Note: This is a set of sworn statements from persons in the business of dealing in NFA firearms, as well as private owners of NFA firearms, detailing errors in the NFA Registry, and their personal experience with inaccuracies in the Registry. These declarations were compiled by attorney James H. Jeffries, III, for submission to Congress and the Treasury Department Inspector General. DECLARATION OF JOHN M. APPLETON I, John M. Appleton, make the following declaration pursuant to 28 U.S.C. section 1746. 1. I have been a federally licensed firearms dealer and a special occupational taxpayer under the National Firearms Act of 1934, 26 U.S.C. section 5802, since 1988, presently doing business as John M. Appleton Company, 3519 Spring Lake Terrace, Fairfax, Virginia 22030. Since that time, I have manufactured, imported, and/or bought and sold more than 300 NFA firearms, each transaction requiring transfer approval by the NFA Branch of the Bureau of Alcohol, Tobacco and Firearms ("BATF") at National Headquarters in Washington, D.C. 2. On at least five occasions during the past ten years I have been informed by BATF that a firearm I was seeking to transfer was not registered to me. In each instance I was able to prove that BATF's records were incorrect and that the firearm was indeed registered to me. Almost every special occupational taxpayer I am acquainted with (more than 70) has had the same experience. These lapses by BATF are troublesome because of the potentially serious civil and criminal consequences of possessing NFA firearms not shown by the government's records as being properly in one's possession. 3. Since becoming a special occupational taxpayer in 1988 I have undergone three ordinary compliance inspections by BATF. At each inspection the inspector had a computer printout showing the guns registered to me in the national registry. In each instance the printout was wrong by either reflecting guns registered to me which, in fact, were not, or by failing to list guns which were in fact legally registered to me, or both. The erroneous additions to a printout are not so dangerous since BATF can usually track down the proper registrant and a dