholds
nearly all aspects of the defendants convictions.
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U.S. v. Brantley, 68 F.3d 1283 (11th Cir. 1995)
In this case several people who were induced by an ATF
informant to rip off an ATF run "crack house" were convicted
of various gun and drug charges. The court reversed a charge
of possessing a machine gun, since it was a converted (open
bolt most likely) M-10 pistol, and there was no evidence the
guy knew it would fire full auto. But it upheld the sentencing
enhancement (30 years max, potentially) for carrying such a gun
in a crime of violence, saying that as a sentencing enhancement
to another crime the principles of
Staples did not apply, and
strict liability was acceptable for one who had already committed
a crime.
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U.S. v. Breeland 53 F.3d 100 (5th Cir. 1995)
This case concerns a guy
busted for having a short barreled shotgun that wasn't registered
to him. This case addresses an issue that has come up before, as
the court notes, how the definition of a short barreled shotgun, an
NFA weapon, and shotgun interact. A shotgun is a shoulder fired
weapon, the defendant contended that the weapon in question wasn't
a short barreled shotgun because it wasn't a shotgun, because it
now had a pistol grip as well as short barrels, even if it used to
be a shotgun. Basically the question is what does the language
about guns made from shotguns mean in this context? The court
decides, as common sense might dictate, that a short barreled
shotgun, by the plain language of the definition, can either be a
shoulder fired smooth bore with barrel(s) less than 18", or an
overall length less than 26", or a weapon made from a shotgun (ie
no longer shoulder fired, or at least meant to be) falling into the
same length parameters. This is why you cannot make an AOW out
of something that used to be a shoulder fired type smooth bore gun;
because the definition was drafted to avoid what Breeland was
asserting also meant a smooth bore pistol, an AOW, cannot have ever
been a shoulder fired gun, or it is then a weapon made out of a
shotgun, and thus a short barreled shotgun.
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U.S. v. Bright, 471 F.2d 723 (5th Cir. 1973)
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U.S. v. Brimage, 115 F.3d 73 (1st Cir. 1997)
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U.S. v. Britton, 306 F.Supp. 94 (S.D.Tx. 1969)
In this case the district court rejects a suggestion that a charge of
possessing a sawed off shotgun w/o a serial number violates the right
against self incrimination, since the law says that ATF has to assign
the gun a new serial number.
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U.S. v. Brooks, 611 F.2d 614 (5th Cir. 1980)
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U.S. v. Broom, 742 F.Supp. 574 (D.Colo. 1990)
In this case the court upholds the seizure of non-contrband books
and guns, during a search with a warrant for some contraband guns
(machine guns). The court decides that the agent was objectively
reasonable in thinking the guns, which were supposedly in plain view,
might be contrband, and should be seized for further evaluation.
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U.S. v. Broussard, 80 F.3d 1025 (5th Cir. 1996)
In this case, among other issues, the court decides that the
sentencing enhancement for possession of an otherwise legal firearm
with drugs does not chill any right to bear arms. The court decdied
that the 2nd amendment would not apply to private possession of
firearms, and further that there was no right to own guns in the
9th amendment reservation of rights.
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U.S. v. Brown, 438 F. Supp. 1002 (D.Conn 1977)
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U.S. v. Brown, 548 F.2d 204 (7th Cir. 1977)
In this case a Chicago shop owner is convicted of
possessing an unregistered short shotgun, apparently
based on a tip from the street gang he got the shotgun
to protect himself from. The court in unsympathetic.
ATF, of course, assists the gang in continuing to run
amok. The court decides that the fact that the transferee
cannot register the gun is not a defense, and that somehow the
NFA has an unwritten duty imposed on transferee's to insure
that the transfer of possession is legal. Additionally
the court holds that a requested jury instruction on jury
nullification was properly denied, as a suggestion to the jury
to disregard the judge's discussion of the law and the jury's
duty to follow same is improper. The court suggests that if
the street gang theory is true (the trial judge refused to let
it be discussed, or to force ATF to identify the informant who
reported the defendant's possession of the gun) it is not a defense
to the charge. He should have gotten a firearm not subject to
the NFA, or gotten a registered example, they say.
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U.S. v. Bryan, 122 F.3d 90 (2d Cir. 1997)
Hey, the defendant's nickname is "Uzi"...
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U.S. v. Bumphus, 508 F.2d 1405 (10th Cir. 1975)
In this case decided under a now repealed felon in possession statute 18
USC 1202, the court decides that the defendant need not have obtained
the firearms he is accused of possessing in interstate commerce, as long
as the firearms traveled in intersstate commerce at some point in the
past, even before he possessed them. His possession can be totally
within one state and still violate the statute.
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U.S. v. Burgard, 551 F.2d 190 (8th Cir. 1977)
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U.S. v. Butler, 793 F.2d 951 (8th Cir. 1986)
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U.S. v. Caldwell, 49 F.3d 251 (6th Cir. 1995)
This is a case from the 6th circuit as to
whether dealing off premises when one has an FFL is illegal. The
court says no, at least it cannot be "dealing w/o a license". If
a person has an FFL, they have an FFL, and can never be unlicensed
regardless of where they are dealing from. Theoretically dealing
from premises other than those on the license is a violation of
other parts of the GCA though.
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U.S. v. Campbell, 427 F.2d 892 (5th Cir. 1970)
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U.S. v. Canestri, 518 F.2d 269 (2nd Cir. 1975)
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United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997)
In this case the 1st circuit upholds the ban on trasferring handguns to
juveniles, following the 9th circuit (see
US v. Michael R). The court
claims that there is a substantial effect on interstate commerce by
juveniles possessing handguns, and congress can ban intrastate transfers
to control those interstate effects, whatever they are. The challenge
was of course based on the orphaned
US v. Lopez supreme court decision.
The court also upholds a 20 year prison sentence for that offense and
for possessing a single round of 9mm ammunition by a felon, based on the
defendant's prior record.
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U.S. v. Carney, 356 F.Supp. 855 (M.D.Tenn. 1973)
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U.S. v. Caron, 77 F.3d 1 (1st Cir. 1996)
In this case the 1st circuit decides that for a felon to be considered
to have had his civil rights restored under state law after a state
felony conviction, and thus be able to own a gun, an automatic
restoration of his civil rights by state law will suffice.
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United States v. Cash, 149 F.3d 706 (7th Cir. 1998)
In this case the court upholds the defendants' conviction for
transferring unregistered drop in sears. The court rejects the
defendants arguments that the sears could have been made before the
sears were classified as machine guns, i.e. "pre-81 sears", saying that
it is still illegal to transfer even pre-81 sears. The court also
decided that the odds that these sears were pre-81 was very remote,
given the low price they sold them for, and the clandestine manner in
which they sold them.
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U.S. v. Casson, 288 F.Supp. 86 (D.Del. 1968)
In this case the disctrict court decides that a charge under
the pre-68 NFA of possessing a short shotgun made in violation
of the Act does not require one to incriminate oneself, so that
the logic of the Haynes case does not apply.
The court does note
that if one was already suspected of criminal activity requiring
one to register one's guns, even before they were "made" might
be self incrimination, but the court said that danger
was remote and not very realistic.
The court also notes in a few sentences that the second amendment
was no protection from the prosecution.
-
U.S. v. Castillo, 179 F.3d 321 (5th Cir. 1999), cert.
granted - U.S. -, (2000)
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U.S. v. Catanzaro, 368 F.Supp. 450 (D.Conn. 1973)
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U.S. v. Cecil, 457 F.2d 1178 (8th Cir. 1972)
In this case an underage member of the Black Panthers was guarding
the door to their house in Omaha, NE, with a sawed off shotgun. When
the cops came by he was caught and arrested. Apparently the cops used
him as a human shield while clearing the rest of the house...
Anyway, the main point of interest in this case is whether the mere
sight of a sawed-off shotgun provides probable cause of a crime such
that you can be arrested, or whether the police have to also think the
gun is unregistered in order to arrest you. After all, registered
possession is not a crime. The court holds that the gun itself provides
all the probable cause, and the police need do no investigation as to
the registration status before they may arrest one in possession of such
a gun. This of course is bad news for owners of legal guns, who may not have
their paperwork on them when they have the gun. The dissent makes
just that point, and says that checking the registration status
is not such a burden as to waive such a requirement. The dissent sort
of dilutes its point by suggesting the police could be made aware of
who owns legal NFA weapons in their jurisdiction, to solve the problem.
Such a scheme was done away with in the 1968 revisions of the NFA, because
making the tax records open to the public created 5th amendment self
incrimination problems with the registration plan. The dissent also
notes, without citing any authority, and I thought ATF didn't have
this sort of info until after 1980, that approximately 15000 short shotguns
are registered, "most of which are registered to governmental agencies
for training purposes, or to residents of Western states." Interesting.
Those darn Westerners.
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U.S. v. Cerri, 753 F.2d 61 (7th Cir. 1985)
In this case the 7th circuit upholds the validity of an administrative
search of the home of a gun dealer under the Gun Control Act. While the
home was not the licensed premises, the home was where the dealer was in
fact dealing from. As it was the premises in fact, the court decided
the ATF could conduct an administrative search of the entire home.
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U.S. v. Chamberlain, 159 F.3d 656 (1st Cir. 1998)
In this case the 1st circuit court of appeals decides that a 5 day
involuntary commitment to a mental institution without due process under
Maine law suffices to disqualify one from oever owning a firearm, under
the firearms disability for persons adjudicated mentally defective or
committed to a mental institution.
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U.S. v. Clements, 471 F.2d 1253 (9th Cir. 1972)
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U.S. v. Coleman, 441 F.2d 1132 (5th Cir. 1971)
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U.S. v. Combs, 762 F.2d 1343 (9th Cir. 1985)
This case is the prosecution of a guy for putting a SMG length
barrel on his Uzi semi auto. He gets acquitted of making the gun
in violation of the NFA because the judge at trial messed up. But
he got convicted of possessing the unregistered NFA weapon. He
had been "rapid-fire" shooting with some buds and someone called
the cops.
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U.S. v. Cooper, 409 F.Supp. 364 (M.D.Fla. 1976)
In this case the court decides that the warrantless seizure of the
defendant's FFL acquisition and disposition logbook was a proper
exercise of the ATF authority to conduct warrantless "administrative"
inspections of FFL dealers records and firearms.
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U.S. v. Copus, 93 F.3d 269 (7th Cir. 1996)
In this case a fight the defendant got into with his wife turned
out to be a bummer. He called the cops; they discovered part of
his homemade machine gun/silencer/grenade collection. He was convicted,
and the appeals court let the convictions stand. The court decides
that, following their case of US v. Kenney,
that 922(o) is a valid
exercise of Congressional power; that the convictions under the NFA
are not affected by 922(o); he did not show legal making of silencers
or DD's was absolutely prohibited, such that ATF will not accept the
tax on such items. He didn't show that because it isn't true. The
court also upheld the determination that his "detonators" were DD's,
in that they were complete, and could be used as a weapon. The court
rejected cases looking at the defendant's intent in possessing a fully
assembled item to see if it was a weapon. They would apply such a
standard to a DD "parts kit"; ie unassembled, but complete, but not
to a completed device.
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U.S. v. Corso, 20 F.3d 521 (2nd Cir. 1994)
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U.S. v. Cosey, 244 F.Supp. 100 (E.D.La. 1965)
This case is a counterpart to US v. Thompson,
which found that
a sawed off shotgun that was not in shootable condition due to
the lack of a firing pin was not an NFA weapon. In this case the
court finds that a sawed-off shotgun that lacks a firing pin is
an NFA weapon, since the firing pin can be substituted for
by a nail. Although it was left to the jury, a similar conclusion
was reached under the Colorado state law in
People v. Vigil.
The court distinguishes Thompson by saying in
that case no one
tried to use the gun with a nail, if they had the result might
have been different. Theoretically both this case and
Thompson
were rendered obsolete by 1968 revisions to the NFA adding the "readily
restored" language to the definition of short shotgun and short
rifle.
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U.S. v. Coston, 469 F.2d 1153 (4th Cir. 1972)
-
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U.S. v. Coward - F.Supp.2d - (E.D.Pa. 2001)
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U.S. v. Cowley, 452 F.2d 243 (10th Cir. 1971)
In this case the defendant's conviction for possessing an unregistered
short shotgun (which the indictment mistakenly called a shotgun with
a barrel less than 16 inches, not 18, as it is in the law, although the
mistake meant nothing to the defendant) is upheld by the appeals court.
The defendant argued that because the law wouldn't let him register the
gun, it violated the due process and equal protection clauses of the US
constitution. The court, without much discussion disagreed; although this
was the essence of the argument the same circuit (the 10th) accepted as
to post 1986 machine guns in US v. Dalton - the
government couldn't
prosecute someone for failing to register or pay tax on a gun the
government could not accept tax or registration on. The defendant also
objected to the indictment calling the gun a 12 gauge, when the gun was
in fact a 20 gauge shotgun. The court rejected that objection, saying
it didn't interfere with either the attachment of jeapordy as to a
second charge based on that gun, nor prevent the defendant from knowing
what gun he was being charged with possessing. As a side note, this case
was prosecuted by the feds, in all likelihood, because New Mexico had
no state law prohibiting possession of short shotguns (or any NFA weapon)
at this time. As the case notes, there was a city ordinance against short
shotguns for which the defendant was first arrested, but in all likelihood
the penalties for violating that law are fairly light.
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U.S. v. Cowper, 503 F.2d 130 (6th Cir. 1974)
In this case the court upholds the conviction of a Cleveland police
officer who made an unregistered M2 carbine. The court decides that
the government did not have to prove that he knew the gun would
fire automatically, in order to convict him. This holding was overruled
a number of years later, in
US v. Staples, although not as to
this particular case.
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U.S. v. Cox, 696 F.2d 1294 (11th. Cir. 1983)
This case concerns Roger Cox the guy who wrote one of
the Thompson MG books out there. He was convicted of making false
statements on an import permit for DP type machine guns he brought
in from Guatemala. He said the guns were made in Guatemala, the
gov't thought they were made in Russia, and further thought he knew
that. I think the reason to lie would have been that ComBloc guns
were basically blocked from import at the time. The case is from
1983, but it says he first went to look at the guns in 1971, and
doesn't say when the importation, or prosecution happened. In any
case it is an interesting story of what happens when the gov't
appears to have a grudge. Dr. W told me he understands that Cox
later was pardoned, or otherwise got his conviction nullified, and
is now a lawyer. Some people never learn, I guess. Oh I believe
the Ed Faust of Sacramento, CA, mentioned as helping to bankroll
this importation is the guy who runs ARMEX International.
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U.S. v. Craven, 478 F.2d 1329 (6th Cir. 1973)
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U.S. v. Cruz, 156 F.3d 22 (1st Cir. 1998)
In this case the court upholds a conviction for possessign an
unregistered sawed off shotgun, based on testimony from someone who
helped the defendant saw it off, and based on the fact that it was shown
to have originally been a regular shoulder stocked shotgun, and that it
was not registered to the defendant, a drug dealer.
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U.S. v. Cumbee, 84 F.Supp. 390 (D.Minn. 1949)
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U.S. v. Cunningham, 161 F.3d 1343 (11th Cir. 1998)
In this case the 11th circuit court of appeals uphold the ban on persons
subject to a domestic violence restraining order possessing firearms,
against a claim that it is outside Congress' interstate commerce power.
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U.S. v. Currier, 621 F.2d 7 (1st Cir. 1980)
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U.S. v. Dalpiaz, 527 F.2d 548 (6th Cir. 1975)
In this case the defendant was caught with a military artillery
simulator device as he tried to get on a plane. Hard to say what
he thought he was doing. The case addresses whether the device is
a "destructive device", and concludes it is not. The court agrees
it has over .5 ounce of explosive or incinciary powder in it, and
thus could be a DD. But the court decides that the thing was
neither designed nor redesigned as a weapon, but was made as a training
device for the military, and had not been modified in any way from
that configuration. The court says they think that while the government
need not prove the thing was intended as a weapon, that the
defendant's intent as to the device is not important. Only the
device itself will indicate whether it is a weapon or not.
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U.S. v. Dalton, 960 F.2d 121 (10th Cir. 1992)
This is the case where the 10th circuit decided that the ban on owning
post May 1986 mg's meant that a person could not be prosecuted for
violating the NFA for possessing such a gun. An NFA violation is
a failure to pay the tax, or comply with the registration
procedures. As ATF won't and can't accept the tax or registration
from an individual on a post-May gun, they cannot prosecute folks
for not paying the tax. 922(o) impliedly repealed the NFA, at
least as applied to post May guns. Incidentally, for those who
care about the facts, Dalton was a Colorado attorney who accepted
a converted "P.W.A. Commando 5.56 millimeter machine gun, serial
number 6671", from a client as a retainer, the gun never having
been registered, and having been made after 5/19/86.
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U.S. v. Dalton, 990 F.2d 1166 (10th Cir. 1993)
In this case the 10th circuit decided Dalton could be re-charged with
violating 922(o) by possessing a post-May mg, after the charges
under the NFA were thrown out by Dalton 1. After
someone asked,
I checked and after two trials on the 922(o) charge, one ending in
a hung jury, the other ending in a conviction that was reversed on
appeal, the US attorney let Dalton plead guilty to a misdemeanor
violation, 18 USC sec. 922(n).
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U.S. v. Dalton, 795 F.Supp 353 (D.Colo. 1992)
This is the district court decision that was reversed
in Dalton2. I include it because I think the
judge was right, Dalton should not have been re-prosecuted, and because it
includes facts on the case not in the other opinions.
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U.S. v. Daniels, 527 F.2d 1147 (6th Cir. 1975)
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U.S. v. David, 83 F.3d 638 (4th Cir. 1996)
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U.S. v. Davis, 346 F.Supp. 405 (W.D. Penn. 1972)
In this case the defendant is acquitted of possessing an unregistered
sawed off shotgun. It was in a car he had borrowed, and was pulled over
in. The judge decides that while the law requires no knowledge the
gun is unregistered, there must be some evidence linking the defendant
to the gun to support a conviction for possession. In this case the
fact that he was in the car with it, sitting on the seat it was under, was
not enough, given the circumstances tending to show he didn't know about
it.
-
U.S. v. Davis, Cr. No. 8:93-106, Report of Magistrate,
(S.C.Dist.Ct. June 21, 1993)
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U.S. v. DeBartolo, 482 F.2d 312 (1st Cir. 1973)
This is the case that started the idea, only refuted in
Staples, that the government
need not prove the firearm
at issue in an NFA prosecution was known to the defendant to
be the type covered, but only was a "gun" in the general
sense. As might be expected their logic is not too convincing,
and seems to be partly the product of an era that was hoping
guns would soon be outlawed altogether. The court decides, like
the misdemeanor penalties for shipping unlabeled acid, the 10
year sentence for possessing a sawed off shotgun was justificable
without proof the defendnat knew the gun was sawed off, because
shotguns, like acid, are dangerous instruments, and a reasonable
person would know they were regulated by the all powerful, and
all reaching, state. Really. The court chooses an interpretation
of dicta in the acid case, rather than the language to exactly
the opposite rule, in Freed, because it
disliked that interpretation
of the NFA law. And this logic was followed by nearly every court
of appeals for 20 years, resulting in hundreds of persons with no
criminal intent being sent to jail. This court believes that by
choosing to handle a gun, they led to that result, and prudent people
would know they could go to jail for 10 years if the barrel of the
shotgun they helped to sell was less than 18 inches.
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U.S. v. Decker, 292 F.2d 89 (6th Cir 1961)
This case concerns whether a tear gas "pen" is an Any Other Weapon,
under the NFA. The court decides that it is, as it could also
fire a .410 gauge shot shell. Part of that test, says the court,
is whether it can survive such a test, as well as whether it is
capable of doing it once.
The court also decides that the government need not prove the
defendants knew the gun was capable of shooting real ammo, as well
as tear gas, which made it subject to the NFA. Another holding
overruled by Staples.
This court also incorrectly cites Sonzinsky for
the proposition
that the Supreme court has passed judgment on the constitutionality
of the non SOT provisions, and particularly, that requiring the
defendant satisfactorily explain his possession of an NFA weapon, or
have mere possession be sufficient for a jury to convict, is not
too vague a standard. This clause was removed when the Act was
revised in 1968; no explanation is solicited any more, although a
defendant can still testify on his own behalf.
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U.S. v. Decker, 335 F.Supp. 1168 (W.D.Mo. 1970)
In this case the court upholds the conviction of the defendant for
selling firearms to out of state residents, and for selling handguns
without requiring a permit required by state law for handgun purchases.
ATF went to the defendant and got him to sell them handguns and so on
pretending to be out of state residents, when in fact they were state
residents.
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U.S v. Decker, 446 F.2d 164 (8th Cir. 1971)
In this case the appeals court affirms a conviction of a firearms dealer
for selling firearms to out of state residents, who also didn't have a
permit required by state law to acquire a handgun.
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U.S. v. Della Rocca, 388 F.2d 525, judgment vacated 88
S.Ct. 1443 (1968)
In this case the court upholds the defendants conviction for selling an
undercover agent a machine gun. The court decides that the registration
provisions of the pre-68 NFA at issue do not violate the self
incrimination clause of the constitution, even though NY law prohibited
private posssession of machine guns. The case was reversed by the
Supreme Court based on its decision in the
Haynes case.
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U.S. v. DePugh, 266 F.Supp. 417 (W.D.Mo. 1967)
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U.S. v. DePugh, 266 F.Supp. 435 (W.D.Mo. 1967)
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U.S. v. DePugh, 266 F.Supp. 453 (W.D.Mo. 1967)
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U.S. v. Dewalt, 92 F.3d 1209 (D.C.Cir. 1996)
This is another case that sort of addresses the issue raised in
a host of post-Staples cases -
whether the defendant needs to know the
barrel of a sawed-off shotgun is less than 18 inches. In this case
the government stipulated that that was an element, agreeing with
Edwards, Starkes,
and Mains, and rejecting the
Barr case. However the court
notes that it does not necessarily agree with that reading of
Staples,
and the dissent attacks that logic. As the defendant was not told, the
government needed to prove he knew the barrel was under 18 inches, (it
was 16 1/4 inches; a 16 gauge J.C. Higgins bolt action shotgun, perhaps
cut by someone misinformed about the differing lengths for shotguns and
rifles) the guilty
plea of the defendant was reversed, and the case can go to trial, or
doi another guilty plea. The fact that the defendant appealed suggests
he no longer wants to plead guilty. The dissent tries to pretend
Starkes wasn't remanded by the Supremes for
the issue of whether the
defendant knew the barrel was under 18 inches, but whether the gun
in that case was a sawed off shotgun. What the difference is isn't clear.
Starkes is important because the remand suggests the court thinks
that Staples requires the prosecution to show the defendant knew the actual
characteristics of the gun that brought it under the Act. The dissenting
judge would just have the prosecution show the defendant saw the barrels
were short; what the legal limit is doesn't count. It could have been
set at 20 inches, she says in a footnote; anything under 26 inches
she suggests has no legitimate use. She is also seriously misinformed
about how short shotugns work, pattrn wise, and apparently took judicial
notice about the destructive power cause by a short barrel (as opposed to
a short overall length, which she suggests is less evil; the gun in this
case was 29+ inches, but that it was so long, over the overall length
parameter does not sway her) without any basis in reality. She claims the
evil was the tremendous power of a sawed off shotgun, and the spread to
the shot, not a concealable firearm made from a long gun, flouting the
laws of the states that repressed handguns at the time.
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U.S. v. Dillon, 150 F.3d 754 (7th Cir. 1998)
In this case the court upholds a conviction for lying on a 4473 form, on
a firearm purchase from a licensed dealer.
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U.S. v. Djelaj, 842 F.Supp. 278 (E.D.Mich. 1994)
In this case a federal trial court rejects the application of
the Dalton doctrine (it is unconstitutional to convict a defendant of
possessing an unregistered weapon, when the feds would never, by law,
accept a registration application for the gun) to molotov cocktails
possessed by Michigan residents. While the feds would have refused to
register the weapons, because Michigan forbids possession of such
items (and the feds would have rejected the application if the cocktails
were already made - a distinction the court seems unaware of, and presumes
existing weapons are registerable, under federal law) the defendants were not
in an impossible situation, since they could have avoided the law
by not possessing the molotov cocktails. However, it seems to me the
situation in this case is identical to Dalton. It is also identical if
the defendant possesses an existing gun, which is also unregisterable. If
the feds are forbidden, by any law, not just 922(o), from accepting a
registration on an NFA weapon, how can it be fair to prosecute them for
failing to register a gun the feds would not let them register? Either
Dalton is right, or it is wrong. However, even the 10th circuit, the
court that originated Dalton, rejected its application to an existing
short shotgun, in a second case, claiming that the requirement that
the person take possession, or make the gun, in compliance with the NFA
is acceptable, and the inability to register after the fact was too bad.
This is the same argument as this case, which rejects Dalton.
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Brief 1 in U.S. v. One DLO A/C 30.06 Machine Gun
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Brief 2 in U.S. v. One DLO A/C 30.06 Machine Gun
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Brief 3 in U.S. v. One DLO A/C 30.06 Machine Gun
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Brief 4 in U.S. v. One DLO A/C 30.06 Machine Gun
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Brief 5 in U.S. v. One DLO A/C 30.06 Machine Gun
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Brief 6 in U.S. v. One DLO A/C 30.06 Machine Gun
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U.S. v. One DLO A/C 30.06 Machine Gun, 904 F.Supp. 622 (N.D. Ohio 1995)
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U.S. v. Dodge, 846 F.Supp. 181 (D.Conn. 1994)
In this decision the trial court denies Dodge pre-trial release
on bail, finding that the charges of conspiracy to possess a
silencer and possession of an unregistered destructive device are
crimes of violence, and that, as well as other factors means the
defendant poses a danger to the public if released before trial.
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Claim of Louis Katona, III to BATF.
See US v. One DLO machine gun
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Motion in civil forfeiture of firearms case
See US v. One DLO machine gun
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U.S. v. Dollar, 25 F.Supp.2d 1320 (N.D.Ala. 1998)
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U.S. v. Doucet, 994 F.2d 169 (5th Cir 1993)
In this case a guy was set up by his brother to
take a fall for possessing an unregistered machine gun. By the end
of the case the government thought they had a poor case and tried
to refocus their arguments to possessing a unregistered machine gun
conversion part (an AR auto sear, ATF got Doucet to install it in
an AR by having his brother beg him to do so, for the brother's
use). The court throws the conviction out, saying that while both
may be a "machine gun" under the NFA, the indictment must indicate
what definition(s) they are proceeding under, and may not switch
from it being an assembled machine gun, to a conversion part,
midway through the case. This has to do with the constitutional
right to be informed of the charges against you, by a grand jury
indictment. The court was also disgusted by ATF's use of the
brother to set up Doucet, although that was not the basis of their
decision.
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U.S. v. Douglas, 974 F.2d 1046 (9th Cir. 1992)
In this case the 9th circuit throws out a conviction for being a felon
in possession of firearms, as the defendant had a valid FFL, and was
disposing of his inventory and or personal firearms. The GCA provides a
specific exception for that activity, and therefore the defendant was
not a felon in possession at the time claimed. ATF claimed the
exception didn't apply because he was dealing in violation of his
license, by selling at an out of state gun show. The court said that
whether he was violating gun show sales rules or not, he had a FFL, and
that was all that mattered. ATF claimed he was violating the gun show
sales regs because he was selling through a local dealer, and delivering
the firearms in person to the out of state dealer, at the gun show. The
court noted in a footnote that there was no law or regulation that said
that was prohibited, and that dealing outside of the rules, as long as
one had an FFL, did not make it as if one did not have an FFL. See
US v. Caldwell for a similar holding, and
US v. Bailey for the rejection of
this idea, agreeing that dealing off of licensed premises was the same
as dealing w/o an FFL.
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U.S. v. Drasen, 665 F.Supp. 598 (N.D.Ill. 1987)
This is the trial court's decision that was overturned in part by
the 7th Circuit court of appeals. That dealt with the issue of what
constitutes a short barreled rifle, and that holding was upheld by
the Supreme Court in the
Thompson/Center case, although I
would tend to agree with the judge in this case. Interestingly, the 1950's
Revenue Ruling that both this case and the appeal hinge on was declared
obsolete and no longer valid by ATF in 1972. Neither court picked up
on that, although it is noted in the
T/C supreme court case. Pretty
unethical to be arguing law on behalf of the government that the
government repudiated....
However this opinion also deals with counts against the defendant
related to machine guns and machine gun parts, which were not
appealed to the 7th circuit. Specifically the issue of whether a
mini-gun "housing" was a receiver, whether a set of receive parts,
cut up, could be a machine gun receiver within the statute, and whether
the GE mini-gun is a machine gun or not. The court decides that the
sheet metal housing to a mini-gun is the receiver, and that the gut
up parts of one, even if they need welding, can be a receiver within
the statute, at least so as to preclude summary judgment on that issue.
The court also goes over the 1954 ruling as to when an electric Gatling
gun is not an mg, and apparently ATF was sticking to that, in 1987.
ATF said they would prove the housing was for a gas operated Gatling
gun, and not an electric one...so the court did not grant summary
judgment. It is conceivable that ATF considers the GE mini-gun to
be an mg not because it is an mg, but because the receiver and some
other parts can be used to make a fully auto, gas operated mg. In other
words, the GE mini-gun might be considered a semi-auto on an mg
receiver. I am not familiar with any rulings as to the mini-gun
in particular, but that seems to be the position they take in this
case. The court also decides that selling a conversion kit to one
person, is still covered, even if the parts are doled out over several
days, if the intent is there to sell a conversion kit, and not just
part of a conversion kit.
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U.S. v. Drasen, 845 F.2d 731 (7th Cir. 1988)
This case concerns whether an unassembled set of parts to make
a rifle out of can be a short barreled rifle under the NFA, if
the parts have never been assembled into a rifle. Basically the
issue is whether the definition covers it. Although the law doesn't
say that, the court decides it does. ATF has long argued, and been
bolstered by cases such as this, that an NFA weapon, that is not
otherwise defined as parts of such a weapon, is still one if
someone possesses all the parts to assemble it. They apply the same
logic to semi-auto "assault" weapons, and large capacity magazines.
This holding was not altered by the supreme court case in
Thompson/Center, which was similar
to this. In that case the court agreed
with this case, but distinguished the situation with
T/C in that the
parts had dual use, either for a legal gun(s), or for a SBR. In this
case the folks were selling the AR kits with short barrels and a
flash hider you were supposed to silver solder onto the end, or otherwise
permanently attach. Either that or register the thing as a SBR before
you put it together. Since the flash hider wasn't permenetly attached
they didn't count it toward the overall length of the barrel, and the
kit could only turn into a SBR, unless you bought parts of your own into
the equation.
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U.S. v. Dupaquier, 74 F.3d 615 (5th Cir 1996)
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U.S. v. Edwards, 90 F.3d 199 (7th Cir. 1996)
In this case the court addresses the distortion of the
Supreme court decision in Staples by
other courts, in
particular the Imes and
Barr cases. The question is whether
Staples applies to a sawed off
shotgun; ie does the
government need to prove the defendant knew the characteristics
of the weapon that put it within the purview of the NFA?
Staples says yes.
Imes and Barr say no,
because the thing
that makes the gun subject to the Act is not something hidden, but
if the defendant has ever seen the gun he has seen the characteristics
that make it subject to the Act, its length. The
Imes case in
particular wants to believe that
Staples didn't overrule the 9th
circuits precedent on this issue, the Herbert
case. However the Supreme
court did, and whether the characteristic that brings the gun under
the Act is hidden or not, makes no difference. In
Staples the defendant was
supposedly on notice because one of the external selector stops
on his AR had been ground off, leaving bright metal. Made no
difference. As this court points out, if the alteration is
obvious, that makes it that much easier for the government to
prove the defendant knew the gun was withing the NFA.
If it is close, as in Imes, I believe it was
less than 1 inch under
legal, the government should have to prove it. When the Supremes
render a decision some circuit court judges disagree with they will
undermine it as best they can - knowing in part the court is
unlikely to revisit an issue they just decided. This court correctly,
in my opinion, decides that Staples applies to short shotguns, and
in fact they say, to all items that might appear to be conventional
firearms, that someone might reasonably think are OK, given the
heritage of legal firearms ownership in the USA, as the Staples court
pointed out. There is a nice split in circuits on this issue, and while
the Supremes should grant cert. in one of these cases, it is unlikely
they will.
-
Transcript, U.S. v. One FAL Rifle, Case No. 71-2747-HP, and
U.S. v. One Browning Automatic Rifle, Case No. 72-642-HP (C.D.Cal 1972)
-
U.S. v. One Lot of Eighteen Firearms, 325 F.Supp. 1326 (D.N.H. 1971)
In this case the trial court decides that the pardon of the defendant
for his felony conviction, for which the government was trying to
forfeit his firearms operates to stop the forfeiture of his firearms,
even though the pardon was granted after the firearms were seized, but
before they were ordered forfeited.
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U.S. v. Eighteen Various Firearms, 148 F.R.D. 530 (E.D.Pa 1993)
In this case the court dismisses the case over the objections of the gun
owner, after ATF agreed to let him register the guns that were the
subject of the forfeiture. The gun owner contended that if the case
continued on he could get attorney fees, and a judgment letting him
register other guns, that weren't the subject of the forfeiture.
-
1993 ATF Memo on US v 18 firearms case
-
U.S. v. Elliott, 128 F.3d 671 (8th Cir. 1997)
-
U.S. v. Ellison, 793 F.2d 942 (8th Cir. 1986)
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U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Texas 1999)
In this decision a US district court decides that the ban on
posssessing firearms while subject to a domestic violence restraining
order violates the 2nd and 5th amendments to the US Constitution. In
his decision he decides that the 2nd amendment does pertain to a
personal individual right to own firearms, and that the restraining
order ban violates that right.
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Brief of Gun Owners Foundation in appeal of U.S. v. Emerson
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U.S. v. Endicott, 803 F.2d 506 (9th Cir. 1986)
This case deals with a lot of issues, the main
interesting one being whether a silencer kit was a silencer, before
the 1986 change in the law defining silencers to explicitly include
parts. In this case, as in Luce and
Poulos, the "kit" was apparently
really ALL the parts, in unassembled form. The issue of the kits, and
the lack of an Amnesty to register them, has yet to be settled, but
I don't doubt there are a lot of them still out there. In any case, as
part of a line of such cases, the court holds that the silencer
definition includes complete weapons in disassembled form, and the ATF
takes the position that anytime a law bans a certain firearm it also
bans the gun in unassembled form, even if the language doesn't say
so.
-
U.S. v. Evans, 712 F.Supp. 1435 (D.Mont. 1989)
-
United States v. Evans, 928 F.2d 858 (9th Cir. 1991)
Evans was peddling STEN
receiver blanks with a template for doing them up. He was working
with a buddy who sold complete STEN parts kits. The feds charged
him with conspiring and aiding and abetting in the illegal making
of machine guns, based on the idea that his motive in selling the
things, and assisting folks in getting all the parts was to have
his customers make illegal machine guns. They never said that the
receiver blanks were machine guns, or that the blanks and parts kit
together were a machine gun (although ATF apparently considers that
a "set of parts from which an mg may be readily assembled"). Just
the conspiracy, and aiding and abetting, based on what his
customers did with the stuff, and what ATF contended he intended
his customers do with the stuff. There is no reason why this
logic couldn't be extended to anyone who sells receiver blanks, or
parts. Apparently ATF has a policy that selling one or the other
is fine, selling them both, or selling them together is not. This
is major twilight zone stuff. Anyway the 9th circuit, the most
reversed circuit by the US Supreme Court, approves of this. This
case is one, with Hale, that approves of the
constitutionality of
922(o), as an exercise of the commerce clause power of Congress.
This is the view Bownds rejects. The court does
not give it much
thought, and basically says Congress may do as it wishes without
interference from the courts.
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U.S. v. Farrell, 69 F.3d 891 (8th Cir. 1995)
In this case a guy who brought two AK's home from the Gulf war
was arrested when he had a friend try and sell them. The court
has to decide whether the "knowing" requirement for a violation
of 922(o) means specific intent, the guy knew he was violating
the law, or more general intent, he knew he had machine guns, but
didn't know they were prohibited. The general intent requirement
is all that is needed for an NFA violation; even that wasn't needed
before the Supreme court decision in
Staples. However this is
not an NFA violation case, it is under 18 USC 922(o). The court
decides that the government only need show he knew they were
machine guns. The court also decides that the guns, as "select fire"
were "inherently suspect" and the government need not show he knew
they could fire full auto, but only that he had seen them, and they
bore external reflectons of being full auto (3 position selectors,
apparently, in this case). This follows the 8th circuit decision in
Barr, which also works to undermine
Staples, and somehow waive the
requirement that the government prove the defendant knew the nature
of the weapons that made them subject to the statute. The logic of
this case, and Barr, makes
Staples a nullity.
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U.S. v. Ferguson, 788 F.Supp. 580 (D.D.C. 1992)
In this case a guy was charged with stealing
machine guns from the US State Dept. mailroom. The fed dist. ct
for D.C. approved of the logic of the Rock Island
and Dalton cases
but said they did not apply here, because the guns he stole were
pre-86 guns, and thus were not covered by 922(o). The court said
that the government intended to prove the guns were also
registered under the NFA, something that guns possessed by the US
government need not be.
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U.S. v. Fisher, 353 F.2d 396 (5th Cir. 1965)
This is a case from 1965, on whether a smooth bore pistol was really
an AOW. Before 1968 the AOW definition was not what there is now, but
basically said, any concealable gun that isn't a pistol or revolver is
an AOW. ATF, then and now, administratively defined a pistol and
revolver as only guns with rifled bores. Before 1968, for example, a Mossberg
500 shotgun with a 18" barrel and a pistol grip would have been considered an
AOW. The AOW definition was
re-written in 1968. Anyway the court approves of the ATF
administrative definition of pistol, and rejects the testimony of
experts who say the definition is wrong, and the gun in question, a
pre-34 Stevens single shot .410 pistol is a pistol, and not an AOW,
despite its smooth bore.
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U.S. v. Fleish, 90 F.Supp. 273 (E.D. Mich. 1949)
In one of his many challenges to his conviction and sentence, Fleish's
argument that his NFA convictions violate double jeapordy, and that his
sentence is cruel and unusual are rejected.
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U.S. v. Fleish, 227 F.Supp. 967 (E.D.Mich. 1964)
After serving 20 years for being caught with 8 unregistered machine
guns, and after numerous unsuccessful legal challenges, in this case
Fleish gets out of prison after the court strikes down all but one of
the crimes he was sentenced for, based on the
Russell case. The court
finds that the failure to register firearms charges he was convicted of,
in 1939, were unconstitutional in that they compelled Fleish to
incriminate himself in violation of the 5th amendment.
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U.S. v. Fleming, 19 F.3d 1325 (10th Cir. 1994)
Bill Fleming
arranged two separate transactions, one where machine guns and DD's
were transferred from a Texas seller to the Seminole, OK police
department, as well as a second where he transferred guns and
silencers through the Creek County DA's office in Oklahoma,
and then from those agencies to the true purchasers. While these
transactions are within the law, and they do not require a transfer
tax, the court decided they were really "sham" transactions, and
were illegal. They interpret the government agency exception to
the tax to apply only when the agency is acquiring the weapon for
its use (or possibly another legitimate reason). The agency may
not acquire the weapons for the purpose of re-transferring them to
someone else and thus avoid the transfer tax to individuals in the
process. The court decided that when Fleming made out the Form 5's
indicating the weapons were going to the law agencies for their use
he was making a false statement, because the weapons weren't going
to the agencies they were going to private buyers. In the case of
the guns transferred to the DA's office they were apparently never
even delivered to the agency; Fleming kept them while the paper to
the final purchaser was completed.
In my opinion, from reading the case, Fleming got screwed. What he
did was within the law; there is no statutory limitation on the
reasons why a governmental agency may transfer weapons into and out
from itself. The court made up this "sham" exception; the law
impliedly relies on governmental agencies not using their tax
exemption to facilitate avoidance of the tax, but if they do abuse
it in that manner, nothing in the law prohibits that. The
prosecutor in the Fleming case is the same one who lost big time in
the Staples v. US case, when that was
appealed to the US Supreme
Court. Fleming was the expert witness for the defense in the
Staples case. Not that anyone was
holding a grudge or anything.
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U.S. v. Fogarty, 344 F.2d 475 (6th Cir. 1965)
In this case the court upholds a finding by the trial court
that a gun made out of a .22 rifle with barrel less than
16", and equipeed with a device that muffled the report was
a firearm under the NFA, even though the device was made to break
into telephone coin boxes, and not use as a weapon.
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Motion to dismiss the indictment in
U.S. v. Forgett, No. 23652
-
Brief in support of dismissal of indictment in
U.S. v. Forgett, No. 23652
-
Reply brief in support of dismissal of indictment in
U.S. v. Forgett, No. 23652
-
Government answer to reply brief in U.S. v. Forgett, No. 23652
-
U.S. v. Forget, No. 23652 (N.D. Ohio December 20, 1963)
-
U.S. v. Forgett, 349 F.2d 601 (6th Cir. 1965), reversed and
remanded w/o opinion, 390 U.S. 203 (1968), indictment dismissed, (April
10, 1970, N.D.Ohio)
In this case the 6th circuit upholds a conviction under the pre-68 NFA
for transporting interstate unregistered NFA weapons. The defendant was
a dealer (whose family runs Navy Arms today) who bought a bunch of
machine guns from a dealer in Wisconsin, and whose trucking company got
stopped by the police, and the unregistered guns were discovered. The
court states that it doesn't think the statute violated his right
against self incrimination, since the offense wasn't failing to
register, but transporting unregistered guns interstate.
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U.S. v. Foster, 133 F.3d 704 (9th Cir. 1997)
In this case, the en banc 9th circuit decides that in order for someone
to "carry" a firearm within the prohibition on carrying a firearm while
committing a drug crime, they must not be just transporting the gun. In
this case the gun was in the bed of a pickup, covered by a snap on
tarp. The judges decided that was not carrying the gun within the
statute, that there had to be more contact with the gun than just
transporting it from one place to another.
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U.S. v. Fourteen Various Firearms, 889 F.Supp. 875 (E.D.Va. 1995)
In this decision the court throws out an attempt to forfeit firearms
seized from a gun shop, whose owner was later convicted of making a
false statement to the government. The court decides that the
forfeiture action was started too late, after 120 days from the date of
seizure, as required by the Gun Control Act. The court rejects the
argument that as long as the government started an administrative
proceeding, it can start the judicial forfeiture whenever it feels like
it, saying the statute requires that any and all proceedings begin
within 120 days of seizure. This view was rejected by the courts in the
US v. Twelve Misc. Firearms case, as well as in
the U.S. v. Twelve Firearms decision.
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United States v. Franklyn, 157 F.3d 90 (2d Cir. 1998)
In this case the 2nd circuit joins all other circuits that have
considered the issue, and upholds the constitutionality of the ban on
new manufacture of machine guns, 18 USC 922(o).
-
U.S. v. Fredman, 833 F.2d 837 (9th Cir. 1987)
-
United States v. Funches - F.3d - (11th Cir. 1998)
In this case the court decides that erroneous advice from state prison
officials that the defendant could possess firearms when released from
jail is not the sort of promissory estoppel that prevents the federal
government from prosecuting him for being a felon in possession of
firearms. The court also takes the opportunity to rail against jurors
being able to render a decision based on their conscience, rather than
the law as instructed by the judge, so called jury nullification.
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U.S. v. Gambill, 912 F.Supp. 298 (S.D. Ohio 1996)
In this case the district court judge decides to follow
the US v. Dalton line of cases, rather than the
US v. Ardoin
line, and decides that the NFA, as applied to machine guns
(only) has been repealed by 18 USC 922(o), and thus Gambill cannot
be convicted of violating the NFA as to a SKS rifle he converted
to full auto. However his convictions for making destructive
devices (pipe bombs he claimed were for killing groundhogs)
and an unregistered silencer were upheld.
-
U.S. v. Garcia, 77 F.3d 274 (9th Cir. 1996)
-
U.S. v. Gardner, 448 F.2d 617 (7th Cir. 1971)
In this 1971 case the 7th circuit holds that the
Freed case means that the government need not
prove the defendant
knew his gun, a pre-1934 smooth bore pistol, was in fact a smooth
bore pistol. As with Ranney, this case was
overturned by Staples.
It is interesting to read about how immediately after the GCA was
enacted, the investigation in this case was in 1969, the ATF
immediately goes to work trying to entrap folks into dealing
without an FFL. The smooth bore pistol was a gift they found
during their search; the defendant was acquitted of the unlicensed
dealing charge.
-
U.S. v. Garnett, - F.3d - (4th Cir. 2001)
-
U.S. v. Garrett, 583 F.2d 1381 (5th Cir. 1978)
-
U.S. v. Gates, 491 F.2d 720 (7th Cir. 1974)
In this case the court overturns the defendants conviction for
possessing an unregistered NFA gun (they don't mention what sort
of gun, I bet it was a sawed off shotgun). The defendant was a
passenger in a car in which the gun was found; under his seat.
The court said that was not enough - there was no other evidence
linking him to the gun. They said there could be an inference of
possession to the driver, he was acquitted separately. There were
no fingerprints on the gun. The government needed more facts linking
the defendant to the gun than sitting on top of it in the car, to show
possession.
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U.S. v. Gergen - F.3d - (9th Cir. 1999)
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U.S. v. Giannini, 455 F.2d 147 (9th Cir. 1972)
In this case the 9th circuit rejects a challenge to multiple
NFA convictions on the basis that the NFA is not a proper exercise
of the commerce power, noting that it is an exercise of the taxing
power and not the commerce power. The court also noted that there
is no requirement that the defendants know they are violating the
NFA, just a requirement that they have done the acts that
constitute the violation intentionally.
-
Administrative inspection warrant application, and affidavit for same, dated
May 30, 1986, and the warrant
-
U.S. v. Goff, affidavit for 6/4/86 search warrant of ARDCO
-
U.S. v. Goff, affidavit for 6/6/86 search warrant
-
U.S. v. Goff, search warrant affidavit for warrant of July 21, 1986
-
U.S. v. Goff, No 86-CR-168, Indictment of November 20, 1986
-
U.S. v. Goff, Motion for Protective Order of April 15, 1987
-
U.S. v. Goff, July, 1987 Government Trial Brief
-
United States v. Goff, 677 F. Supp. 1526 (D. Utah 1987)
A federal district court opinion denying a motion by
the Goffs to suppress evidence seized both with and without a
search warrant. The Goffs ran the Utah company that made American
180 machine guns, and apparently papered several thousand guns they
hadn't made yet, in the few days before 5/19/86, the day the making
ban took effect. NFA Branch asked the local ATF to look at the
guns, to make sure they existed. A world of hurt followed. The
case has a good summary of the rather bogus state of the law in
terms of warrantless "administrative" searches of FFL holders.
I don't know what ultimately happened to the Goffs in terms of
criminal convictions.
And note the judge's brilliant logic that a warrant that
authorized the seizure of "firearms" included unmachined aluminum
blocks, because the law defines a SILENCER as any part designed and
intended for use in a silencer. From this he decides that also any
part designed and intended for use in a machine gun is also a
"firearm" and subject to seizure. That should have been appealed;
that is clearly wrong, and a scary leap of logic, all machine gun
parts are machine guns also. BULL. Where does he get off using
the definition of silencer to define what a "firearm" (in the NFA
sense) is, or what a machine gun is. Damn that's stupid. But the
value of getting the blocks thrown out as evidence (having been
seized w/o a valid warrant) was probably pretty minimal. Not worth
appealing. I also like the comment about how a machine gun
receiver is the part that lets it fire fully automatic.
-
U.S. v. Goff, Transcript of Sentencing Hearing, July, 1990
-
U.S. v. Gomez, 81 F.3d 846 (9th Cir. 1996)
In this case the court reverses a conviction for possessing
a firearm by a felon. The felon was not permitted to put on
his defense, which was that he had an immediate need to protect
himself, which the court said is generally a defense to a charge
under sec. 922(g). In this case the reason the felon needed protection
was because the government, after getting his help in convicting a
fellow inmate in a murder for hire scheme, told the other guy who
the informant was, and refused to help protect him after he began getting
very serious threats to his life. On top of refusing to help
protect him, they (the same prosecutors as on the first case
where he was an informant) then prosecuted him for possessing a shotgun
he had to protect himself. One interesting feature of this case is
footnote 7, where the judge states uneqivacally that the second amendment
protects the rights of persons to own guns, and that if there
was no exception to sec. 922(g) for felons to possess guns to protect
themselves from immediate threats, the law might well be unconstitutional,
under the second amendment. The other judges on this panel wrote
separate concurrences to distance themselves from the footnote. One
even notes that it directly contradicts a decision from another 9th circuit
panel from almost the same time, as to the second amendment (referring to
the Hickman v. Block case). Compare this
case to the US v. Bernard Brown case, where
the court upheld the exclusion of this sort of
defense to a charge of possessing an sawed off shotgun. In part, the Brown
court says, because Brown could have resorted to a non-NFA firearm
for defense from the street gang. No such issue in this case.
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U.S. v. Gonzales, 121 F.3d 928 (5th Cir. 1997)
In this case the 5th circuit upholds a conviction for violating
922(o), as well as some drug trafficking counts. The court fiollows
US v. Just, and decides that the fact that
a machine gun is registered and thus exempt from 922(o) is an affirmative
defense, and not something the government needs to prove. The court also
decided that the 30 year sentencing enhancement for possessing
or using a machine gun in a drug trafficking crime is not so
harsh as to violate the 8th amendment by any disproportionality
between the crime and the sentence. Lastly the court rejected
the claim that the government failed to prove the defendant knew
the gun was a machine gun. The court just said they found
it inconceivable the owner of a converted semi-auto rifle wouldn't
know it fired as a machine gun, and noted a witness claimed the
defendant claimed to have a machine gun.
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U.S. v. Goodman, 639 F.Supp. 802 (M.D.Pa. 1986)
In this case a FFL dealer, who also was an attorney, is convicted
to conspiring to import unimportable firearms, specifically Walther
TPH pistols. Goodman operated under the name American Armaments. He
got a local PD to order 24 Walthers, where he would pay for them, and
keep 22 of them. ATF found out, and persecuted. Goodman argued the
literal words of the law allowed a PD to use its purchase order to
import otherwise unimportable guns for commercial resale, and the
purchase need not be for its use. The court agreed the words said
that, but claimed it would subvert Congress' will not to read the
law to prohibit the plan at issue. This case also features a classic
quote from current class 2 manufacturer, Doug Oefinger, testifying
he told the defendant he "was fucking nuts" when the scheme was described
to him. Maybe not nuts, but he definitely underestimated ATF.
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U.S. v. Goodson, 439 F.2d 1056 (5th Cir. 1971)
In this prosecution under the pre-68 NFA, the 5th circuit reverses
a conviction for possessing a short shotgun made in violation of the
NFA. The court decides that since the shotgun was made in Canada
originally, the government needs to prove the short shotgun was made
in the USA, as it is not a crime to make one outside the USA, and
possession of such a gun is not covered by the section of the NFA
the government prosecuted under. As the government admitted it could
not prove the short shotgun was made in the USA, the court reverses
the conviction. While it is still true that NFA weapons outside the
USA are not regulated, the statute has been revised to sort of eliminate
this issue.
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U.S. v. Gravenmeir, 121 F.3d 526 (9th Cir. 1997)
In this case the 9th circuit agrees with the 8th circuit case
US v. Just, and decides that whether a machine gun is registered
is an affirmative defense to a charge under 18 USC 922(o), and
the government does not have to prove non-registration as an
element of the offense. The court also agrees that the Staples
decision applies to 922(o), as well as to the NFA; in other words
the government has to prove the defendant knew the gun was a machine
gun, in order to win a conviction. In this case the court said
that was demonstrated by the defendant showing the converted Uzi
to another person and saying it was full-auto, the defendant
possessing machine gun conversion books, his subscription to
the magazine Machine Gun News, and the three position selector
on the pistol grip of the gun.
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U.S. v. Gray, 484 F.2d 352 (6th Cir. 1973)
In this case the court upholds a finding that stolen rifles were
seized during a search for illegal liquor without a warrant or
probable cause, and thus as the rifles were seized in violation
of the 4th amendment they cannot be used as evidence against the
defendant.
-
U.S. v. Green, 515 F.Supp. 517 (D.Md. 1981)
-
U.S. v. Griley, 814 F.2d 967 (4th Cir. 1987)
In this case the court upholds a conviction for possessing an
unregistered machinegun, and for transporting an unregistered
machine gun across state lines. The defendant was alleged to
have obtained a M16 stolen from Ft. Meade, in Maryland, and to
have taken it to his mothers house in North Carolina. Among points
of interest, the court decides that it was proper to have the
jury hear testimony that the parts found at his mother house were
a machine gun, even though it was incomplete, and may have consisted
only of a receiver. The court also upholds the prosecutor represnting
that a witness would not get favorable treatment on pending charges he
was facing, then actually giving favorable treatment when the witness
was later sentenced.
-
U.S. v. Gross, 313 F.Supp. 1330 (S.D. Ind. 1970)
In this case the trial court upholds the defendants conviction for
dealing in firearms without a license. The court says that the Gun
Control Act does not violate the constitution, in that it is a
regulation of interstate commerce, and that it is also an exercise of
Congress' taxking power, and further that it does not offend the second
amendment to the Constitution. Also see
the Appeals court decision,
which tackles different issues, for the most part.
-
U.S. v. Gross, 451 F.2d 1355 (7th Cir. 1971)
In this case the court upholds the conviction for dealing in firearms
without an FFL of the gun department manager of a K-Mart store. He was
buying and selling guns with the store customers on the side, as well as
dealing guns to other folks on the side. One turned out to be an
undercover police officer. The court rejected arguments that the
definition of being a dealer was too vague to be sure whether it applied
to his conduct, as well as his argument that part of the question and
answer section in the gun law guidebook published by the predecessor to
ATF said that you didn't need a license to occasionally buy and sell
guns, and therefore the government was estopped from claiming otherwise.
-
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992)
This is a case which upheld the constitutionality of 922(o) under both
the second amendment and the commerce power. In the case of the
commerce power, this is the logic that the Bownds case disagreed
with. Bownds apparently did not raise a 2nd
amendment claim. The
court rather blithely disposes of the constitutional question
claiming the 2nd amendment does not mean anyone has a right to own
a gun, only that the feds may not interfere with militias. And as
to the commerce power claim, they use the findings made when the
1968 GCA was enacted, not the 1986 ban, to say there was enough of
a nexus with commerce for the feds to ban machine guns. A "we're
not going to listen, see our hands are over our ears" type case.
Depressing.
-
U.S. v. Hall, 972 F.2d 67 (4th Cir. 1992)
-
U.S. v. Hancock, - F.3d - (9th Cir. 2000)
-
U.S. v. Hardgrave, 214 F.2d 673 (7th Cir. 1954)
-
U.S. v. Hardy, 120 F.3d 76 (7th Cir. 1997)
-
U.S. v. Harflinger, 436 F.2d 928 (8th Cir. 1970)
In this case the appeals court upholds a conviction for possessing a
bomb that was not registered. In part, the court decides that the
provisions of the post-68 NFA regarding possessing unregistered NFA
weapons do not violate the 5th amendment the way the pre-68 NFA
provisions were held to do.
-
U.S. v. Harrelson, 442 F.2d 290 (8th Cir. 1971)
In this case the court rejects the contention that the defendant's
conviction for possessing a sawed off shotgun made in violation of the
pre-68 NFA should be thrown out. The defendant argued that the
requirements to file an applicaiton to make the shotgun would violate
his right against self incrimination. The court, without discussion,
citing its decision in Reed v. US, as well as
other courts reaching the same conclusion, rejects the argument.
-
U.S. v. Harris, 959 F.2d 246 (D.C. Cir. 1992)
This case has defendants named "knot", "drago",
"cheese" and "richmo".....drug dealers from Wash. DC. Of interest
in this long case is the DC Circuit court agreeing with other
cases, before Staples, that
conviction under the NFA requres a showing
by the government that the person knew the gun was a machine gun
in order to convict (the gun was a MAC-10, "a favorite of drug dealers").
The court also says that such a requirement comes from the language
of the law, or the lack of a waiver of requiring such proof, and Congress
could constitutionally dispense with mens rea for possession of a firearm
if it wished.
The court also says that using a gun in a drug transaction can be just
trading it for drugs, a conclusion also reached by the Supreme court in the
Smith case.
-
U.S. v. Harvey, 397 F.2d 526 (7th Cir. 1968)
In this case the court throws out a conviction for possessing an
unregistered sawed off shotgun based on an illegal search. The court
also notes that it is not ruling on the defendant's self incrimination
claims because of the alternate basis for reversal.
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U.S. v. Hedgcorth, 873 F.2d 1307 (9th Cir. 1989)
In this case the 9th circuit upholds a conviction for using a firearm in
a crime of violence, as well as possessing an unregistered destructive
device. The court decides that the homemade gallon jugs of napalm, used
to set cars on fire as part of a contract intimidation, were destructive
devices, in that they were used and meant to be used as weapons, even
though they were homemade, and even though they could not be thrown, but
had to be placed and lit by hand.
-
U.S. v. Henson, (4th Cir 1996)
-
U.S. v. Henson, 55 F.Supp.2d 528 (S.D.W.Va. 1999)
-
U.S. v. Herbert, 698 F.2d 981 (9th Cir 1983)
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U.S. v. Hern, 926 F.2d 764 (8th Cir. 1991)
In this case the court upholds the defendant's conviction for conspiring
to violate the Gun Control Act, and for willfully making flase entries in
records required by the GCA. Hern worked with another, out of state
dealer for that dealer to be able to sell guns at gun shows in Hern's
state. The dealer would log the gun to Hern when someone wanted it, and
the buyer would do paperwork with Hern to acquire the gun. The court
claimed that was conspiring to violate the GCA; that residents could not
buy from out of state dealers through an in state dealer. Compare to
US v. Caldwell, and
US v. Douglas. The court also upheld the
false record convictions, for allegedly selling guns off paper - not recording
their true acquisition or disposition.
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U.S. v. Hicks, 992 F.Supp. 1244 (D.Kan. 1997)
In this case the trial court upholds the ban on gun possession by
persons convicted of a domestic violence misdemeanor, against a claim
that the law violates the ex post facto clause when a conviction from
before the law was enacted is used to trigger the penalty of the law.
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U.S. v. Hitt, 981 F.2d 422 (9th Cir. 1992)
In this case the 9th circuit reverses a conviction for possessing an
unregistered machine gun because the prosecution introduced a photograph
of weapons that included the gun at issue, but which also included
unrelated guns, including some bad looking "assault" guns. The court
decides that this photo was unfairly prejudicial to the defendant, and
orders a new trial.
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U.S. v. Holt, 427 F.2d 1114 (8th Cir. 1970)
This case is about a guy who was convicted of making and
possessing a sawed off shotgun. He and some friends went
with the gun to Missouri, from Ill., where they wrecked the
car because they were drunk, and the gun was discovered.
He claimed the evidence was insufficent to prove he ever
possessed the gun, and that a second person should have
been charged as an accessory also. The court said that
possession could be constructive, or joint, although they thought
the facts showed he made and held the gun. They also said
that the woman who drove, and wrecked the car, need not
necessarily be an accessory, if the evidence as to her knowledge
about the gun was inconclusive.
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U.S. v. Holt, - F.3d - (7th Cir. 1999)
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U.S. v. Homa, 441 F.Supp. 330 (D.Colo. 1977)
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U.S. v. Homa, 608 F.2d 407 (10th Cir. 1979)
In this case the 10th circuit upholds the trial court's
finding that some white phosphorus grenades are "weapons"
to put them within the definition of a desctructive device.
The defendant argued they were smoke grenades, not meant
for use as a weapons, but for generating smoke. ATF put
on contrary evidence, and the judge credited that
evidence. Incidentally, unlike the
Dalpiaz case, the court
here refused to review a trial court finding that part of
the government's burden of proof was that the items were
weapons, as opposed to the idea that the government need
only prove the items meet the definition, and it is up to
the defendant to raise the idea that the thing is not a
weapon, and thus outside the definition, as an affirmative
defense.
-
U.S. v. Hommer, No. 96-1681, (8th Cir. 1996)
-
U.S. v. Hudson, No. 97-4282 (4th Cir. 1997)
-
U.S. v. Hunter, 843 F.Supp. 235 (E.D.Mich 1994)
-
U.S. v. Hunter, 863 F.Supp. 462 (E.D.Mich 1994)
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U.S. v. Hunter, 101 F.3d 82 (9th Cir. 1996)
In this case the 9th circuit decides that a "assault
weapon" need not be operational in order for it to be
the basis for the 10 year sentencing enhancement for
using one in a crime. In this case the defendant robbed
a credit union with a broken SWD M12 .380 pistol. The
court decided that the fact that the gun was broken did
not make the sentencing enhancement inapplicable.
-
U.S. v. Hurd, 642 F.2d 1179 (9th Cir. 1981)
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U.S. v Hutzell, - F.3d - (8th Cir. 2000)
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U.S. v. Imes, 80 F.3d 1309 (9th Cir. 1996)
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U.S. v. Indelicato, 97 F.3d 627 (1st. Cir. 1996);
cert. denied, 117 S.Ct. 1013 (1997).
In this case the 1st circuit court of appeals considers whether
a person convicted of a crime punishable by more than one year has
had his right to bear arms restored, and is thus not subject to
the federal firearms disability, when the state in question (Mass.)
never strips persons of the right to own guns for the offense in
question. The court agrees with other circuits on the question,
and decides that if a state does not strip a person of the right
to posess firearms after conviction for the offense, even if it
is punishable by imprisonment for more than one year, they are not
subject to the federal firearms disability either. In this case
Mass. has misdemeanors which did not result in losing the right to
own firearms, but were punishable by up to 2 years in jail. This
issue is a result of 1986 amendments to the Gun Control Act, where
Congress decided that the issue of whether a state law conviction imposed
a firearms disability would be decided by state law. If the right was
automatically restored, then the federal disability went away also.
If the person was pardoned, or otherwise petitioned the state for the
rights restoration, then the federal disability went away. And if
there never was any disability, there was no federal disability either.
On the other hand, a federal conviction will require a presidential
pardon, or the restoration of the right by ATF, under the
procedure set out in the law. As Congress has refused to fund ATF
action on petitions for restoration of the right to own firearms by
felons, the issue of what a federally convicted felon is supposed to do is
before the Supreme Court, in the Oct. 1996 term. The 3rd circuit
decided the felon could go straight to the courts, the 5th circuit
decided there was no relief for a federal felon, except for a
presidential pardon.
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U.S. v. Indelicato, 964 F.Supp. 555 (D.Mass 1997)
In this case, the court construes the "grandfather" clause
of the assault weapon ban, 18 USC 922(v). The court
believes that the weapons are only grandfathered to the owner
as of the date of enactment of the ban, 9/13/94, and that no
other person may lawfully possess them, ever. No weapon grandfathered
as of that date may be transferred and possessed as
other weapons may be. Therefore the judge decides that the brother
of the defendant, whose guns were not subject to seizure, may not
get a semi-auto Uzi model A back from the government, as the
brother may not legally possess it, as he did not have it on the
grandfather date, the defendant did.
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U.S. v. Jackson, - F.3d - (4th Cir. 1997)
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U.S. v. Jacques, partial trial transcript, Crim. No. 51375 (W.D.Wa
September 11, 1968)
-
U.S. v. Jacques, actual, unedited transcript of Court
decision, No. 51375 (W.D.Wa. September 27, 1968)
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U.S. v. Jacques, Transcript of decision as edited by Court,
Crim. No. 51375 (W.D.Wa. September 27, 1968)
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U.S. v. James, 528 F.2d 999 (5th Cir. 1976)
In this lengthy opinion the Court deals briefly with NFA issues. One of
the defendants was charged with firing a fully automatic AR180 at the
FBI and local police, however the gun woudl not function as a machien
gun after it was first test fired by the feds. The court said that the
fact that it would not function as a machine gun for defense testing did
not mean the defendant could not be convicted of possessing the machine
gun (and a conspiracy count related to its possession), as there was
testimony it fired as a machine gun during the firefight, and that it
did fire fully automatic for some of the testing, during which it was
apparently damaged or borken.
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U.S. v. Jamieson, 202 F.3d 1293 (11th Cir. 2000)
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U.S. v. Jarvouhey, 117 F.3d 440 (9th Cir. 1997)
In this case the 9th circuit decides that, in the case of a
FFL dealer who sold handguns under the counter, without
keeping any records at all, that the proper penalty is a
felony conviction. When the GCA was amended in 1986, by
the Firearm Owners Protection Act, the NRA wanted the penalty
for a dealer keeping crummy records reduced to a misdemeanor,
from the felony it had been, and that was done. The law was changed
so that a dealer that knowlingly kept poor records could not
be punished by more than a year in jail. This reduced the
prior ATF incentive to "felonize" gun dealers, and keep them
from being able to own guns, by finding poor recordkeeping on
the part of dealers. However, if anyone "wilfully" violates the
GCA, they are subject to a penalty of five years in prison (and
more for violating a few select sections). Wilfully means you
do it knowing you are doing it, and knowing it is prohibited
by law. Knowlingly, in general, just means you do it knowing
you are doing it, without any knowledge that the intentional
action is illegal. These are different levels of "intent",
or as the lawyers call it, mens rea (state of mind). In this
case, because the violations were "wilful" and not just "knowing"
the court agrees that the 5 year penalty, not the one year penalty,
applies. The court also rejects precedent from the 4th circuit, that
any recordkeeping violation by a dealer is only subject to the 1 year
provision, since it overrides the generally applicable 5 year provision.
This case certainly highlights one feature of "wilful" crimes, nearly
all the time the knowledge of the law is proved by the defendant's statements
to the police. Keeping one's mouth shut can go a long way to avoiding
these problems. Aside from not engaging in the conduct that was the
problem initially.
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U.S. v. Jester, 139 F.3d 1168 (7th Cir. 1998)
In this case the appeals court rejects constitutional challenges to the
ban on felons possessing firearms. The defendant argued the law had an
impermissible classification between types of felons, in that it
excludes some felonies from the prohibition, and also that it was cruel
and unusual punishment. The court said that the differentiation
between types of felonies was OK, and the law was fine as to punishment.
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U.S. v. Jimenez, 864 F.2d 686 (10th Cir. 1988)
In this case the 10th circuit upholds the warrantless seizure
of a short shotgun, after the defendant was involved in
a traffic accident that peeled open his trunk. The shotgun
was in the trunk, and the police saw it while checking the
car for leaking gasoline, batteries, and other hazards from
the accident. The court upheld the seizure under the
plain view exception to the 4th amendment. The court decided that
the shotgun, which had a short barrel, was obviously
contraband, justifying the seizure.
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U.S. v. Johnson, 441 F.2d 1134 (5th Cir 1971)
In this case the defendant appeals his conviction for possessing
a sawed-off shotgun claiming the law violates his right against
self incrimination, and the 2nd amendment. The court decides that,
based on the recently decided Freed case, it is
not a violation
of any 5th amendment right, and also that the second amendment doesn't
protect the right to own a gun, quoting the Miller
language about
the absence of evidence linking a sawed off shotgun to a well regulated
militia. It doesn't really make any sense, but the whole case is pretty
short.
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U.S. v. Johnson, 978 F.Supp. 1305 (D.Neb 1997)
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U.S. v. Jokel, 969 F.2d 132 (5th Cir 1992)
In this case the 5th circuit decides that a short shotgun
under the NFA, includes one without a traditional trigger,
but can also be one that is fired by cocking the hammer and
letting go. The defendant thought he had avoided the statute
by not putting a trigger on his homemade gun, sort of like
the "sputtergun" referenced in the York case. The court says
that a trigger, since it is not defined in the statute, has the
ordinary meaning, in this case anything that makes the gun fire.
The court also decides that some homemade pipe bomb devices,
lacking any explosives, are still covered by the NFA, since the smokeless
powder and lead shot the defendant also had could be used
to complete the devices. The defendant's explanation that they
were to become signalling devices for paintball war games did
not persuade the jury.
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United States v. Jones, 976 F.2d 176 (4th Cir. 1992)
Jones was convicted of making unregistered machine
guns in violation of the NFA. He made full auto trigger packs for
the Remington 1100 shotgun. Wonder how long that gun will stand up
to full auto fire.... Anyway the main point of interest from this
case is the 4th circuit's refusal to follow the 10th circuit (in
Dalton) and agree that 922(o) impliedly repeals the NFA,
as applied to post May machine guns. They decide it does not, in a manner
similar to the 5th circuit in Ardoin, which
cited this earlier
case. They say that it is not a problem because one can just not
make post-May guns, and then one doesn't need to worry about
violating 922(o) or the NFA. If that were the standard all
criminal laws would be just fine. The sad part about this case is
that at least there was a reasoned dissent in
Ardoin. All these
judges went along with this, that it is OK to prosecute someone for
not paying a tax the government won't let them pay. They cite the
Supreme court case Minor, Which is totally irrelevant because there
the government would accept your tax payment for your otherwise
illegal drug transaction. The issue is not can the man tax
illegal acts, but can the man prosecute you for not paying a tax
you literally cannot pay, the government may not legally accept the
tax payment? Like Ardoin the Supreme court
refused to review this case, and settle the conflict between the circuits
on this issue.
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U.S. v. Julian, 974 F.Supp. 809 (M.D. Pa. 1997)
In this case the court refuses to dismiss a case charging the defendant
with possessing firearms and ammo while a felon. After his arrest he
got the state felony conviction expunged and sealed, and then argued he
was no longer a felon, and thus was not guilty. He also argued that
since his record had been sealed, it could not be used as evidence. The
court rejected both arguments, saying even if one has a conviction which
could be voided, one has to do that before possessing guns or ammo,
citing the Supreme Court case Lewis v. US.
The court also rejected the
argument that the record was now inadmissible, saying his felony status
at the time of possession could be proved by other means than the
record, if it was unavailable.
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U.S. v. Just, 74 F.3d 902 (8th Cir 1996)
In this case the 8th circuit construes 18 USC sec. 922(o). Just
was caught selling an apparently unregistered Jap Type 99 machine gun
to an undercover police officer. One argumetn he made was that the
government needed to prove the gun was unregistered. The court said
that while the government had apparently proved that, they disagreed
that that was a requirement of the statute. All a crime under 922(o)
required was possessing a machine gun. That it was registered was
an affirmative defense, and up to the defendant to demonstrate.
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U.S. v. Justice, 835 F.2d 1310 (10th Cir. 1987)
In this case the 10th circuit upholds the warrantless seizure
of a machine gun, the possession of which the defendant was
convicted of, based on the plain sight doctrine. In this case
the police were called to the defendant's home which was in
a state of disrepair, such that a kicked in door had not been
fixed. Someone was in the front yard shooting at snakes. The
police entered the home to look if anyone had been shot, and to see
if the house had been burglarized. They found a quantity of
industrial high explosives, haphazardly and dangerously
stored. While scouting around they found the gun under a bed -
the butt was allegedly protruding out. The court failed to
come up with a plausible suggestion of how the gun was obviously
contraband, which is the most important step of the plain sight
seizure analysis, as pointed out by the dissent. Compare to
US v. Gray.
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U.S. v. Kelly, 548 F.Supp. 1130 (E.D.Pa. 1982)
In this case the trial court upholds a jury verdict
convicting the defendant of making an unregistered machine
gun. Kelly put an ad in Shotgun News offering to convert
the triger housing and bolt for an Uzi rifle into those suitably
for a machine gun. An ATF agent took him up on the offer, and
got back a trigger housing and bolt that when put in a semi-auto
rifle, allowed it to fire full auto. Kelly agreed that that
was the purpose of the alteration - however his main argument
was the items were not a machine gun unless and until installed on
a receiver, that a conversion set isn't a machine gun, based upon the
language of the statute, and the
7 Misc. Firearms case. The court rejected
the literal language of the statute, and the case, saying the
law meant what Congress said in the legislative history for it to
mean, not what it might or might not say. The court suggested that
"and" and "or" can be used interchangably, to further Congress'
"intent", as divined from their reports, not from their laws. Alice
in Wonderland time, although that sort of hogwash goes on a lot in
court.
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U.S. v. Kenney, 91 F.3d 884 (7th Cir 1996)
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U.S. v. Khatib, 706 F.2d 213 (7th Cir. 1983)
U.S. v. Kindred, 931 F.2d 609 (9th Cir 1993)
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U.S. v. Kirk, 70 F.3d 791 (5th Cir. 1995)
In this case the 5th circuit agrees with
the 10th circuit in Wilks, that 922(o) is a
proper exercise of the
commerce clause power by congress. There is a dissent that argues
that a flat out ban on a gun with no relation to commerce is not
acceptable under Lopez, but the majority disagreed.
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U.S. v. Kirk, 105 F.3d 997 (5th Cir. 1997)
In this case, and en banc rehearing of the panel opinion,
an even split of the entire circuit results in upholding
the panel decision, and upholding 18 USC 922(o) against a
challenge that it is outside the power of Congress to enact.
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U.S. v. Kirvan, 86 F.3d 309 (2nd Cir. 1996)
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U.S. v. Knutson, 113 F.3d 27 (5th Cir. 1997)
In this case the 5th circuit affirms the constitutionality
of 18 USC 922(o), despite the fact that it has no connection
to interstate commerce, per the Lopez case. The
court disagrees,
and notes that this was an open issue in the 5th Circuit, given
that the Kirk case was only affirmed because the
en banc rehearing
ended up affirming the panel decision because the en banc court
was evenly split on whether 922(o) was a constitutional regulation
of commerce. This panel claims to settle the issue.
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U.S. v. Kokin, 365 F.2d 595 (3d Cir. 1966)
In this case the court very briefly decides whether the
sale of an M-1 carbine together with all the parts to
convert it into an M-2 carbine (a machine gun) is selling
a machine gun. The court decides that it is; as this case
was decided under the pre-68 NFA, the M-2 parts in themselves
were not a machine gun (a conversion kit).
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U.S. v. Kocourek, No. 96-1963 (8th Cir. 1997)
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U.S. v. Kozerski, 518 F.Supp. 1082 (D.N.H. 1981)
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U.S. v. Kurt, 988 F.2d 73 (9th Cir. 1993)
This is a sort of lame case. the 9th circuit decides
that 922(o) does not impliedly repeal the NFA (26 U.S.C. 5861(d) in
this case) when the gun in question was converted or possessed
whatever before 5/19/86. The court decides that the defendant
needs to assert that, and if that results in the case being tossed
out he cannot be re-tried. One case they cite for that concept was
the Dalton case; except of course the district court
opinion to
that effect; that an erroneous prosecution under the NFA for a
post-86 mg bars under Double Jeopardy a re-trial under 922(o) was
REVERSED by the 10th circuit. In short, their contention about the
double jeopardy clause is not recognized by other courts.
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U.S. v. LaCedra, No. 97-1286 (1st Cir. 1997)
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U.S. v. LaGue, 472 F.2d 151 (9th Cir. 1973)
This case concerns a guy who had a colleciton of unregistered
silencers and machine guns. The feds prosecuted him for
possesing unregistered guns, and he beat the silencer charge,
but not the mg charges. The evidence concerning possession was
that others had seen him with "similar" guns, and they were found in
the warehouse of the family carpet business. The court thought that
was sufficient evidence of possession to support a conviction.
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U.S. v. Lamplugh, Case No. 3:CR-95-0169 (M.D.Pa., August 6, 1998)
In this decision from a firearms prosecution, the trial judge refuses to
suppress evidence seized during a search of the Lamplugh's home, based
on alleged abuses commited by federal agents during the search,
including stomping a kitten to death.
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U.S. v. Lauchli, 371 F.2d 303 (7th Cir. 1966)
Richard Lauchli was apparently a (1950's-60's)
dealer in IL in gun parts, or so called demilled Thompson machine
guns, in particular. Unfortunately he was also a felon (got a fine
for possessing an unregistered NFA weapon, and in a second case,
got a suspended sentence and a $500 fine for stealing bazookas from
the military. Those were the days...) In this case he got tricked
into making some of his "demil" Thompsons live for sale to an ATT
agent. He thought by selling them w/o the barrels installed he
was outside the definition of machine gun. The court disagreed. In
any case he also sold a Bren gun, and at least one Browning machine
gun; anyone know if its really true a Bren won't work on full auto
w/o a bipod??
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Lauchli v. United States, 402 F.2d 455 (8th Cir. 1968)
In this one Lauchli gets off of a violation for
transferring a M2 .50 cal., based on the
Haynes v. US decision.
This is the 8th circuit, a different prosecution than the ones in
the 7th circuit. Essentially the 7th circuit rejects this case in
Lauchli4.
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Lauchli v. United States, 432 F.2d 1207 (7th Cir. 1970)
This is the 7th circuit sending the case down to the
district court for re-consideration in light of
Haynes, and
indirectly, Lauchli3. Later the lower court decides
Haynes doesn't apply....
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Lauchli v. U.S., 481 F.2d 408 (7th Cir. 1973)
This is an appeal of one of his cases, I haven't
straightened out how many times, and for what, Lauchli got
prosecuted, he clearly liked to live close to the edge - here the
court has to decide if he can use the recent
Haynes decision as a
defense to a prosecution for not paying the SOT when he was doing
things the SOT is required for. The court decides no, the SOT parts
of the NFA do not require self-incrimination, and that they do not
apply to a class that is primarily suspected of criminal activity,
as the requirement for possessors of unregistered guns to register
them, while penalizing unregistered possession did, in
Haynes. The
court has some interesting alleged statistics and info on the SOT
situation in 1964, the year the feds apparently claimed Lauchli
needed to pay the SOT for. If you believe Lauchli's witnesses,
not much has changed with regard to ATF going after folks in the
industry, and not criminals. The court didn't believe them.
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U.S. v. Lauchli, 427 F.2d 258 (7th Cir 1970)
I mostly included this for completeness; this is
Lauchli's probation being revoked for selling alleged silencers and
machine guns one month after being released from prison on the
prior convictions.
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U.S. v. Lawrence, 680 F.2d 1126 (6th Cir. 1982)
In this case the court upholds a conviction for providing false
information to a dealer, in the conduct of a "straw" purchase. In this
case the court rejected the argument that the straw buyers were really
the actual buyers of the gun, and thus didn't lie on the 4473 form, in
that the money to buy the guns came from the ineligible buyer, they got
paid to buy the guns, and they turned them over to the ineligible person
immediately.
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U.S. v. Le, Case no. 97CR84 (N.D. OK), docket listing
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U.S. v. Le, - F.3d - (10th Cir. 1999)
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U.S. v. Leasure, Transcript of Hearing May 21, 1996 4:95CR54 (E.D.Va. 1996)
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U.S. v. Leasure, No. 96-4481, No. 96-4516 (4th Cir. March 27, 1997)
In this case the 4th circuit upholds the conviction of the
owner of Silent Options (SIOPTS, formerly Precision Arms
International), a class 2 silencer making company, for
possessing 19 unserialized silencers. They were units he had made,
and didn't meet his spec, and so he didn't register them, and
cannibalized them for parts when needed. ATF found them during
a compliance inspection, and he was prosecuted. He was also
convicted of possessing unregistered machine guns, but those charges
were thrown out by the trial court after Leasure's lawyer put
on evidence of perjury by ATF people in making certifications
as to the registration or non-registration of guns. The
transcript of that hearing
is also on this web page. You can read
the Busey transcript here as well, which was
the basis for the
motion. The government chose not to appeal that dismissal, probably
because they didn't want to risk making any adverse case law. The
bottom line on this case is that while ATF tolerates class 2 SOT's
having unregistered silencer parts, they do not tolerate unregistered
silencers, in an assembled state. Even if they don't work as they
should, these worked well enough.
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U.S. v. Leasure, No 95CR54, transcript of 4/14/98 sentencing hearing
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U.S. v. Leasure - 12/98 response to petition for relief from conviction
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U.S. v. Leavell, 386 F.2d 776 (4th Cir. 1967)
In this case the court decides that the pre-1968 NFA covers
the untaxed sale of complete machine gun parts kits, coupled
with the intent that they be assembled. In those days the
definition of machine gun was only a gun that fired more than
one round with a single pull of the trigger. No receivers, no
parts kits, no conversion devices. Despite that limitation
of the langauge, a number of courts jumped the guns, and
decided that selling parts kits could be covered also. See also
Kokin, and Lauchli,
cited in this case.
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U.S. v. LeBron, 729 F.2d 533 (8th Cir. 1984)
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U.S. v. Lemmon, 804 F.Supp. 102 (D.Ore. 1992)
In this brief decision the court upholds the defendant's conviction for
possessing unregistered silencers and a sawed off shotgun. The
defendant contended that the use of an AR15 auto sear found at his house
was prejudicial error, entitling him to a new trial. The court decides
that the use of the sear was fine to rebut his claim that he did not
realize he was doing anything wrong when he made the silencers, and in
any case he didn't have any defense to the shotgun charge, and thus the
admission of the sear did not make any difference on that charge.
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U.S. v. Lemmon, 1993 WL 337472 (9th Cir. 1993)
In this case the court upholds the defendants conviction for possessing
an unregistered short shotgun and silencer. The court finds that the
jury properly rejected the defense that the defendant did not know
making silencers was illegal. The court also affirms the use of AR-15
auto sears found at the defendant's house to rebut his claim that he did
not think he was doing anything wrong, in that the sears were for making
illegal guns, the court concludes. The court holds that the jury was
entitled to disbelieve his story that the sears were for changing tires.
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U.S. v. Lewitzke, - F.3d - (7th Cir. 1999)
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U.S. v. Limatoc, 807 F.2d 792 (9th Cir. 1987)
In this case the 9th circuit affirms the suppression of an AR-15 rifle
converted to a machine gun as evidence in a prosecution for possessing
the unregistered gun. The court agrees with the trial court that the
rifle was not seized in compliance with the 4th amendment. While the
ATF agents, at the completion of a search pursuant to a search warrant,
claimed to be now starting an administrative inspection of the
defendant, and then discovered the rifle, the administrative search was
not during the defendant's business hours, and was thus not legal on
that basis. Since the agents had no lawful basis to be on the
defendant's premises after completing their search warrant, during which
the AR-15 was not discovered to be fully automatic, they could not claim
to have found it in plain view either.
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U.S. v. Lopez, 2 F.3d 1342 (5th Cir 1993)
This is the 5th circuit opinion in the case that was
upheld by the Supreme court, holding that the Gun Free School Zones
Act was unconstitutional, as beyond the power of Congress. I think
the 5th circuit opinion in this case should be critical to how the
Bownds case comes out. Also check out
footnote 46.
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U.S. v. Lussier, 128 F.3d 1312 (9th Cir. 1997)
In this case the 9th circuit upholds the defendant's conviction for
being a felon in possession of a firearm, a destructive device. The
court finds that the CO2 cartridge gadgets were bombs, even though they
were homemade. The court also decided that even though the things were
homemade, the government did not have to prove the defendant intended
them to be weapons, if they could prove that they were in fact weapons.
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U.S. v. Luce, 726 F.2d 47 (1st Cir 1984)
In this case, the 1st circuit interprets the definition
of silencer before it was changed to include parts, to see if an
unassembled silencer is regulated. The court decides yes, and doesn't
really decide about parts kits (in the pre 5/19/86 time, they are
definitely not regulated) that are not complete enough to assemble a working
unit.
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U.S. v. One U.S. (TRW) 7.62mm M-14 National Match Rifle,
Serial No. 143711, 1980 WL 95647 (S.D.Ohio, May 20, 1980)
In this case the trial court turns down an ATF attempt to
forfeit a TRW M-14 rifle, built by TRW as a National Match
rifle. The court decides that ATF failed to prove the gun was
a machine gun, as ATF argued - the gun was not registered
as anything. ATF claimed the gun was readily restorable to
a machine gun, and tried to prove that by welding the selector
lockout to the lug on a regular M-14, then restoring that gun
to take a selector. However, the court found that they did not
weld the lockout in the manner that was done on the NM guns, nor
did they refute the evidence that the NM guns never were machine
guns, but were made as semi-autos at TRW.
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U.S. v. Mack, 164 F.3d 467 (9th Cir. 1999)
In this case the 9th Circuit decides that a gun dealer given
unregistered NFA weapons by local police departments to destroy on their
behalf can be convicted of possessing those unregistered NFA weapons,
and that only police department employees can possess these guns to
destroy them without violating the NFA.
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U.S. v. Mains, 33 F.3d 1222 (10th Cir. 1994)
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U.S. v. Malone, 546 F.2d 1182 (5th Cir. 1977)
In this case the 5th circuit decides that a set of parts for
making a destructive device must include all the parts, and that
an absence of explosives (a can of Play-Doh in this case, who knows
what he was thinking) means that a collection of parts cannot, per
se, be a desctructive device.
The court also decides, as ATF concedes, that the collection of parts
could not have been registered, as ATF will not take a registration
on an alleged bomb that lacks explosives, and thus it could not have
been registered. This also negated the charge of possessing a DD
without a serial number.
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U.S. v. One 6.5mm Mannlicher-Carcano Military rifle, 250
F.Supp. 410, (N.D.Tx. 1966)
-
U.S. v. One 6.5mm Mannlicher-Carcano Military Rifle, 406 F.2
d 1170 (5th Cir. 1969)
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U.S. v. Mares, 208 F.Supp. 550 (D.Colo. 1962)
This is the decision of the district court upholding a
conviction under the pre-68 NFA. The defendants were
charged with possessing an NFA firearm made in violation
of the law. The court decides that that charge is not
void for compelling self-incrimination, as it does not
require registration, mere possession is what constitutes
the offense. The court also decides that the certificate of
the custodian of the Registry is sufficient and admissible to
prove that no application to make the guns was ever filed,
and thus they were made in violation of the statute.
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U.S. v. Mares, 319 F.2d 71 (10th Cir. 1963)
This is different but related to, the other us v mares case.
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U.S. v. Mastro, 570 F.Supp. 1388 (E.D.Pa. 1983)
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U.S. v. Matthews, 438 F.2d 715 (5th Cir. 1971)
In this case the court upholds the conviction of a former soldier who
brought back a war trophy machine gun from Vietnam. For unexplained
reasons he failed to register it during the Amnesty, and as a result the
court upheld his conviction for possessing an unregistered machine gun.
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U.S. v. Maxim, 55 F.3d 394 (8th Cir. 1995)
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U.S. v. Mayo, 705 F.2d 62 (2nd Cir. 1983)
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U.S. v. McArthur, 108 F.3d 1350 (11th Cir. 1997)
In this case construing 18 USC 930, the ban on firearms
in federal buildings, the court decides that the requirement
that the building be posted that firearms are prohibited,
which the law states is an absolute bar to conviction if missing,
is a defense to be proved by the accused, and that the
government does not have to prove the building was posted in
order to secure a conviction.
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U.S. v. McCabe, 792 F.Supp. 616 (C.D.Ill. 1992)
In this case, mostly overruled by the 7th circuit in
U.S. v. Vollmer,
the trial court upholds the conviction of FJ Vollmer Co. for defrauding
the US by buying Steyr AUG-SA rifles from a Illinois National Guardsman
who procured the guns from the importer with government use certificates of
dubious truthfulness. The Guardsman was found out, and promptly agreed
to help ATF entrap Vollmer. Who says ATF doesn't keep the world
safe from gun dealers?
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U.S. v. McCauley, 601 F.2d 336 (8th Cir. 1979)
In this case McCauley contended a Jap 96 machine gun he was
trying to sell was not within the definition of a machine gun
because it could not fire more than one shot with a single
pull of the trigger because it lacked a magazine, and magazines
could not be procured. While the court acknowledged there could
be a case where essential parts were missing, and not able to
be fabricated, and thus remove a gun from being a machine gun,
in this case both the mags, and converted MG13 mags were available,
and thus the argument failed as a factual matter. The fact that
the gun was missing the mag, in itself, did not remove the gun
from the scope of the Act.
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U.S. v. McCollom, 12 F.3d 968 (10th Cir. 1993)
In this case the 10th circuit holds that Dalton
does not apply to any guns except post-86 mg's, as other NFA
weapons (short shotguns for instance) can still be registered, the
government is not precluded from accepting the registration. The
fact that if one is a felon it is essentially impossible is too
bad. The court also analyzes the case knowing that their
Staples
case was about to be reversed by the Supremes, and decides that the
feds need not prove he knew it was illegal to have a unregistered
SBR or mg, but did show he knew the guns were under the legal
lengths, and could fire more than one shot with a pull of the
trigger...and thus even under Staples
the conviction stands.
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U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971)
This case concerns a guy caught with a sawed-off
single shot shotgun. The court affirms his
conviction, saying that it does not violate the
5th amendment right against self-incrimination,
according to the Freed case, nor the 4th amendment
right against unreasonable searches, for the same
reason it does not violate the 5th amendment, it compels
no registration or providing of information from illegal
possessors of NFA weapons. The court also cites the
Miller case, without much more, for rejecting
an argument based on the 2nd Amendment.
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U.S. v. McGill, 74 F.3d 64 (5th Cir. 1996)
In this case McGill wanted to have ATF release his firearms
disability (he couldn't own guns because he had been convicted of
felony tax evasion). ATF advised him it could not act on his request, as
Congress had forbidden it to spend money on releasing firearms
disabilities from individuals (they can still do it for corporations).
He took his case to court, as the third circuit decision in
Rice v. BATF suggested. The 5th
circuit rejected Rice, and decided that Congress
had repealed the section of the GCA providing for relief from disability,
by the approprations bills that forbade spending money on that activity.
McGill has appealed to the Supreme Court.
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U.S. v. McKie, 112 F.3d 626 (3d Cir. 1997)
In this case under Virgin Islands law, the court reverses the
conviction of the defendants for possessing 3 handguns without
having registered them as required by law. As the statute in
effect when the defendants possessed the firearms gave possessors
24 hours to register them, and as the government failed to
contradict the defendants evidence that they bought the guns less
than 24 hours before they were arrested, they could not be
convicted. The defendants also argued that the government had to
prove they had possessed the firearms for more than 24 hours - in
other words that the clause of the law an exception to the offense, and
not an affirmative defense. The court disagreed, but since the
defendants had put on evidence as to the issue, and treated like an
affirmative defense, and the government had failed to negate it,
they were not guilty. The court also notes that one of the handguns,
a TEC-9, is a machine gun under Virgin Islands law, as is any semi-automatic
firearms that shoots more than 12 rounds w/o being reloaded.
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U.S. v. Meade, 986 F.Supp. 66 (D.Mass. 1997)
In this decision a federal trial court upholds the ban on persons
convicted of domestic violence misdemeanors from possessing weapons.
The court, without discussion decides that the law does not violate the
ex post facto clause of the constitution, since it is not punishment to
deny people the right to own a firearm, and since the law only applies
to conduct that occurred after it was enacted. The court also decides
that the doestic violence crime need not have as an element of the
offense that it was committed against a family member, only that it was
in fact committed against a family member.
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U.S. v. Meade, 175 F.3d 215 (1st Cir. 1999)
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U.S. v. Meadows, 91 F.3d 851 (7th Cir. 1996)
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U.S. v. Melancon, 462 F.2d 82 (5th Cir. 1972)
This case is about a gun dealer who was caught by ATF with
a number of items ATF apprently thought were NFA weapons. Most
of the charges, including possessing a semi-auto Colt AR, and
various artillery practice rounds and simulators, were
thrown out. He was convicted of possessing an unregistered
PPsh-41 SMG, and a Japanese Knee Mortar. He argued the PPsh
wasn't an mg since it had no mag, and ATF never even tried to
get it to fire more than one shot with one pull of the trigger
(tough to do when the gun has no magazine). The court said
that wasn't a problem, if nothing else it was a machine gun
receiver. He also argued the Knee Mortar wasn't a DD, since
there was no ammo, explosive or not, that could be used in it.
The court decided that didn't matter, it was a weapon, it had a bore
over 1/2", and the lack of any ammo didn't matter. Compare
that to the 1980 7 Misc. Firearms case,
where the judge decided,
in part, that a lack of ammo for a Gyrojet pistol meant it
couldn't be a DD.
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U.S. v. Melville, 309 F.Supp. 774 (S.D.N.Y. 1970)
In this case the court rejects a challenge to the post-68 NFA, on self
incrimination grounds. The defendants were charged with possessing
unregistered bombs. The court decides that the law no longer requires
self incrimination as a condition of complying with the law, and that
the only way for the defendants to comply with the law was to not take
possession of the bombs, that was the only crime, not failing to
register.
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U.S. v. Metzger, 778 F.2d 1195 (6th Cir. 1985)
Metzger was a bad actor; he killed his wife with a
bomb (a DD). He was already a murderer, and a rapist. And some
interesting stuff comes out of this case. For instance regular
dynamite, with a blasting cap, is a DD. Don't ask me how you are
supposed to use the stuff, w/o paying a $200 tax each time you put
the two together, or being a type 10 FFL. That is a rather silly
holding, and seems a little expedient, to uphold a government case
that may have been poorly prepared. But the issue of when an
explosive, or an explosive device changes from legitimate use, to
the evil DD is very unclear. Assembling a charge, and not using
it immediately, safety aside, may well be a violation of the NFA.
It seems a lot of it has to do not with the item, but what you plan
to do with it; do you plan to use it as a weapon? Items not meant
as weapons are not NFA weapons, even if they otherwise fit the
bill. Secondly, the government may not prove you failed to pay the
making tax by merely showing the NFA weapon was not registered to
you, as the tax is paid before registration. They have to show
more than that a search of the NFA Registry failed to show the item
in question was registered to you. That is sufficient to make the
case you possessed an unregistered item however. Then the
defendant may offer evidence as to the unreliability of the
Registry.
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U.S. v. Michael R., 90 F.3d 340 (9th Cir. 1996)
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Compilation of U.S. v. Miller documents by Patrick L. Aultice
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U.S. v. Miller, 26 F.Supp. 1002 (W.D. Ark. 1939)
This is the less than one page decision of the
federal district court that voided the NFA on 2nd amendment grounds,
that was itself overruled by the Supreme Court just a few months
later.
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U.S. v. Miller, 105 F.3d 552 (9th Cir. 1997)
In this case the 9th circuit decides that a person charged
with being a felon in possession of firearms and ammunition
can only be convicted of possesing the firearm, since Oregon
law, where he was convicted of the felony, does not bar him
from possessing ammunition. However since he was caught with
a handgun, and Oregon does bar him from possessing handguns (and
machine guns) as a felon, he can be convicted on that charge.
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U.S. v. Mitchell, 462 F.2d 583 (9th Cir. 1972)
In this brief case the 9th circuit decides that in a prosecution for
conspiracy to steal government property, two M-14 rifles, a stipulation
by the defendants that the rifles cost the government more than $100 was
conclusive evidence as to their value, and thus made their attempted
theft a felony, rather than a misdemeanor.
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United States v. Mitchell, 209 F.3d 319 (4th Cir. 2000)
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U.S. v. 16,179 Molso Italian .22 Caliber Winlee Derringer
Convertible Starter Guns, 443 F.2d 463 (2nd Cir 1971)
This case concerns the
meaning of the "readily converted to expel a projectile" stuff in
the definition of a firearm in the GCA, but could certainly apply
to the readily converted concept in the NFA also. In this case
the guy imported a bunch of starter pistols from Italy, and ATF
found they could drill out the barrel and get it fire .22 shells
within 15 minutes, at the outside. The court agreed this time
limit was readily convertible. The guns were seized and forfeited,
as the importer was not an FFL, and had not applied for permission
to import the guns.
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U.S. v. Moore, 84 F.3d 1567 (9th Cir. 1996)
This is the panel decision, reversed in the
en banc decision below.
-
U.S. v. Moore, 97 F.3d 561 (D.C.Cir. 1996)
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U.S. v. Moore, 109 F.3d 1456 (9th Cir. 1997)
In this case the 9th circuit, sitting en banc,
rehearing the 9th circuit
moore case from 1996, decides that a
woman whose underage son bought a pistol with her permission, but
with a family friend as the buyer, can be convicted of conspiracy
tro violate the GCA, for facilitating a straw sale. The son later
used the gun to murder an Idaho police officer. The court, reversing
the panel decision (also on the web page), decides that while maybe
it is OK for a parent to buy a handgun for their child, even though
they are not the actual buyer, and even though they are buying for
someone ineligible to buy a handgun (ie the classic straw man
transaction) they cannot authorize someone else to do this on
their behalf, and further, the court declines to even address any
potential exception for a parent to buy the gun themself.
In short, the fact that the 4473 forces all straw buyers to lie
on the form, even though ATF claims some straw transactions are OK
as far as they are concerned, means that if the child later uses the
gun to commit a crime the parent can be successfully prosecuted later,
if the feds decide to do so. At least in the 9th circuit, other, less
authoritarian circuits would likely decide this case differently.
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U.S. v. Moschetta, 673 F.2d 96 (5th Cir. 1982)
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U.S. v. Munoz, 150 F.3d 401 (5th Cir. 1998)
In this case the court upholds a conviction for possesssing an
unregistered short barreled shotgun, as the shotgun was found in the
defendant's home, and he said it was his. This in spite of the fact
that the government misidentified the gauge of the shotgun, and seized
it without a warrant. The court says that the warrantless seizure was
legal under the plain view theory, since the defendant was a felon, and
he could not have any firearm, therefore the firearm was per se
contraband in his possession, and was evidence of a crime in itself.
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U.S. v. Muntean, 870 F.Supp. 261 (N.D.Ind. 1994)
In this case Muntean was charged with submitting a NFA transfer
form with false information on it; specifically he was accused of
submitting a form 4 to a CLEO, with a phony home address on it.
Presumably his local chief wouldn't sign, and he was trying his
luck elsewhere. Somehow the ATF found out; perhaps from the chief
he was trying, he sent that guy a letter asking him to drop any
work on the form 4's. In any case the court decides that in order
for their to be an offense the forms either need to be submitted to
ATF, or submitted to someone who will then submit them. In this case,
as a practical matter, neither happened. ATF claimed that somehow
the Chief of Police owuld send them to ATF; as Muntean did not
get a chance to rebut that, the court did not dismiss the case, but
allowed Muntean to withdraw his guilty plea (what was he thinking)
and proceed to trial. Hopefully he got the case dismissed, as anyone
with half a brain knows, including ATF, the dealer, or transferor
submits the form, except in the cases where the transferor fills his stuff
out completely, and then the transferee sends the form to ATF. In no
case does the CLEO send it to ATF. What is most remarkable is that
ATF brought this case at all. Pretty low.
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U.S. v. Murphy, 53 F.3d 93 (5th Cir. 1995)
This case is one from the 5th circuit after the
Supreme court decision in Lopez, which addresses
whether they Lopez
decision meant, as it seems, that no nexus to interstate commerce
would be sufficient to revive the Gun Free School Zones Act. In
this case the prosecutor tried to amend the indictment to reflect
that the gun in question was shipped interstate. The court said
that didn't help, the Supremes had decided no connection between
interstate commerce and gun possession in school could bring that
issue under the jurisdiction of the Congress. Some may recall that
for a time the Klinton Justice Dept., commanded by Klinton to "find
a way" around Lopez, suggested limiting the law to
guns that had moved in interstate commerce. They have apparently dropped this
idea for an amendment, and are now suggesting Congress deny federal
school money to states that don't ban gun possession at schools.
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U.S. v. Myers, 1999 WL 475571 (8th Cir. 1999)
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U.S. v. Nevius, 792 F.Supp. 609 (C.D.Ill. 1992)
This decision is from the criminal prosecution ATF brought against
FJ Vollmer's, and others, for trying to circumvent the sales
restrictions ATF forced Gun South to put on the AUG-SA rifles trapped
in Customs when ATF redefined sporting, in the gun context. In
this case, the court rejects a motion to dismiss, before trial, on
various grounds. See the US v. Vollmer case
for the final outcome of this prosecution.
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U.S. v. Newman, - F.3d - (10th Cir. 1997)
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U.S. v. Nguyen, 88 F.3d 812 (9th Cir 1996)
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U.S. v. Oakes, 564 F.2d 384 (10th Cir 1977)
This is another case holding that the 2nd amendment
means states can have a militia not that individuals can own any
firearm. In this case Oakes had an unregistered machine gun, that
had been confiscated from him, because of a domestic dispute by
the Kansas City, Kansas PD, and welded up and returned. He re-
activated it at some point, and sold it to an undercover ATF agent.
He claimed, in part, that the gun was not a machine gun because it
used two triggers; you pulled the front one and it shot semi-auto,
you pulled it all the way back and it engaged a second stub, the
court also called that a trigger, and fired full auto in that
position. The court said it was a machine gun, as you needed to
only pull the front trigger to make it fire full auto. The court
indicated it was a German SMG, anyone know what it was, based on
that description? He also claimed because he was part of the
unorganized Kansas militia, by law, and because he belonged to the
Posse Comitatus (probably why he was being set up by ATF) a militia
group, his possession of the gun was protected by the 2nd
amendment. The court said that would lead to the result where
possession was OK, and that was absurd, and refused to agree the
2nd amendment means anything more than the states can have a
militia. Oakes also claimed the gun was OK because the cops had had
it, and then returned it, so it must not be an MG. The court
ducked that one, claiming that because the cops gave it back to him
welded up, and he removed the welds, was enough to negate any claim
the gun had been determined not to be an mg; even though if it was
an mg live, it should have been an mg welded up too.
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U.S. v. Oba, 448 F.2d 892 (9th Cir. 1971)
In this case the 9th circuit decides that a dynamite charge that the
defendant intended to be used to blow up Eugene, OR, was a destructive
device, based on his intended use of the charge, even though the exact
same charge was used in lawful pursuits all day long. The dissent makes
a good case that such a construction of the law makes it violate the 5th
amendment right against self incrimination (the device is only subject
to registration if you plan to use it criminally, thus only criminals
need to register their devices, the law abiding do not) and that the
construction of the statute employed by the majority is wrong. However,
this theory is the prevailing one in a majority of courts of appeals.
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U.S. v. O'Mara, 963 F.2d 1288 (9th Cir. 1992)
This is a case of a guy caught with a STEN gun
after he shot it during a visit to the Joshua Tree National
Monument in Calif... In any case, in this
pre-Staples case
the court decides that the government need not prove that he knew
the gun could fire full auto, as the gun had an external selector
switch, and thus if one had it at all they could/should know it
was a full auto. The 9th circuit did require the government prove
the defendant knew the NFA nature of the weapon, before Staples, if
the gun appeared to be ordinary from the outside, and only internal
modification made it an NFA weapon.
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U.S. v. O'Mara, 827 F.Supp. 1468 (C.D.Cal. 1993)
In this case a federal district court in
California decides to ignore Kurt, above and
holds that 922(o) does
not repeal the NFA as applied to post-86 mg's, and that the court
above it was wrong when it decided otherwise. This is an odd case,
it sure should have been appealed, I don't know if it was.
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U.S. v. One Colt Machine Gun, Model MG-52-2, 625 F. Supp. 1539 (S.D. Fla 1986)
This was an attempt by ATF to forfeit a gun they
claimed was transported or imported w/o a 5320.20, or an import
permit. A guy in Fl owned a legal .50 cal Colt mg. He brought it
out on his boat, and was showing it off, and fishing. When he came
back to port, Customs and the police went to talk to him, found
out he had been out to sea, and had the mg, and seized it, and
attempted to take it, by this case. The judge told the US no. He
said that a gun has not moved in interstate commerce if you take it
out of one state, and w/o going to another state bring it back to
where you left from. Likewise the gun could not be imported in
violation of the NFA if it never went to a foreign nation, and then
came back, to be sold here. Since there was no intent to sell, and
the gun never went to another country, it was not imported, it
never left. Plus the guy in the boat never went outside the 12
mile limit the US exercises jurisdiction in. Bottom line; you
should be OK if you take your guns out on a boat, and don't land or
go to another state, or country. If you do want to do that, you
need a 5320.20. BUT, ATF will apparently hassle you anyway, even
if you just went out to sea.
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U.S. v. One Minneapolis Palm Protector Pistol, etc., Case
No. 18450-PH (S.D.Cal., March 31, 1956)
Reprinted in Federal
Firearms Act: Hearings before the Subcommittee to Investigate
Juvenile Delinquency, Senate Judiciary Committee, 89th Cong., 1st
Sess., at 835-37 (1965)
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Brief of US in US v. One Remington 12 Gauge Shotgun, Serial number 322336V, (11th Cir. 1982)
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U.S. v. One Remington 12 Gauge Shotgun, 709 F.2d 1468 (11th Cir. 1983)
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U.S. v. Ordner, 554 F.2d 24 (2d. Cir 1977)
In this case the second circuit upholds a conviction for
possessing and transferring unregistered pen guns, despite
the defendant having been otherwise law abiding and not
suspected of criminal activity before ATF targeted him with
a sting where agents and informants pretended to be an
organized crime family a la the Godfather movies. The court
says that while the defendant made out a case for entrapment,
the jury was entitled to believe the government's rebuttal
of that defense.
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U.S. v Osuna, - F.3d - (10th Cir. 1999)
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U.S. v. Otto, 64 F.3d 367 (8th Cir. 1995)
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U.S. v. Owens, 103 F.3d 953 (11th Cir. 1997)
In this case a gun store clerk is convicted of possessing
an unregistered short barreled rifle - a mini-Uzi
rifle he offered to sell an undercover ATF agent, with an accessory
short barrel. He contended since the barrel wasn't on the gun
the Thompson/Center case
meant it wasn't a short rifle. The agent
claimed, and the jury found, he had put the barrel on the gun,
apparently to show the customer the barrel fit the gun. Accordingly
the court found that Thompson/Center didn't apply to an assembled
short rifle.
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U.S. v. Padilla, 819 F.2d 956 (10th Cir. 1987)
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U.S. v. Palmer, 435 F.2d 653 (1st Cir. 1970)
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U.S. v. Palmieri, 21 F.3d 1265 (3d Cir 1994)
In this case the defendant's conviction for dealing in firearms
w/o a dealer FFL, and for transferring a C&R machine gun in violation
of 922(o) are upheld. While Palmieri had a C&R FFL, and only
sold three C&R pistols to an ATF stooge, the court decided the
jury could decide that was dealing w/o an FFL, in spite of
jury instructions that told the jury it was flat out illegal for
anyone to sell any firearm at all w/o a dealer FFL. Additionally, since
the GCA, of which 922(o) is a part, says it is expressly legal
for C&R FFL holders to transfer C&R machine guns, as does the
C&R list put out by ATF, the defendant argued a C&R transaction by
a C&R licensee is not prohibited by 922(o) (Palmieri didn't comply with
the NFA either, but wasn't charged with that). One judge disagreed,
claiming 922(o) only allows those who had a machine gun on 5/19/86
to keep it, and flat out forbade any further transactions, including
sales by lawful owners, except to the government. A novel thought,
considering the thousands of transfers to individuals ATF has
approved since then, all apparently in violation of 922(o), according
to this court, since ATF may not approve a transfer that will put the
transferee in violation of law, under the NFA. A second judge
otherwise with the majority, thought the issue was waived, since
he claimed it was not raised with the trial court. And the third member
of the panel dissented, and thought that a C&R machine gun transaction by
a C&R licensee was not prohibited by 922(o), whether it was done in violation
of the NFA or not. The conviction was reversed without comment by
the Supreme Court, citing their new
Staples decision (the majority
also rejected the argument that the defendant didn't know the gun
was a machine gun, since it lacked a bolt, and he apparently
didn't know whether it would fire automatically or not). The reversal
didn't answer the question about the meaning of 922(o) - this court
apparently rejected the Farmer case,
although they didn't say so, and also the interplay between 922(o) and
the C&R FFL provisions of the GCA.
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United States v. Palozie, 166 F.3d 502 (2nd Cir. 1999)
In this case the 2nd circuit court of appeals decides that the Supreme
Court's Scarborough v. US decision
also applies to 18 USC 922(g), even
though the language of that law is a little different than that in the
statute (18 USC 1202) being construed by the Supreme Court. The court
decides that all that must be shown as to interstate commerce with a
firearm a felon is accused of possessing is that it moved in interstate
commerce at some point in its life, not that the felon's possession of
it bore any relation to interstate commerce.
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U.S. v. Parker, 566 F.2d 1304 (5th Cir. 1978)
In this case the court rejects the argument that momentary possession of
an unregistered sawed off shotgun for purposes of self-defense is a
valid reason for violating the NFA. While the court did not rule out
such an argument entirely, they said that in this case, since he
continued to possess the shotgun after the alleged danger passed, he
couldn't claim he only possessed the shotgun for self defense.
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U.S. v. Parker, 960 F.2d 498 (5th Cir. 1992)
This case doesn't have a whole lot to do with NFA
guns; Parker was a felon caught with guns, including a sawed off
shotgun. The main point here is the 5th circuit re-stating that the
basis of the NFA is in the taxing power, not the commerce power.
Contrast that to Metzger, noted below, where the 6th circuit says
that the NFA is based in Congress' taxing or commerce power,
whichever can conveniently sustain it at the moment. What
Constitutional power the NFA is rooted in is important; if it is
amended to no longer collect a tax it is void. This is the basis
of the Rock Island and
Dalton cases. On the other hand if the NFA
is considered (Constitutionally) under the Congressional Commerce
power, then a failure to raise revenue is not fatal. The 5th
circuit thinks it has to raise revenue; which helps explain their
bizarre reasoning in the Ardoin case; pretending you can pay the
tax on a post-86 machine gun when you cannot. On the other hand
some other circuits don't care, and will uphold the NFA on the
basis of some sort of commerce power, despite the legislative
history, and the NFA's location with the other internal revenue
laws (26 U.S.C.), to the contrary.
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U.S. v. Partington, 21 F.3d 714 (6th Cir. 1994)
In this case the court of appeals upholds an enhancement of
the defendant's sentence for dealing in firearms without an FFL,
for possessing an unregistered short barreled rifle. The gun was
a bolt action .22 JC Higgins, without a bolt. The evidence was
that he had it for parts, and not for sale as part of his
illegal firearms dealing business. Despite that, the court said
that it was an illegal gun, which he had while committing other
gun crimes, and even though he was not prosecuted for having it,
his sentence on the dealing charge could be enhanced by his
possession of it, to a greater sentence (but still within the
maximum possible sentence for unlicensed dealing) than he would have
otherwise received.
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U.S. v. Pearson, 8 F.3d 631 (8th Cir. 1993)
In this case the 8th circuit reaffirms their decision in
US v. Hale,
that 18 USC 922(o), the ban on owning machine guns made after 5/19/86,
is a lawful exercise of the police power, citing to at least one
case, US v. Evans, that was overruled
(in its analysis) by the Supreme Court in US v. Lopez.
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U.S. v. Petrucci, 486 F.2d 329 (9th Cir. 1973)
In this case the court of appeals upholds a warrantless seizure of
firearms from a gun dealer, as valid under the administrative search
provisions of the GCA. The court also rejected any requirement that the
firearms have moved in interstate commerce in order to be a valid
exercise of the interstate commerce power, and also refused to consider
a claim that the record keeping requirements of the GCA violated the
right against self incrimination, since the defendant had not raised
that argument in the trial court.
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U.S. v. Pierson, 139 F.3d 501 (5th Cir. 1998)
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U.S. v. Polk, 118 F.3d 286 (5th Cir. 1997)
In this case the 5th circuit upholds a conviction for violating
922(o), contrained by the precedent of Knutson,
in holding that the law is a valid exercise of commerce clause power.
More interestingly, the court impliedly rejects the 9th circuit
en banc decision in US v. Moore, and decides
that the defendant cannot be convicted of a straw purchase where the true
purchaser, acting through the strawman, could have legally
purchased the gun himself, as the defendant who orchestrated
the alleged straw purchase at hand, could have. The court said there
can only be a straw purchase where the true buyer, acting
through the strawman, was legally unable to buy the gun himself, and
not just because he used a strawman.
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U.S. v. Porter, 335 F.2d 602 (9th Cir. 1964)
Porter was caught with, and convicted of, possessing a sawed-off
shotgun, as part of what appears to be one of the very few legitimate
investigations and prosecutions under the NFA. The main item of
interest is his contention that absent evidence the sawed-off is
unregistered, the police do not have probable cause to seize it
when they find it during an otherwise legal search. The court disagrees,
and says given the facts of the case, his giving the police a phony
name when arrested, his being wanted for bank robbery, there is no
basis for the police to believe the gun is registered, and thus legal.
Under different circumstances the balance might weigh otherwise, although
the court says the a sawed-off shotgun in private hands in inherently
suspicious.
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U.S. v. Porter, - F.3d - (10th Cir. 1997)
In this unpublished case, the 10th circuit decides that
a short barreled shotgun in plain view may be seized without
a warrant, as it is contraband on its face. Contrast this
with the 6th circuit cases in Gray,
Beal and
Szymkowiak where
guns that did not appear to be contraband could not be seized
without a warrant. On the other hand, presumably a short shotgun
by virtue of its short barrel, appears to be an illegal gun
and thus may be siezed when found in plain view.
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U.S. v. Posnjak, 457 F.2d 1110 (2nd Cir. 1972)
In this case the 2nd circuit rejects the reasoning of
US v. Oba, and
follows the district court decision in
US v. Schofer, that the intent of
a person to use something as a weapon does not make it into a
destructive device, but rather the properties of the item in quesiton
determine whether it is a DD or not. In this case the defendants were
charged with unregistered DD crimes for selling a large quantity of
dynamite, safety fuse and blasting caps to an undercover federal agent
who told them he needed it for terrorist activities. The court decided
that dynamite and other commercial blasting supplies were not covered by
the law, in themselves. Whether intended for legal or illegal uses,
commercial explosives were not among the listed items. Using the
dynamite to make a bomb, could bring the dynamite, along with the rest
of the bomb, under the law. But not the explosive material by itself.
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U.S. v. Poulos, 895 F.2d 1113 (6th Cir. 1990)
This case concerns a guy who wanted to open an
S&L bank, and I guess sort of shows why a lot of them were looted,
and went belly up, if others were run by guys like this one...
In any case while the IRS was trying to entrap him into money laundering
they discovered he had connections to get unregistered silencers.
The IRS undercover guy got him to assist in supplying one, although
most of the supplying was done by others, and he was convicted of
that. Poulos also had pre-86 silencer kits he had gotten in 1984, and
which were discovered when the IRS was searching his house for
financial records. He was prosecuted for having unregistered
silencers, and his defense was that they were legal when he got
them, and he never got a chance to register them, and thus the
law was unfair, from a due process point of view. The court didn't
ever address the continuing problem of the lack of an amnesty to
register silencer parts - they decided, based on the evidence that
the kits were really complete silencers, just in a slightly
disassembled state. Apparently the guy had both the internals and
tube for a two stage MAC type silencer.
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U.S. v. Price, 877 F.2d 334 (5th Cir. 1989)
In this case the court upholds the conviction of a Texas FFL
dealer for possessing unassembled hand grenades. He was also
charged, after a sting operation with selling unregistered machine
guns, and possessing an unregistered silencer, but was acquitted
of those charges. He argued that as the individual component parts
were not regulated, the set was not either, unless assembled. The
court disagreed, deciding that the set which could be readily assembled
into a complete grenade was a regulated item.
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U.S. v. Pruess, 94CR00019, (W.D.N.C. 1994), docket listing
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U.S. v. Pruess, 97CR00300 (W.D.N.C. 1997), docket listing as of 4/99
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U.S. v. Qualls, - F.3d - (9th Cir. 1998)
In this en banc 9th circuit case, the court decides that the extent of
the federal felon in possession of a firearm statute is governed by
state law, where the felony in question is a state conviction. This is
because the definition of whether someone is convicted of a felony is to
be determined under the law of the state of conviction (when it is a
state conviction that is at issue). In this case, at the time the
defendant was convicted under California law he was only prohibited from
possessing handguns and other concealable firearms, and not rifles and
shotguns. The court decides that under the federal law he can only be
proseucted for possessing firearms he cannot possess under state law
either, and thus the conviction is reversed.
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U.S. v. Rambo, 74 F.3d 948 (9th Cir. 1996)
Yup, the guy's name in Rambo. He was caught in Montana with a
machine gun and silencer, after they were recovered from some guy
who stole them from him. He made several arguments. Among them
that the making ban, 922(o), was outside Congress' power under the
Commerce clause, and thus void. The court disagrees and follows
the 5th and 10th circuits, in Wilks and
Kurt, in upholding it, in spite of
the Lopez Supreme court decision. The court also
rejects the idea
that it was not proven that he knew the nature of the weapons that
put them under the Act, relying on the testimony of an ATF "expert"
who claimed you could tell the automatic nature of the machine gun, and
the silencing nature of the silencer w/o ever using them. The court
decided that, together with the possession, justified the jury in
inferring that Rambo knew the nature of the guns. The court also rejects
a complaint that the local law enforcement prejudiced his case by
extensively firing the machine gun and silencer after they were told not
to by ATF. The court disagrees, Rambo wanted to be able to show he
never handled the guns, and thus hand't seen them, by having them
checked for fingerprints. The court saw no prejudice, given that he
admitted privately to the county sheriff, after his arrest, in what
he thought was a private conversation between friends, that the gun and
silencer were his, and illegal.
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U.S. v. Ramirez, 103 F.3d 1501 (9th Cir. 1997)
In this case the 9th circuit decides that in order for the
sentencing enhancement for using a mahcine gun in a crime to
apply, the government needs to prove the defendant knew the
weapon in question was a machine gun. In this case ATF,
apparently without discussing it with the suspects (they
only spoke Spanish, and the agents only spoke English) decided
to make the guns they were trading for methamphetamine be
machine guns, perhaps to get the 30 year sentence enhancement
for the use of the machine guns, instead of the 5 year enhancement
for regular firearms, rather than regular title 1 type guns. The
court reversed and remanded for a trial on whether the defendants
knew they were getting machine guns for the drugs, and not regular
(or some other) guns.
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U.S. v. Ramsey, 429 F.2d 565 (5th Cir. 1970)
In this case the court upholds a conviction for possessing a sawed off
shotgun that was made in violation of the NFA. The defendant used it to
shoot another man over a card game. The court decides that the newly
revised NFA does not require any self incrimination, and that the
defendant was not obligated by the law to incriminate himself.
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U.S. v. Ranney, 524 F.2d 830 (7th Cir. 1975)
In this case the 7th circuit says that the
government need not prove the defendant knew the nature of the gun
he is charged with possessing, part of a long line of cases
overruled by Staples. The court
also says that the requirement
that a NFA gun have a serial number does not apply to permit
someone a period of time to serial number a gun, and thus avoid
prosecution for having an unserial numbered NFA weapon. This is
something Don Walsh found out the hard way also.
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U.S. v. Reddick, - F.3d - (10th Cir. 2000)
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U.S. v. Redmond, No. 97-3071 (10th Cir. December 16, 1997)
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U.S. v. Reed, 726 F.2d 570 (9th Cir. 1984)
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U.S. v. Reed, 114 F.3d 1053 (10th Cir. 1997)
In this case the 10th circuit upholds a conviction under
922(g) (felon in possession of a firearm) based on
the defendant possessing a broken pump shotgun, which
planned (based on uncontradicted evidence) to make into a
lamp as part of a adult ed welding class. The court decides
that he need not think the item was or was not in fact
operationsal, or otherwise fitting into the definition of
a firearm under 18 USC 921, as long as he was aware it
at least used to be a firearm, and as long as in fact it
still fit the definition. The dissent points to
Staples,
and suggests that the defendant needs to have been aware
of whatever characteristic the thing had that made it fit
in the definition of a firearm, not that he knew it
used to be a firearm.
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U.S. v. Ridlehuber, 11 F.3d 516 (5th Cir 1993)
In this case a guy is prosecuted for possessing a half-broken
and lame sawed-off shotgun in what the feds thought, but couldn't
prove, was an illegal drug lab. Although the case talks about other
stuff, the main point is what the court says in regard to the
application of Dalton to a sawed-off shotgun.
Ridlehuber said that
becuase the feds wouldn't let him register an existing sawed-off
shotgun, the logic of Dalton applied. How could
they prosecute
him for not having registered a gun they would not let him register?
The court rejects the argument. As I said in regard to the
Tepper
case, it seems to me that Dalton ought to apply here,
if it has any basis in reality. But it does not apply here.
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U.S. v. Rith, 164 F.3d 1323 (10th Cir. 1999)
In this case the 10th circuit upholds a conviction for possessing an
unregistered short barreled shotgun. In relevant part the court decides
that the admission by the defendant that he knew the gun was illegally
short, as well as proof of his observation and handling of the gun shows
he knew it had the characteristics which subjected it to the NFA, as
required by the Staples decision.
The court also decided that the NFA
Registry was sufficiently reliable so as to be used to prove the
non-registration of the gun, in spite of the Roll Call training by Tom
Busey, and related items, which the defense attorney received from the
government.
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U.S. v. Rivera, 58 F.3d 600 (11th Cir 1995)
In this case the court holds that the Dalton case
does not apply to a gun that still can be registered, as opposed to
a machine gun (a silencer in this case). Dalton voided
the NFA as applied to post-86 machine guns, as sec. 922(o) forbids
the feds from accepting the tax, or a registration application. The
court also notes that 3 circuits have rejected Dalton,
the 7th,
4th and 5th. The 7th circuit case, US v. Ross,
probably overrules
the Rock Island Armory case, as it is by a
higher court covering
the same geographic area. This court (11th cir.) also suggests it
would reject Dalton if the issue came before it. I think the
Supremes will be forced to take cert. on the
issue of the relationship between the NFA and sec. 922(o) at some
point, the current situation is pretty ridiculous, where something
is illegal in some places is different (still illegal though) in
others.
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U.S. v. Rock Island Armory 773 F. Supp. 117 (1991)
In this case the feds prosecuted RIA for making NFA weapons
after the making ban, and transferring them to civilians. They
prosecuted them under the NFA, where the specific crime is failing
to register or pay the taxes on the guns. This is a companion
case to Dalton, where the court decides that 922(o),
the making
ban, precludes registration or paying the tax, and the Feds may not
prosecute someone for failing to pay a tax they won't and cannot
accept. I don't know the facts of this case, I think it had to do
with the M-60 machine guns they made using serial numbers from
Stemple 76/45 tube guns... To the best of my knowledge the feds
did not re-prosecute this case under 922(o), as they did in the
Dalton case. Theoretically they could have.
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U.S. v. Rodriguez, 132 F.3d 208 (5th Cir. 1997)
In this case the 5th circuti upholds a conviction for selling firearms
to an out of state resident, where neither party has a FFL. The key
issue is whether the government showed the defendant "willfully" violated
that statute. The 5th circuit rejects the 2nd circuit decision in
US v Bryan, and decides that willfully must mean the
jury could decide the
defendant knew the conduct was illegal, and not just that the defendant
did it, knowing what he was doing. In this case the government showed
the defendant was familiar with the gun business, and that the defendant
was worried about the police stumbling onto the transaction, which was a
ATF sting operation. The court said the jury could infer from these two
facts that the defendant knew the transaction was illegal, that is it
was prohibited by law.
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U.S. v. Rogers, 94 F.3d 1519 (11th Cir. 1996)
In this case some guy who couldn't keep his mouth shut was
caught with an unregistered "MAC-11" machine gun and silencer.
The court decides that the
Staples decision does apply to a
prosecution under 18 USC 922(o), in that the government has
to prove the defendant knew the gun was a machine gun, although
Staples was only in the context of the NFA. Since the gun in this
case was a converted open bolt pistol, and the government didn't
prove he knew it was a machine gun, the court reversed the conviction
for the machine gun. For the silencer, the court also agreed Rogers
was entitled to have the government prove he knew it was a silencer,
for a prosecution under the NFA. However, since Rogers testified at
trial he knew it was a silencer, and told that to ATF agents in a
post-arrest interrogation as well, the court decided the error as to the
silencer jury instruction was harmless, as Rogers volunteered he knew
it was a silencer. It always pays not to shoot your mouth off...
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U.S. v. Rojas, 47 F.3d 1078 (11th Cir. 1995)
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U.S. v. Rose, 695 F.2d 1356 (10th Cir. 1982)
In this case the defendant thought the Uzi carbines he
bought looked lame with the 16" barrels they came with,
and cut them down to a length more like the Uzi machine guns
have. He got found out, and was prosecuted for possessing
and making short rifles. His main defense was that the
Uzi wasn't a "rifle" in that it wasn't designed and intended
to be fored from the shoulder, it was meant to be fired from the
hip. The government contended it was suitable for shoulder firing,
and sort of had to be, to be importable as sporting. The court
agreed, deciding that the gun needs to be suitable for shoulder
firing, even if it is also suitable for hip firing. The court
also decided that given that he did not contend he had registered
the guns, he was not entitled to a visit to the National Firearms
Registry in Washington DC. The court said that if someone made a
stronger showing of impeaching the accuracy of the Registry they
might be entitled to such a thing.
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U.S. v. Ross, 458 F.2d 1144 (5th Cir. 1972)
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U.S. v. Ross, 917 F.2d 997 (7th Cir. 1990)
In this case the 7th circuit upholds a gun
collector's conviction for possessing an unregistered Chauchat
DEWAT. What a gun to go down for... The court thinks it is
irrational for the government to have to prove the guy knew the gun
was a machine gun, comparing the 10 years you get under the NFA to
the crime of keeping an unclean warehouse. I kid you not. In any
case the main logic of this case was voided in
Staples, and the guy
got his conviction reversed based on
Staples, but only after he
finished his entire sentence, 3 years or so. Very, very, harsh.
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U.S. v. Ross, 9 F.3d 1182 (7th Cir.1993)
Although the result in this case was reversed by
the Supremes without an opinion, citing
Staples, the ruling in this
case that the 7th circuit disagrees with Dalton, is
still probably good law. In so deciding they overrule the
Rock Island Armory
case, which is out of a federal district court in Ill., which is in
the 7th circuit. The court adopts the logic (?) of the 4th circuit
opinion in Jones. So Dalton remains as the only
circuit court ruling that 922(o) impliedly repeals the NFA as applied to
post-86 machine guns. Until the 10th circuit reverses itself, or the
Supremes deign to resolve the issue. The D.C. district court also
approved of Dalton, in
Ferguson, although one could argue it is
dicta. Interestingly the court also seems to think that before the
FOPA amendments to the federal gun laws, that DEWAT guns were not
subject to registration. Not in 1968, but 1986. Interesting....
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U.S. v. Ruggles, 70 F.3d 262 (2nd Cir, 1995)
In this case the second circuit upholds the conviction of a felon
for possessing a sawed off H&R single shot shotgun. The court notes,
that sawed off shotguns have no legitimate use, and therefore possessors
should be squashed like bugs.
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U.S. v. Ruiz, 73 F.3d 949 (9th Cir. 1996)
Ruiz worked for an Arizona company that legally made stun grenades,
and apparently diverted some inventory for sale to an ATF informant.
He was charged with possessing unregistered destructive devices.
He defends himself on the basis, like the
Dalpiaz case, that the
things fit the definition but are not designed or redesigned as
weapons. The court agrees with the Dalpiaz case
(although they do not cite it) that the intent of the defendant is not relevant,
unless it is for a prosecution for possessing parts for a DD, in
which case showing they were meant for a DD is relevant. He claims
the items are not meant as weapons. The court disagrees, based on
testimony from ATF "experts" who say they are weapons, and that
ATF has classified stun grenades as DD's since 1980. Ruiz cleverly
calls an ATF agent who testified at the Branch Dividian trial that
the stun grenades employed there were not "weapons". I guess it
depends on where you are sitting, but the 9th circuit doesn't find a
problem with them not being weapons in one place, and are in another.
As long as the ATF agent they put on for the government says they are
weapons, it doesn't matter what other ATF agents say at other trials, or
say at this one when called by the defense (the ATF was not stupid enough
to call the agent who testified at the Branch Dividian trial themselves,
the defense called him). In short, the court decides the stun grenade
is meant for use as a weapon, and is thus a DD.
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U.S. v. Russell, 468 F.Supp. 322 (S.D.Tex. 1979)
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U.S. v. Rybar, 103 F.3d 273 (3d Cir. 1996)
In this case the 3d circuit rejects a challenge to the machine gun making
ban, 18 USC 922(o) based upon US v. Lopez (that it is
beyond Congress' Commerce Power to ban mere possesion of machine guns) and
based upon the second amendment.
-
Brief in US v. Rybar
-
Brief(2) in US v. Rybar
-
Brief(3) in appeal of US v. Rybar
-
Brief(4) in appeal of US v. Rybar
-
Brief(5) in appeal of US v. Rybar
-
Brief(6) in appeal of US v. Rybar
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Petition to US Supreme Court for certiorari in US v. Rybar
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U.S. v. Sanchez, 85 F.3d 549 (11th Cir. 1996)
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U.S. v. Sanders, 462 F.2d 122 (6th Cir. 1972)
This short case upholds, without discussion the constitutionality of
the NFA, citing Freed and two 6th circuit cases.
It also upholds a rather questionable, in my opinion, search of the defendant
that uncovered the sawed off shotgun in his pocket.
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U.S. v. Scherer, 523 F.2d 371 (7th Cir 1975)
This is a 1975 case, where ATF hounded an FFL
dealer, until they could catch him selling guns w/o doing the 4473
and bound book paperwork. He claimed the guns were his personal
collection, he sold them from a different place, and stock, than
his business. He claimed the GCA didn't require him to keep
records on his personal collection. The court disagreed. This
case is why the FOPA changed the personal collection record-keeping
requirements, and has a statement in the law that a dealer may have
a personal collection. Although some of these changes were
nullified by the perverse administrative rules made after the FOPA,
see the NRA v. Brady case for that. This case
is also mentioned
in the J Curtis Earl portion of the July 1979 Senate hearings; Earl
tells about how the agents sent to hassle and intimidate him
boasted about the other FFL dealers they had sent to prison, one
being Scherer. Charming bunch of guys, good to see they were going
after the criminals. Similar ATF behavior was seen in the
Gardner case.
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U.S. v. Schofer, 310 F.Supp. 1292 (E.D.N.Y. 1969)
In this case the trial court contradicting the logic of
US v Oba,
decides that dynamite and blasting caps and safety fuse are not a
destructive device, and cannot be "made" into one by the intent of the
possessor to use them for bad purposes or as a weapon. The court also
decides that despite its 1968 amendments, the NFA is still aimed at
criminals, and criminal weapons, and thus self incrimination is still a
good defense to non-compliance with the registration provisions. This
reasoning was rejected later by the Supreme Court, in 1971, and is not
good law.
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U.S. v. Schrum, 346 F.Supp 537 (E.D.Va. 1972)
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U.S. v. Shuler, - F.3d - (10th Cir. 1999)
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U.S. v. Schutzler, 309 F.Supp. 681 (S.D.Ohio 1969)
In this case the trial court rejects the argument that there is a self
incrimination problem under the post-68 NFA which would bar a conviction
for possessing a firearm made by him in violation of the NFA. The court
notes that the newly revised law prohibits the sharing of information on
any application with anyone, so complying with the law will not compel
him to reveal a violation of state law. Further, since the applicaiton
cannot be approved if it would place him in violation of law, the
defendant would not have been allowed to violate any law with his
application, as it would have been rejected.
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U.S. v. Scrivner, - F.3d - (9th Cir. 1999)
In this now withdrawn opinion, the 9th circuit decides that the
defendants 5th amendment right against self incrimination was violated
when an affidavit he filed in a civil forfeiture proceeding, claiming an
ownership interest in a quantity of goods which included an unregistered
silencer and machien gun, was introduced as evidence at his trial for
possessing the unregistered silencer and machine gun. The court said
that it was not constitutional to make him choose between claiming his
proeprty, which included lots of items lawful to own, and his right to
not incriminate himself. The court ordered a new trial, without his
affidavit from the forfetiure proceeding being admitted as evidence.
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U.S. v. Sedigh, 658 F.2d 1010 (5th Cir. 1981)
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U.S. v. Sepulveda, 102 F.3d 1313 (1st Cir. 1996)
In this case the defendant is convicted of possessing
a sawed off rifle that was not registered. The court
decided that finding the rifle in the ceiling, within arms
reach, at the defendants' crack house, was sufficient
for a conviction.
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U.S. v. Seslar, Case No. 95CR30002 (W.D.Ark.) docket listing
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U.S. v. Seven Misc. Firearms, 503 F. Supp. 565 (D.C. 1980)
This is a bizarre 1980 case. Dan Shea
likes to mention it in his MGN Forms column, I have seen it
mentioned there more than once. In 1978 ATF raided the NRA museum
in DC and seized 7 guns that they claimed were unregistered NFA
weapons. They took this court action to have them forfeited to the
government, that is why the case is only against the guns, and not
the NRA. Anyone claiming the property sought to be forfeited can
defend the case, and the NRA did. This case made a series of
fascinating holdings about what is an NFA weapon, that seem to have
been totally ignored by subsequent courts. This is only a district
court decision. The court holds that a) a cutaway Lee Enfield
trainer model, with a shoulder stock and short barrel is not a NFA
weapon. It is not a weapon at all, it is a training aid, not even
a title 1 firearm. The weapon was apparently registered as a
unserviceable SBR anyway, and ATF couldn't find a record of the
paperwork. As some of you may know ATF to this day takes the
position that a cut-a-way type trainer gun is a NFA gun, if the
real gun would be an NFA weapon (like the cut-a-way M-16A2 that
Birmingham Pistol Wholesale has had for sale for an eon). b) a gun
with a bore over 1/2" (two Gyrojet weapons) is not a DD if there is
no ammo available for it, at all, and if the guns are not capable
of being fired (missing critical parts, but with barrels over 1/2"
and intact receivers). At least as to availability of
ammo ATF doesn't care, eg a Japanese knee mortar device. And as to
missing parts they don't seem to care about that either, a M-79
receiver and barrel, and nothing else will likely bring a
prosecution unless it is registered.
c) 4 DEWATted machine guns, all made as display pieces (a G-3
donated by HK, a Colt AR-15 machine gun, a T-44, and a T-48) and
all donated to the NRA by the military or the maker are not machine
guns, even though they have intact receivers. All were missing
parts, and had welded up barrels. They should have been registered
at the Amnesty, and were not. The court decides they were never
designed to shoot more than one shot with a pull of the trigger,
they were designed and made, or re-made as display pieces, not
weapons, for the NRA museum. The court decides, reading the
definition of mg, that a naked receiver isn't a mg. Only an mg
receiver together with parts to have it fire as one is an mg. This
view of the definition of mg is totally rejected by ATF, and
ignored by other courts looking at it. Their G-3 doesn't even
have a serial number... To a large extent the result in this case
is due to the rather outrageous ATF conduct; raiding a museum for
illegal guns, where they have sat to educate the public, and are
obviously not weapons nor any threat to the public. However if
this case were brought today, I think it wouldn't come out this
way. The court talks about the socially neutral conduct at issue
here, collecting guns that sit there. No court today would agree
with that, guns are inherently evil, whether sitting in a museum or
in a collector's safe, or hanging out the window of some gang-
mobile. Interesting case, worth arguing as a lawyer. But pretty
irrelevant anymore. By the court's mg receiver logic virtually any
DEWAT machine gun, unless possessed with parts to make it live
would not be an NFA weapon. Look also for a mention of Tim Bixler,
now of SCRC, formerly of AWC, as someone who tried, during the
Amnesty to register a Gyrojet pistol of the sort at issue here.
ATF apparently told him it wasn't subject to registration, although
they also apparently changed their mind.
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U.S. v. Shafer, 445 F.2d 579 (7th Cir. 1971)
In this case the 7th circuit upholds Shafer's conviction
for possessing and transferring unregistered hand grenades,
which were of course really just cases, fuses and gun powder,
not real grenades. The court decides that they need never
have been assembled, the component parts, even for lame grenades,
is enough. See the Ballew case for similar
logic. The court
also upholds the conviction even though the government destroyed
all the "grenades", some before he was indicted, some after.
The court finds this problematic, but enough to overturn the
conviction. Shafer was also convicted of selling a gun to
someone who supposedly was a felon, and a non-resident of his
state (IL). The court upholds this even though there was no
evidence of the guy being a felon put on by the government, only
the guy's testimony. Since the crime is selling to a felon, and
to a non-resident, not selling to someone who claims to be those
things, that was sort of odd, but typical of the 7th circuit.
Note also that the case was brought soon after the revised GCA
was enacted; apparently ATF had a list of folks they wanted to
get, and began the entrapment operations soon after the law was
enacted.
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U.S. v. Shephard, 439 F.2d 1392 (1st Cir. 1971)
In this case the court upholds the defendant's conviction for possessing
a sawed off shotgun that wasn't registered. The court decides that the
fact that the gun was found in his car by the repair guy he asked to fix
it after it broke down, and that there were shells for the gun in the
console was sufficient to let the jury decide that the gun was his, and
had not been left in the car by someone else. The court also rejects
his suggestion that if the gun was being held for someone else by him
then he did not "possess it", citing to
US v. Palmer.
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U.S. v. Shepardson, - F.3d - (2nd Cir. 1999)
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U.S. v. Simmons, 83 F.3d 686 (4th Cir. 1996)
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U.S. v. Smith, 341 F.Supp. 687 (N.D.Ga. 1972)
In this case the Court decides that the NFA was validly enacted by
Congress pursuant to its Constitutional taxing power, and therefore
whether it is a valid exercise of the power to regulate interstate
commerce is not an issue the Court will reach.
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U.S. v. Smith, 477 F.2d 399 (8th Cir. 1973)
No relation to the other smith cases...
In this case a guy is charged with possessing an unregistered
DEWAT Thompson SMG. According to the case the gun was registered
at one time, and was probably removed from the scope of the NFA
by being a DEWAT, only to be put back in after 1968, and this gun
was not re-registered, by its current owner, at that time. In any
case the court has to decide whether the gun is able to be "readily
restored" to shoot. Even though the ATF rent-a-expert says it would
take 8 hours in a machine shop, the court decides that is enough
for "readily restorable".
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U.S. v. Smith, 957 F.2d 835 (11th Cir. 1992)
This is the court of appeals decision the Supremes upheld in
Smith v. US. A guy traded his converted MAC-10
full auto for dope, or tried and was arrested. Is a trade for dope a "use"
of a firearm in a drug related crime? The court says yes.
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U.S. v. Smith, 101 F.3d 202 (1st Cir. 1996)
In this case the 1st circuit upholds a conviction for possessing
ammunition as a convicted felon, and the court discusses the proof
offered at trial to show that, and to show possession of a firearm as
well, even though the trial court dismissed that count after forcing the
government to pick between possession of a ammunition and possession of
a firearm.
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U.S. v. Smith, 964 F.Supp. 286 (N.D.Iowa 1997)
In this case the trial court interprets the ban on possession of
guns by those convicted of a misdemeanor crime of domestic violence
to mean that the underlying crime need not have had an element that
the crime be directed against a domestic type person, only that
that have in fact been the case. Likewise, the court declined to
require that the domestic violence conviction have had as an element
the use or threatened use of force, just that the offense have in
fact had that. The court noted that Congress was trying to graft
a gun ownership ban for a crime that most states do not have
(domestic violence). Thus, the court said that the ban
applies when someone is convicted
of any crime, which in fact was a use of force or attempted force,
against one of the domestic type persons listed, even though the
crime itself might have been a generic assault, or other generic
crime.
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U.S. v. Smith, 97-4335 (4th Cir. 1997)
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United States v. Smith, 171 F.3d 617 (8th Cir. 1999)
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U.S. v. Soskin, 100 F.3d 1377 (7th Cir. 1996)
In this case the court decides that the defendant, the manager
of a gun store, was properly convicted of possessing a stolen
firearm, and of possessing a firearm with a defaced serial number.
The defendant took in a pistol, and asked a police officer friend to
see if it was stolen. While the officer told him it was stolen, the
defendant kept it, rented it out, and somehow the serial number was changed
from when the officer saw it, to when ATF agents came in and rented it
as part of the investigation. The defendant claimed he had reported
the gun to law enforcement, and thus was free to keep it until they
came for it. The court disagreed that reporting the gun was a defense,
and was a little skeptical that he had "reported" it either, by just
asking his police officer friend to check on the gun. The court also
quotes from a regulation requiring owners of NFA guns to report
the theft to law enforcement, which the defendant cited as his defense,
without ever noting that the regulation only applies to NFA guns, which
this gun was not. It speaks of "firearms", but being part of
27 CFR section 179, firearm there only means NFA guns. I guess asking
the defendant, the defense counsel, or the court, to read the
regulations they are applying, is asking too much.
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U.S. v. Spinner, 152 F.3d 950 (D.C.Cir. 1998)
In this case, among other things, the DC Court of Appeals holds that the
government failed to prove that a rifle had a pistol grip protruding
beneath the action, and was thus a semiautomatic assault weapon, and
reversed the conviction for possessing one. The court also holds that
the government has to prove the defendant knew that the firearm was a
semiautoamtic assault weapon, or possessed the features, in order to get
a conviction for violating 18 USC 922(v).
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U.S. v. Spruill, 61 F.Supp.2d 587 (W.D.Tx. 1999)
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U.S. v. Staples, 971 F.2d 608 (10th Cir. 1992)
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U.S. v. Starkes, 32 F.3d 100 (4th Cir. 1994)
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U.S. v. Starr, 945 F.Supp. 257 (M.D.Ga. 1996)
In this first reported decision involving a prosecution
under the ban on semiautomatic assault weapons I know of,
the court decides that the law is not unconstitutionally
vague as applied to a rifle which is not identified, but
sure sounds like a Maadi semi-auto
clone of the AK, where the bridge connecting the pistol
grip to the stock at the bottom of the pistol grip was
removed, and welded on nut covering the muzzle threads was
removed, in that the court decided anyone could tell the
gun had a pistol grip protruding conspicuously below the
gun, and that it had a threaded muzzle. The court rejects
the argument that the gun came with a threaded muzzle, saying
the welded n nut was sufficient to make the threads not able to
accomodate a flash suppressor, as they could once the nut was
removed.
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U.S. v. Stella, 448 F.2d 522 (9th Cir. 1971)
In this case the 9th circuit rejects an argument that the registration
provisions of the NFA compel persons to admit they are violating the Gun
Control Act, by admitting to being a dealer without being licensed. The
court also rejects the argument that a charge for possessing an
unregistered weapon requires the government show the weapon was
transferred to the possessor. The court notes that possessing a weapon
trasnferred in violation of the Act is a separate count, and 5861(d),
the crime of mere possessing does not distinguish how the defendant came
to have the firearm.
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U.S. v. Stevens, 286 F.Supp. 532 (D.Minn. 1968)
In this case the court decides that under the pre-68 NFA the charge of
possessing a firearm made in violation of the NFA (section 5821) is void
under the Haynes rationale, since the maker of the firearm, whoever that
is, is required to incriminate himself in order to avoid prosecution in
the same way the possessor of a firearm is required to incriminate
himself under section 5841. Thus the offense of possessing a firearm
made in violation of the NFA is also void, since it refers to a
violation, making a firearm in violation of the NFA, which is itself
void. The court rejects the decision in
U.S. v. Taylor as being wrong.
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U.S. v. Story, 463 F.2d 326 (8th Cir. 1972)
Story was caught with a sawed off shotgun on his front seat after
being pulled over for having expired license plates on his car.
The court upholds the seizure of the shotgun, saying that such
things are per-se contraband, and should a check prove it is
registered it can be returned after its owner has been arrested
and his shotgun dragged down the street from the back of a police
car. After all, the things have no lawful purpose in civilian
hands anyway. What a happy state to live in.
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U.S. v. Stout, 667 F.2d 1347 (11th Cir. 1982)
This is a case from 1980, where two guys made a bunch
of unmarked and unregistered silencers and machine guns for two
undercover ATF persons, and got caught. The main interesting thing
from this case is the similar ruling as
US v. Metzger; the feds
cannot prove non-payment of the making or transfer taxes by proving
the defendant has not registered the gun, by a search of the
Registry. Also the defendants went to Atlanta and bought parts to
convert a semi-auto "MAC-10" to full auto; I suspect this case was
an impetus for the re-classification of the open bolt MACs.
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U.S. v. Streich, 759 F.2d 579 (7th Cir. 1985)
In this case the court upholds the defendant's conviction for
threatening IRS agents who came to seize his property for a tax lien,
and for possessing the full auto AR-15 he used to drive the IRS agents
off. The court finds that the evidence was sufficient that the gun was
full auto, even though it was an AR-15 assembled with some M16 parts,
but no auto sear, and also that the evidence was sufficient to show he
knew the gun was a full auto - because he belonged to a gun club and
said he knew about converting AR's to full auto.
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U.S. v. Stump, No. 96-4279 (4th Cir. January 21, 1997)
In this unpublished 4th circuit case, the court decides
that the trial court may not depart downward from
the recommended sentence range for possessing unregistered
silencers because the silencers were possessed only for lawful
purposes (target shooting). The court says that doesn't matter.
The court also says that the trial court may not depart downward
for possession for a short period of time - that length of
time of possession does not matter. As the court decided this
case was not to be published, its value as precedent is basically
limited to matters having to do with this specific case (ie with
Stump himself), however that does not lessen the value of the general
statement of the law, this position on the law and sentencing guidelines
is likely to be the same as that taken by other courts.
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U.S. v. Sullivan, 919 F.2d 1403 (10th Cir. 1991)
In this case the defendants are charged with a multitude of drug crimes,
all of which apparently stem from an entrapment scheme of Oklahoma law
enforcement. The court reverses some of the convictions, and briefly
discusses a charge of possessing a machine gun, an AR-15 rifle with a
drop-in auto sear. The court notes that the government contended the
rifle would fire full auto with or without the sear, and therefore the
firearm was undoubtedly a machine gun.
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U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971)
A case on, among other things, how the 2nd
amendment does not mean the government may not ban felons from
possessing guns. The holding of this case, as to the meaning of
sec. 1202(a), was overturned in US v. Bass,
by the Supreme court.
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U.S. v. Syverson, 90 F.3d 227 (7th Cir. 1996)
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U.S. v. Szymkowiak, 727 F.2d 95 (6th Cir 1984)
In this case the 6th circuit decides that an NFA
firearm seized without a warrant must be suppressed because the
contraband nature of the weapon was not apparent to the officers when
seized (the police claimed it was seized under the "plain view"
exception to the 4th amendment). The weapon in question was a
Colt AR-15 rifle, and the court said that the rifle was not suspcicious
or contraband in itself, and only a later internal inspection of
the rifle revealed the modification to full auto.
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U.S. v. Taylor, 286 F.Supp. 683 (E.D.Wis. 1968)
In this brief case the court agrees with several others in deciding
that a charge of possessing an NFA weapon made in violation of the
NFA is not subject to the same self incrimination problems as a charge
of failing to register an NFA weapon (under the pre-68 NFA) because
it does not impose any requirements, it just is a flat out prohibition.
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U.S. v. Taylor, 154 F.3d 675 (7th Cir. 1998)
In this case the court decides that the evidence of firearms and
ammunition in the house where the defendant stayed is sufficient to show
that he possessed them, which as a felon he could not legally do.
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U.S. v. Ten Miscellaneous Firearms, 622 F.Supp. 759 (D.Neb.1985)
This is a forfeiture action, for the US to
get some unregistered NFA weapons. Apparently
the criminal prosecution was tossed out for
the use of unlawful evidence collection techniques.
The court decides that the failure of the criminal
prosecution does not bar a forfeiture action. It
also decides that unregistered NFA firearms are
per-se contraband, and there is no scenario under which
the Government will lose an action to forfeit
unregistered NFA weapons, as their possession is not
legal. It is not like forfeiture actions against objects
which are legal, like cars, where it is the things connection
to a crime which must be shown by the Government in order
to prevail.
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U.S. v. Tepper, 793 F.Supp 270 (D.Colo. 1992)
In this case the 10th circuit says that Dalton does
not apply to a case of possessing an unregistered sawed off
shotgun, as those are still theoretically registerable, even if
this one wasn't. That they cannot be registered because they
already exist was not persuasive (that is the feds won't accept
registration of an existing gun). This same thing is why the
court in Jones, and in
Omara2 say that 922(o) does not repeal the
NFA. The law is against possession, not untaxed or unregistered
guns, they say, and compliance is achieved by not possessing the
guns. Whether the man will take registration or tax doesn't matter
- whether it is because it is an existing unregistered gun, or
because registration is barred by a second law. The practical
effect is the same. I sort of have to agree; if registration and
tax is literally impossible, whether because of 922(o) or because
of the NFA itself, how can you be prosecuted for not paying or
registering it? The problem with Omara2 and
Jones is that the
crime is NOT possession, it is possessing an UNREGISTERED or
UNTAXED gun, not mere possession. A prosecution under 922(o)
itself is naked possession, and Dalton says that is OK.
But I think this case should have come out the opposite way.
Dalton
requires that if the man refuses to let you become legal, then the
law loses its constitutional basis (collection of tax) and is void.
The practical effect of this debate would be whether the man can
punish folks for possessing unregistered guns if they won't let you
register them; in the case of existing unregistered guns, like the
Maxim can in grandma's attic. Being able to make such items legal
would be very nice. Would have been worth an appeal to the 10th
circuit.
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U.S. v. Thirteen Machine Guns, 689 F.2d 861 (9th Cir. 1982)
In this case the 9th circuit decides that a 21 month delay
by ATF between seizing some firearms they claimed were used
in a crime, and ATF moving to forfeit them violated due process,
and the court directed the guns be returned. As noted in the
follow up case
to this one, in 1984 the 9th circuit reversed
this case, based on a supreme court case which called for
considering more factors than just the delay and who was
responsible, in deciding if such a delay violated the constitution.
As to guns forfeited under the Gun Control Act, Congress made
this discussion moot by, in 1986, passing a law with deadlines
for ATF to act on a forfeiture, after a seizure. ATF contends,
and at least one court (in the
US v. One DLO Machine Gun) agrees,
that these deadlines do not apply to forfeitures under the NFA
provisions only. So the test followed in the second Thirteen
machine guns case would still apply to forfeitures under the
NFA.
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U.S. v. Thirteen Machine Guns, 726 F.2d 535 (9th Cir. 1984)
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U.S. v. Thomas, 531 F.2d 419 (9th Cir. 1976)
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U.S. v. Thomas, 12 F.3d 1350 (5th Cir 1994)
This case is primarily concerned with some guys running a drug
ring in Texas, where everyone had a number, like in the Prisoner.
I dunno who number 1 was, but numbers 6 and 7 were defendants....
Anyway, one was given the sentencing enhancement for having a
machine gun. He argued it wasn't a machine gun, it apparently was
an AR the feds induced to double tap. The court says that if the
testimony was credible, and indicated it was a machine gun, then
that was sufficient. His lawyer admitting it was a machine gun,
according to the footnote, probably didn't help things either.
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U.S. v. Thomas, 15 F.3d 381 (5th Cir. 1994)
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U.S. v. Thomas, 111 F.3d 426 (6th Cir. 1997)
In this case the court upholds an enhancement of a sentence
based on the defendnat's possession of a destructive device
at the time he committed the other crimes he was convicted
of. The destructive device was characterized as a bomb. It
was a 12 gauge shotgun shell, into which was loaded a dart
shaped projectile which had an explosive mixture inside it, and
a primer at the tip. An ATF expert testified it would explode
if shot at something, or dropped on the ground, or thrown at
a hard surface. Apparently without regard to the amount of
explosive material (because it wasn't called a missile, apparently)
it was called a DD. The defendants claim that they were for
blowing up tree stumps was not considered credible.
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U.S. v. Thompson, 202 F.Supp 503 (N.D.Cal. 1962)
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U.S. v. Thompson, 420 F.2d 536 (3rd Cir. 1970)
This case concerns a guy caught with, what else, a sawed off
shotgun. The court follows a number of other courts and holds that
the proviison of the pre-68 NFA forbidding possession of a
NFA weapon that was made illegally does not have the same 5th
amendment self incrimination problem the Supremes found in the
section dealing with registration. It also decides that the use
of a report from the custodian of the NFA Registry, as opposed to
live testimony, does not violate the 6th amendment right to confront
the witnesses against oneself. The court also upholds the search
of the defendant's car, and the seizure of the gun, without a
warrant.
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U.S. v. Thompson, 82 F.3d 849 (9th Cir. 1996)
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U.S. v. Thoresen, 428 F.2d 654 (9th Cir. 1970)
This case concerns a prosecution under the now repealed Federal
Firearms Act, replaced in 1968 by the GCA. However it does have
one interesting discussion in it on the standard of constitutional
review to be applied to the FFA's restriction on interstate transport
of firearms by convicted felons. The court decides that this type
of regulation does not affect an important right, like the right
of retarded persons to reproduce, and thus any rational basis for
the law will make it constitutional. At least as reviewed under the
5th Amendment. Compare this to the
Gilbert Equipment Co. case, where
the magistrate holds that there is no second amendment right to import
firearms.
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U.S. v. Tomlinson, 67 F.3d 508 (4th Cir 1995)
In this case ATF has successfully argued that a pistol
gripped 12 gauge shotgun (a Mossberg Cruiser model, I believe)
is a "weapon of mass death and destruction" under North
Carolina law. As such it cannot be possessed by a felon, while
a felon can possess ordinary shotguns and rifles under NC law.
Interestingly, for purposes of a shotgun, a weapon of mass death
and destruction is the same as a "destructive device" under federal
law, which raises the question of why all pistol gripped shotguns
have not been reclassified by ATF as destructive devices, as they
did with one semi-auto shotgun, and two revolving cylinder shotguns.
In any case, the court decides that the
Staples case requires that
the government prove the defendant knew the shotgun had the
characteristics that made it a weapon of mass death and destruction,
and thus made it illegal for him to possess it.
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U.S. v. Toner, 728 F.2d 115 (2nd Cir. 1984)
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U.S. v. Tot, 131 F.2d 261 (3rd Cir 1942)
This is a case among many deciding among other things
that the second amendment means that states can have a militia, not
that anyone can possess a firearm. It is cited quite often to
that effect; the main holding of the case was overturned by the
Supreme Court, that in a prosecution under the old Federal Firearms
Act the jury can presume the gun traveled in interstate commerce to
get to the felon who possessed it, without any evidence to that
end. The court said yes, the Supremes disagreed.
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U.S. v. Tous, 461 F.2d 656 (9th Cir. 1972)
In this brief case the 9th circuit rejects a challenge to
a conviction for possessing an unregistered machine gun.
The court notes that the NFA is an assertion of Congress'
taxing power, not its commerce power, so the gun need
not have been shown to have traveled in commerce, and further
the fact that the defendant missed the 1968 Amnesty is
not a defense.
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U.S. v. Truitt, 521 F.2d 1174 (6th Cir. 1975)
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U.S. v. One Assortment of 12 Rifles and 21 Handguns, 313 F.Supp. 641
(N.D.Fla. 1970)
In this case the court decides that even though the defendant was
acquitted of dealing in firearms w/o a FFL, his firearms can still be
forfeited to the government, as they were involved in sales of firearms
w/o an FFL, by the defendant's own testimony at trial. As to the
defendants argument that hhe was not in the business of selling
firearms, but was disposing of his collection, the court rejects that
contention, deciding instead that any sale for profit or to liquidate a
firearm requires a FFL. This sort of case was why the NRA and others
pressured ATF to define "engaged in the business" as ATF made many
prosecutions based on people selling their admittedly large personal
collections. In the end, since ATF refused to define the term, as they
enjoyed the liberty it gave them in making prosecutions on the one hand,
and also in refusing to issue FFLs on the other (you don't want to be in
the business if you don't plan to sell a lot of guns...) Congress
defined it as part of the 1986 Firearm Owners Protection Act, and ended
a lot of abuses such as shown by this case.
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U.S. v. Twelve Misc. Firearms, 816 F.Supp. 1316 (C.D.Ill 1993)
In this case the court refuses to throw out the government's
suit to forfeit the AUG-SA firearms at issue in
US v. Nevius and
US v. Vollmer, based on the argument that
the suit was filed to late.
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U.S. v. Twelve Firearms, 16 F.Supp.2d 738 (S.D.Tex. 1998)
In this case the court upholds the forfeiture of some firearms which a
dealer did not have in his bound book records. The owner of the
firearms argued the action was brought too late, more than 120 days
after seizure, however the court said that just starting an
administrative proceeding within that time was sufficient, the
government did not need to start a judicial forfeiture in that tiem as
well. And the court also said that the government proved a wilful
violation of the recordkeeping requirement of the GCA to justify
forfeiture. It appeared the owner of the firearms was handicapped by
doing the case himself, and not having a lawyer help him....
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U.S. v. Valdez, 146 F.3d 547 (8th Cir. 1998)
In this case the court of appeals upholds the trial court decision (see
US v. Johnson) that, among other things,
a pistol gripped short shotgun
made from a shoulder fired shotgun is a short barreled shotgun, and not
a pistol, even though it was meant to be fired from the hand as
re-made. Since it was originally designed to be shoulder fired, it is a
short barreled shotgun
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U.S. v. Valentich, 737 F.2d 880 (10th Cir. 1984)
In this case the 10th circuit agrees with the trial judge that acquitted
the defendant on charges of possessing a silencer, after the jury
convicted him, because the government did not put on enough evidence of
possession. The court decides that the fact that he was in the same
room as the silencer, and probably held it, was not enough to show that
he had the power to exercise control over the silencer, and further the
government failed to show the seized silencer was even the same one the
defendant had touched.
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U.S. v. Valentin, No. 97-1772 (1st Cir. December 12, 1997)
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U.S. v. Vasquez, 82 F.3d 574 (2nd Cir. 1996)
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U.S. v. Verna, 113 F.3d 499 (4th Cir. 1997)
In this case the 4th circuit court of appeals upholds the conviction
of the defendant for being a felon in possession of a firearm, and
for possessing an unregistered NFA firearm. The firearm in both
cases was a bomb he put in his ex-wife's car, which failed to
go off. The court decided that as to the felon in possession charge,
the government proved that enough of the components of the bomb
were made outside his state as to justify a decision that the bomb
was acquired in interstate commerce. The explosive, some of the
shrapnel, and at least one of the igniters were all from out of state.
The court also decided that even though the bomb had a design flaw that
prevented it from going off, it could still be a destructive device,
and thus subject to the NFA.
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U.S. v. Virciglio, 441 F.2d 1295 (5th Cir. 1971)
This case concerns a guy who was solicited by ATF to sell them
guns, and a machien gun, right after the changes to the GCA in
1968. They take advantage of the lack of a definition of engaged
in the business to snag him for selling to them, and others, a few
guns. They also dup him into selling them an unregistered Thompson
SMG. The court rejects an entrapment defense, saying he responded
positively to their solicitation. They also decide that even though
he never touched the SMG he can still be prosecuted and convicted for
possession, on a "constructive" possession theory, basically for arranging
the sale.
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U.S. v. Visnich, 65 F.Supp.2d 689 (N.D.Ohio 1999)
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U.S. v. Voegele, 346 F.Supp. 7 (E.D.Mich 1972)
In this case a gun dealer discovers that law enforcement is not your
friend, but that when they ask questions, they are trying to get enough
evidence to get you incarcerated. He blabbed about helping a guy make a
sawed off shotgun, when asked, and as a result found himself being
prosecuted. The trial judge, in this opinion, rejects his arguments as
to the invalidity of the search of his premises, and the
non-admissibility of his confession to making the sawed off shotgun for
another man, who got caught with it, and fingered Voegele.
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U.S. v. Vollmer, 1 F.3d 1511 (7th Cir. 1993)
This is the opinion of the 7th circuit court of
appeals in the government's case against Vollmer for supposedly
conspiring with an IL National Guardsman to buy Steyr AUG-SA's from
GSI, under the LEO only sales deal, for re-sale to Vollmer. Notice
how they try and get the Guardsman to entrap Vollmer after they
bust him. Nice, huh? Someone told me once they didn't think
there was a single big NFA dealer ATF hadn't at least tried to get
busted on NFA violations. And compare this to the
Lauchli(4) case,
(the case went up and down through the courts
several times) where the court decides being a SOT under the NFA is
not being part of primarily a criminally suspect class, and thus
bringing into play certain 5th amendment protections. I would
disagree, viewing all the NFA prosecutions overall. For the most
part they go after otherwise law abiding persons. But enough of
that. In this opinion Vollmer (the company, Robert Vollmer was
also indicted as an individual, but was acquitted by the jury) gets
some of the charges knocked out, but the court upholds, generally,
the BS scheme ATF imposed on GSI as to the AUG's. However because
the judge didn't poll the jury (ask each one individually if the
verdict as read was their decision) after Vollmer's lawyers asked,
the court throws out the guilty verdicts, and orders a retrial. I
don't know if Vollmer was actually retried, or if the US Attorney
decided to get a life and go after some criminals. It seems to me
Vollmer hired very effective lawyers in this one.
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U.S. v. Von Eichelberger, 252 F.2d 184 (9th Cir. 1958)
In this case Von Eichelberger, was convicted of transferring
unregistered NFA guns, as well as possessing same, all under the
pre-68 NFA, although the result would be the same under the current
law. He gave them to his co-defendant, to sell. His main argument
was that a "conditional sales contract" was not within
the definitions of transfer under the law. The court thought that
was clever, but thought that any transfer of physical possession was
what the statute meant to cover by transfer. Whether legal title
passed didn't count. The court also decided that while possession
might have started more than 6 years before the indictment, that did
not mean that the statute of limitations on prosecution had lapsed,
as long as he possessed the guns he was in violation of the NFA, it
was a continuing offense.
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Plaintiffs brief in US v Walsh
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Government brief in US v Walsh
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Reply Brief in US v. Walsh case
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U.S. v. Walsh, 791 F.2d 811 (10th Cir. 1986)
This is a odd one, Don Walsh was a class 2 who made suppressors, Al
Paulson, the suppressor guru for MGN, really likes his stuff. He
was the Interrand Corp., out of Washington DC. Funny place for a
gun company. Anyway he was bringing some cans to the SOF show (I
guess, a show in Las Vegas) and the cans and a gun were lost in the
luggage and showed up in a different city. As he had not put his
name on the outside of the case the airline opened it, saw the gun
and cans and called ATF. Unfortunately Walsh had neglected to
mark the cans with a serial number, and had filed post dated form
2's on them. He apparently planned to mark them in LV, and
brought an engraving tool. He was convicted of a felony, making
unserialized NFA weapons. The court here upheld that, saying the
things needed to be marked when they were made, there was no grace
period. Bummer.
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U.S. v. Warin, CR 74-90 (N.D.Ohio January 24, 1975)
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U.S. v. Warin, CR 74-90, transcript of sentencing (N.D.Ohio
March 28, 1975)
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U.S. v. Warin, 530 F.2d 103 (6th Cir. 1976)
This is a fairly notorious case, as these go. This is
the main, recent case where a federal appeals court held that the
Miller case was a freak aberration, and could not
possibly stand
for the idea that there is any individual right to own any gun, let
alone the machine gun at issue in the case. Never mind that if
their rationale was correct the Supreme Court opinion in
Miller
would have said just that, rather than what it did say. By even
entertaining the idea that ownership of a sawed off shotgun (in
Miller) was protected by the 2nd amendment the
court agreed it was an individual right. The argument advanced by this
court just makes no sense.
My favorite part of this case is where the court
says in one paragraph that in any case the NFA doesn't violate the
Second Amendment because it doesn't regulate the "keeping or
bearing" of firearms, the only things mentioned in the
Constitution. Then in the very next paragraph, they say Warin may
not challenge the portions of the NFA that regulate "making", as he
was only charged with a violation of the Act that regulated
possession. HELLO, isn't possession a fairly good synonym for
"keeping"? The judges who wrote this should have been ashamed of
themselves. In the year of the 200th anniversary of the
Declaration of Independence to boot.
In any case, when the gun-grabbers talk about the idea that
the Second Amendment only protects the rights of states to have
arms without federal governmental interference, there are cases
that say just that, Warin is a leading example.
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U.S. v. Warner, 5 F.3d 1378 (10th Cir. 1993)
In this case the court upholds a conviction for
possessing a machine gun in violation of 922(o).
Warner claimed that because Utah law permitted him to own
a machine gun, he was within the "authorized by a state
government" exception to 922(o). The court rejected that
idea, and said you had to be a government employee, on
official business, to be able to be included in the clause.
The court also reversed the downward sentencing departure by
the trial judge, indicating that even if the trial court
thought his possession of the machine gun was for hobby
or sport purposes, that could not be the basis for a dowanward
departure for possessing a machine gun, only for regular rifles,
shotguns and handguns. The court also disagreed with the trial
court's thinking that the possession was for non-offensive reasons,
indicating he was caught with it in his car, after a fight
at the roadside over bad driving, and during which he had
threatened to shoot the other driver he was fighting with.
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U.S. v. Was, 684 F. Supp. 350 (D. Conn. 1988)
This is the opinion by a district court denying a motion
to dismiss charges of violating the NFA by transferring some AR-15
drop in auto sears. Pretty standard stuff, but it pointed
something out to me I hadn't remembered, and explains a lot of the
Staples case. The AR auto sears
were declared to be conversion
devices, even though they also needed all M-16 parts in the gun,
because the ATF claimed to have identified SOME AR's that were
assembled with M-16 parts. Presumably if all AR's had Colt SP1
type parts then the sear would not have been a conversion device.
Read the ATF Ruling. But wait, you say to yourself, if the AR has
all M-16 parts doesn't ATF consider it to be an mg anyway, even w/o
the drop-in sear? How can the drop-in sear convert something that
is already an MG? Ah ha, this is where we get an explanation of
why, in the Staples case
(read the briefs for the best description
of this BS) ATF REFUSES to issue a ruling that an AR with M-16
internals is an MG. They just warn that SOME may fire more than
one shot, due to hammer follow down. They refuse to issue such a
decision, even though they obviously act on the belief that all
AR's with M-16 internals are mg's, because doing so would totally
undercut the rationale for finding AR drop-in auto sears are mg's,
because they claim they can convert SEMI-AUTO AR's that already
(from the maker) have M-16 parts installed. This isn't in the
case, it just brought the issue to my attention.
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U.S. v. Was, 869 F.2d 34 (2nd Cir. 1989)
In this extremely brief opinion, the court of appeals affirms the
conviction of the Was brothers for transferring drop in auto sears,
adopting the district court decision as to whether the sears were in
fact machine guns under the NFA.
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U.S. v. Webb, 533 F.2d 391 (8th Cir. 1976)
In this case the court upholds Webb's conviction for possessing an
unregistered short shotgun, found in a search of the car he was in,
after he shot up a jukebox, and the car was double parked on the street.
The case is mostly included for the footnote in which the court notes
that unservicable NFA firearms are not subject to the registration
or tax provisions of the Act, in the context of deciding that the
government did not have to prove the gun worked to get a conviction,
if he wished to prove it didn't work, he could do so, but it wasn't
an element of the offense.
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U.S. v. Webb, 98 F.3d 585 (10th Cir. 1996)
This case is mostly notable for the footnote describing
the silencers this guy was convicted of possessing. The
court declines to review the conviction, as Webb did not do
a direct appeal, but it does note the silencers were two
toilet paper rolls, filled with the stuffing from a toy
animal. One was attached to the muzzle of a .22 rifle the
defendant had, when he was arrested. Really.
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U.S. v. Webb, 975 F.Supp. 1280 (D.Kansas 1997)
In this case the trial court reverses Webb's conviction for possessing
two unregistered and unserialized silencers (toilet paper tubes filled
with stuffing from stuffed animals) as the jury instructions did not
require the jury to find he knew they were silencers, as subsequently
required by the Supreme Court's decision in
Staples. One wonders why
this case was prosecuted at all, let alone appealed to the 10th circuit
twice (one of which is on this page).
Nonetheless, the Court set a date
for a new trial on those counts, to give the government a chance to show
the defendant knew the paper tubes were silencers, and thus were
required to be registered, and marked with serial numbers.
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U.S. v. Whalen, 337 F. Supp. 1012 (S.D.N.Y. 1972)
This is a sad one. It happened soon after the 1968
Amnesty, (1970) and after the change to require DEWAT's be
registered. Whalen was a cop from Westchester County, NY who had
a bunch of mg's (9) acquired while he was a cop. Even though they
were live while he was a cop they were apparently not registered.
When he left the force he had them welded up, and only one was ever
registered as a DEWAT. Then he put an ad in the paper to sell his
war memorabilia collection, including the mg's. Needless to say,
the folks who showed up with cash were ATF agents. He got busted
for 8 counts of unregistered mg's, and 9 counts of transfer w/o the
tax (ATF didn't like the welding job), or an application. The
issue here was, were DEWAT's now subject to registration, and the
NFA? The court said yes. I don't know what happened to Whalen,
he had some defenses to raise at trial as well (like the
sufficiency of the DEWATting (as to the tax), and whether he had
actually tried to transfer the guns, ATF may have arrested him too
early in the negotiations...) The court goes over the ATT Rulings
that created the DEWAT program, and the legal distinction between
a DEWAT and an unserviceable gun, which was erased by the 1968
changes to the NFA. The case also notes ATF retained all the
initial registrations of guns that were re-made as DEWATs and
removed from the need to have a transfer application after that.
A gun was supposed to be registered, then if it was steel welded in
front of an ATT inspector, the gun need not be transferred in
compliance with the NFA (ie sold by mail w/o a transfer, or tax).
According to the 1980 Senate hearings into the ATF, the DEWAT
records were destroyed, without any legal justification, at some
point before 1975. This case cites the three Revenue Rulings that
created the DEWAT program, and which are on the server as well.
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U.S. v. White, 368 F.Supp 470 (N.D.Ind. 1973)
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U.S. v. Wickstrom, 893 F.2d 30 (3d Cir. 1989)
In this case the court decides that a silencer is a "firearm"
under the Sentencing Guidelines, sufficient to enhance a setence
for using a firearm, even though the Guidelines define a firearm
as something that expels a bullet. The court magically sucks in
the definition of firearm from the Gun Control Act (which does
include a silencer as a firearm) into the Guidelines.
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U.S. v. Wiggins, 50 F.Supp.2d 512 (E.D.Va. 1999)
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U.S. v. Wilbur, 545 F.2d 764 (1st Cir. 1976)
In this case the court upholds the seizure of the defendants FFL records
during an administrative search, and upholds their use against him in a
prosecution for selling guns in violation of the GCA. The ATF used the
warrantless administrative search to gather evidence after the defendant
was indicted, but the court decided they didn't have to get a warrant,
and could use the warrantless inspection granted by the GCA to gather
evidence against a dealer suspected of criminal activity.
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U.S. v. Wilks, 58 F.3d 1518 (10th Cir. 1995)
In this case the 10th circuit reviews the
constitutionality of 922(o), the mg making ban, after the Supremes
ruling in Lopez, and upholds it, under the same
sort of attack
that it was voided under by the district court in
Bownds. In this
case the court decides that unlike in Lopez
the Congress is
regulating commerce with sec. 922(o), as it regulates an article of
commerce, and intrastate regulation of such an article, in order to
control its interstate movement, is acceptable. The court does
not find a flat out ban on guns to be a radical departure in
federal gun control, and claims it is just an extension of the
ideas and methods of the Gun Control Act of 1968. A very very sad
and disappointing case, in my opinion. However note the court's
sort of hopeful footnote as to the 2nd amendment. Someday,
maybe... The court approves of the 4th circuit case also finding
922(o) is an acceptable exercise of the commerce power, and notes
in a footnote that the 9th circuit case that also reached that
conclusion is based on reasoning rejected in the
Lopez case, and in
their opinion is not good law anymore.
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U.S. v. Williams, 427 F.2d 1031 (9th Cir. 1970)
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U.S. v. Williams, 872 F.2d 773 (6th Cir. 1989)
This is a 1986 companion case to US v. Anderson,
as a predecessor case to
US v. Staples. Williams was a FFL who
sold a bunch of Clayco imported Chinese semi-auto AK's to friends,
still in the wrap. Someone came to him looking for one, after he
was sold out. He asked one of his customers, who had bought a
bunch, if he wanted to sell one. It turned out, after that gun was
sold by the buyer to an ATF informant, that the gun was really an
mg. Williams had never removed the plastic wrap, or grease. The
court had to decide if he could be charged with an NFA transfer
violation if he didn't know the gun was a machine gun, and decided
no. He really thought it was a semi-auto, and definitely had
reason to think so. The case is unclear if the gun was sold by
Clayco as an mg (ie it came in as one), or if it was converted at
some point, and Williams just basically brokered the sale of an
illegal conversion. The case notes it was not detectable from the
outside as an mg; I would think a real Chinese AK mistakenly
imported as a semi would be so detectable from the outside. Anyone
know the story of these Clayco guns at issue?
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U.S. v. Williams, 986 F.Supp. 1445 (D.Kan. 1997)
In this brief decision the trial judge rejects a claim that a case
against the defendant for receiving a firearm while under indictment for
a crime punishable by imprisonment for more than one year should be
thrown out because the defendant was not indicted, but was charged by
information. An indictment is done by a grand jury, while an
information is done by the district attorney himself, without a grand
jury. While there is a constitutional right to grand jury indictment
for felonies in federal court, the same is not true in most states,
including, apparently, Kansas. The court said that it was just
semantics, and that they were the same for purposes of the law, even if
one was listed and one was not listed in the law.
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U.S. v. Wilson, 440 F.2d 1068 (6th Cir 1971)
This very brief case concerns a guy who was caught selling a sawed off
shotgun. In it the court, in about as many words, says that the NFA
has more than sufficient relation to raising revenue and to interstate
commerce so that it is constitutional as a congressional exercise of
those powers.
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U.S. v. Wilson, 159 F.3d 280 (7th Cir. 1998)
In this decision the court of appeals upholds the law banning persons
subject to a domestic violence restraining order against a challenge
that it violates the right to due process, and is beyond the power of
Congress under the commerce clause. The dissent makes a good argument
that the law will trap many many unwary persons unless the courts
require the government show the person possessed the guns knowing the
restraining order made it illegal for him to do so.
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U.S. v. Wojcik, 1986 WL 10622 (N.D.Ill. 1986)
In this case the court upholds the admissibility of evidence seized in a
search of the defendant's home, but which was not listed on the
warrant. The warrant listed some silencer parts and MAC parts the
defendant had ordered from SWD, but the agents found a conversion kit
for a mini-14, and two converted AR-15 type rifles. The court decides
that the kit and rifles, for which the defendant was being prosecuted,
were validly seized as contraband in plain sight. In so ruling the
court implicitly rejects several published decisions (unlike this one)
which held that a firearm is not per se contraband, and if inspection or
test firing is needed to show its illegal nature, then it isn't in plain
sight and isn't subject to this exception.
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U.S. v. Wolfe, 32 F.Supp. 945 (E.D.Mich. 1999)
In this case the court decides that there is no conflict between obeying
the NFA, which requires registration of machine guns, and 18 USC 922(o),
which prohibits the registration of machine guns. Like many other cases,
the court decides that one had to not possess machine guns. The court
also decides that a search warrant for NFA registration paperwork is not
a search for tax returns, and that the prohibition on the use of NFA
paperwork as evidence found at 26 USC 5848 does not preclude the use of
registration information or forms for getting an indictment.
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U.S. v. Woodbridge, 1995 WL 218498 (9th Cir. 1995)
In this unpublished decision, the 9th circuit court of appeals upholds
the conviction of a Washington state licensed manufacturer of NFA
weapons for possessing unregistered machine gun receivers and machine
guns.
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U.S. v. Woodlan, 527 F.2d 608 (6th Cir. 1976)
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U.S. v. Woods, 560 F.2d 660 (5th Cir. 1977)
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U.S. v. Wost, 148 F.Supp. 202 (N.D.Oh. 1957)
In this case an old, totally law abiding citizen is caught with
a sawed off shotgun he made. No threat to the community, he is
prosecuted anyway. His defense is that he didn't know it was
illegal to saw off his shotgun, and he is convicted. Although the
case doesn't say, it is unlikely he did any jail time; they were a
bit more lenient back then.
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U.S. v. Wright, 991 F.2d 1182 (4th Cir. 1993)
In this case the court decides, in part, that a short barreled
Mossberg rifle need not be operational to be subject to the
National Firearms Act, but that if it was restorable by purchasing
$20 worth of parts, or with the use of a ubiquitous paperclip (can't
all guns be fixed with one?) then it was subject to the law.
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U.S. v. Wright, 117 F.3d 1265 (11th Cir. 1997)
In this case the 11th circuit rejects a 2nd amendment challenge to
922(o), the ban on making new machine guns. The court also
upholds 922(o), as a new matter in the 11th circuit, the constitutionality
of 922(o) as an exercise of Congress' power under the commerce clause.
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U.S. v. Wright, No. 00-25-01-JD (D.N.H. 2000)
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U.S. v. Young, 875 F.Supp. 350 (W.D.Va. 1995)
In this case the court decides that where the Gun Control Act uses
"willfully" in describing a crime, the government must show that the
defendant knew the law prohibited what they did, and they did it anyway.
The court distinguishes it from "knowingly" which it says means the
defendant need only have consciously done the act, without any evidence
that the defendant also knew that it was also prohibited or regulated by law.
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U.S. v. Zeidman, 444 F.2d 1051 (7th Cir. 1971)
This case whether a Browning High Power and shoulder stock
is a short barreled rifle, even if they are not assembled when
discovered. The court says yes. Later ATF exempted some
original High Power and shoulder stock combos from the Act, as
collector's items. The court also decides that the cops need not
discover whether the item is registered, and thus legal, it
is presumptive that they are illegal, at least in the case of
High Power and shoulder stock. Also the court finds that
selling six guns is enough for dealing, in the era before the
GCA defined "engaged in the business."
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Varitimos v. U.S., 404 F.2d 1030 (1st Cir. 1968)
In this case the 1st circuit court of appeals decides that under the
pre-68 NFA there is no self incrimination involved in a conviction for
possessign a firearm transferred in the past in violation of the NFA.
The court elects to eliminate a due process problem with the law to
decide that the section barring possession of a firearm transferred
illegally in the past only applies to persons who did not comply with
the NFA to acquire the firearm, and not to people who complied with the
NFA, but at some time in the past the firearm had been illegally
transferred. The court also notes in a footnote, without explanation
that Congress could have banned the transfer of firearm completely, and
therefore requiring the prospective buyer do an order form and submit it
to the government is not a problem. The court seems to be thinking the
NFA is a police power regulation, and not a tax regulation.
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Vollmer v. Higgins, 1992 U.S. Dist. LEXIS 9450 (D.D.C. 1992)
This is the unpublished decision of the trial court, which was
reversed by the court of appeals in
Vollmer v. Higgins. The
trial court decided that Vollmer could not transfer HK94 rifles
which had modified into machine gun configuration, nor could they
transfer such rifles that had been re-modified back into semi-auto
configuration. The court of appeals agreed with the first conclusion,
but rejected the second. Also see the
Vollmer v. Magaw case.
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Vollmer v. Higgins, 23 F.3d 448 (D.C. Cir. 1994)
This is a pretty cool case, after the making ban in 1986
Vollmer got permission from ATF to make up sear gun HK's that had
the block on the mag well removed, and thus the receiver part could
use swing down lowers, that is machine gun lowers, although Vollmer
always put registered sears in them. ATF finally decided that
constituted making machine guns, as the receiver was identical to
an MP-5 receiver when he was done modifying the HK-94's in this
way. So Vollmer then asked to be able to return them to the semi-
auto configuration, and ATF told him he could do whatever he wanted
but they considered the HK-94's he had modified to be post-86
machine guns, even if returned to semi-auto configuration. This is
their "once an mg always" mantra. As Vollmer now had 250 NIB
HK-94's reduced in value quite a bit, he sued. The lower court
upheld the ATF, but the circuit court reversed the lower one and
disagreed with ATF. They agreed the altered receivers were mg's,
but didn't find any basis for ATF calling the modified guns mg's.
They said that once they were returned to a state identical to a
semi-auto they were a semi-auto, if ATF claimed that gun was an mg,
then all HK-94's were mg's something even ATF didn't claim was
true. The court said Vollmer could return the receivers back to
take the clip on lower and sell them as semi-autos. Vollmer then
turned them into sear guns, of course, with a clip on lower.
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Vollmer v. Magaw, 102 F.3d 591 (D.C.Cir. 1996)
In this case, a follow-up to the case of
Vollmer v. Higgins,
the court of appeals reverses the trial court,
and decides that ATF's position on whether a gun
that was converted into a machine gun can never be
converted back was not reasonable, and therefore the
plaintiff is entitled to legal fees under federal law.
ATF claimed that while they lost the case, their position
was a reasonable one under then existing law. The district
court (which had ruled against Vollmer, and been reversed)
agreed, and the court of appeals reversed them again, deciding nothing
in the statute or legislative history supported the "once a
machine gun always" policy of ATF. However the court did
decline to award all the fees claimed, because the court did
rule for ATF on whether the conversion of the HK94 receiver
into a machine gun configuration, with a registered sear
installed, was still a transferrable machine gun.
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Warin v. Director, Dep't of Treasury, No. C 80-210, (N.D.
Ohio October 14, 1983)
In this unpublished case the Court, accepting ATF's argument, decides
that a device which is a combination of parts to convert a gun into a
machine gun is not a firearm under the Gun Control Act. Compare this to
U.S. v. Hunter, in which the government
took the position, which the
Court there accepted, that such conversion parts are also firearms
within the purview of the GCA. Hunter was dropped by the government
before a conviction, so there was no appeal from that decision.
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Warren v. U.S., 447 F.2d 259 (9th Cir. 1971)
In this case the court rejects the argument that the court rule allowing
proof of non registration of a sawed off shotgun by a certificate from
the custodian of records is not unconstitutional in that it violates the
right of a defendant to confront the witnesses against him. The court
decides that government efficiency outweighs the constitutional right,
and that the certificate is reliable because the government is bound by
law to maintain the records. The court also decides that a prosecution
for possessing an unregistered NFA gun does not violate the right
against self incrimination, since no statement is called for from the
defendant either as part of the offense, or to avoid the offense.
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Wasylow v. Glock, Inc., 975 F.Supp. 370 (D.Mass. 1996)
In this case a trial court gives Glock summary judgment in a suit
brought by a jail guard trainee who shot himself in the stomach with his
Glock 21, doing considerable damage. He was trying to put the gun away
in the factory storage box, but didn't clear the chamber before pulling
the trigger to do so. The court decided that the gun was not
defectively designed, that the lack of a magazine safety and manual
external safety were features not defects, and that the warnings that
Glock gave regarding the gun were adequate, and in the court's opinion,
went beyond what is required.
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Waters v. U.S., 328 F.2d 739 (10th Cir. 1964)
In this case the 10th circuit decides that Waters' conviction for
violating the NFA is barred by the 3 year statute of limitations for tax
offenses, and reverses his conviction. The court rejects the government
argument that the offense was "wilfull" and thus a 6 year statute of
limitations applies, noting that the statute in question 26 USC 5851
(under the pre-68 NFA) has no such element. The court does reject the
argument that a previous dismissal of charges for failing to register
the same gun that was the subject of this prosecution (for illegally
making the gun, this time) bars this trial, on double jeapordy grounds,
since the elements of the two crimes are not the same.
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Weidner v. Kennedy, 309 F.Supp. 1018 (C.D Cal. 1970)
In this case the court decides that the plaintiff, appealing from the
denial of a FFL based on his supposedly having wilfully violated the
GCA, is entitled to a new trial on contested issues, and that the
proceeding is not just a review of the administrative record, as the
government argued.
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Wellborn v. Cobray Firearms Inc., 1998 WL 80236 (10th Cir. 1998)
In this case a man who hurt himself with a Cobray made 37mm flare
launcher sues the company after his homemade flare, from Cobray's
load-it-yourself kit blows up the gun, and his hand and arm. The 10th
circuit upholds the dismissal of Sylvia Daniel as a defendant, but
reverses the dismissal of Wayne Daniel, the owner of the manufacturer of
the launcher. The court also upholds the dismissal of claims against
two companies which had gone out of business.
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Wellborn v. Cobray Firearms Inc., No. 98-8106 (10th Cir. 11/04/1999)
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Wenos v. Secretary of the Treasury, No. 88-5334 (S.D.Ill. March 19, 1990)
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Westfall v. Miller, Case No. 4:93CV273 (E.D.Tx. March 28, 1995)
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Westfall v. Miller, 77 F.3d 868 (5th Cir. 1996)
Westfall is a guy who lives in Plano, TX, and wanted to buy a machine gun
made by AWC Systems Technology. He went to his police chief, the Collin
county sheriff and DA, all of whom said no. He submitted the Form 4
anyway, and Wayne Miller, the defendant, bounced it back with a letter
telling him to try harder to get the certification, and refusing to process
it without it. He refused, and sued.
The court of appeals decided, following the
Steele v. NFA Branch case,
that he did not have standing to challenge the law enforcement certification
requirement until he had exhausted the persons suggested by ATF, and still
failed to get a signoff. ATF suggested the head of the Texas Dep't of
Public Safety, as well as local judges. The court, in a footnote, lists
all the officials who have done signoffs in Texas, in the time period in
question. Interesting reading, the list was compiled by ATF for the
case.
The court notes that exhausting the list is a pain, but says there is no
other way to tell if the injury (no machine gun) is caused by laziness, or
by a BS requirement of ATF.
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Weyer v. U.S., 429 F.2d 74 (5th Cir. 1970)
In this case the 5th circuit overturns a conviction for possessing
an unregistered machine gun based upon the
Haynes case. The court decides
that as Texas (then) prohibited private possession of working machine guns,
the defendant would have had to incriminate himself if he would have
complied with the registration requirement. Therefore he did not have
to. The court noted that then he had to obtain a law enforcement certification
to register the gun.
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Whaley v. U.S., 394 F.2d 399 (10th Cir. 1968)
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Wheaton v. Caldera, No. 99-1398 (D.D.C. 1999)
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Whitfield v. Heckler & Koch, Inc., - Cal.App.4th - (2nd Dist. 2000)
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Wright v. U.S., 243 F.2d 546 (6th Cir. 1957)
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Yanovitch v. U.S., 985 F.Supp. 17 (D.Mass. 1997)
In this case the court rejects an argument that the defendant was not
really convicted of a prior felony so as to constittue a predicate
offense for later possessing a firearm as a felon. The court notes that
he stipulated at trial to the felony, and so shouldn't be allowed to
change his mind now, since that agreement as to that fact precluded the
prosecution from proving his prior felony. Also the court decides that
his prior conviction for possessing a firearm w/o a firearm owners
identificaiton card under Mass. law is a felony, in that it is
punishable by up to 2.5 years in prison, and precludes him from being
able to vote under Mass. law. The court notes that the fact that Mass.
continues to let him have a firearm owners id card now does not change
his firearms prohibition under federal law.
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York v. Secretary of Treasury, Plaintiff's brief
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York v. Secretary of Treasury, Defendant's brief
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York v. Secretary of Treasury, 774 F.2d 417 (10th. Cir. 1985)
This one answers something I had
always wondered ever since I first got a copy of the ATF Red Book.
What in the heck is a YAC STEN MK II? See page 75, ATF Ruling 83-5
reprinted there. It is a York Arms Co. semi-auto only, open bolt
STEN gun. ATF ruled it was a machine gun and York appealed that.
The court really ducks the central issue, which was the ATF
decision that guns that could "easily" be converted to full auto
were also machine guns, when prior to 1982 they had not held that.
It looked to me that York did a poor job of presenting the issue
also, Or rather his lawyers did. In any case the court upholds the
classification. And by implication they uphold the new
interpretation of what a machine gun is, one even they note is
newly expanded.
Footnote 3 notes the York "sputtergun" which has been mentioned
by Dan Shea in his MGN columns at least once. It was a STEN gun
w/o any trigger group. You stuck in a mag, pulled the bolt back
and when you let go, held on. No trigger, no mg. Or not, ATF
apparently didn't agree, the case doesn't say, but Shea said ATF
decided the bolt or handle could be a trigger, whatever activated
the gun to fire more than one shot was a "trigger" for purposes of
the definition of a machine gun. York also made registered STENs,
I think, I see them advertised from time to time.
Now-a-days I think ATF would just have prosecuted York for
making and transferring an unregistered machine gun, rather than
ordering a recall as they did in this case. You want to get fancy,
it really is in your best interest to send them a sample to
classify, and sue them civilly if you don't like the decision.
Rather than just going for it.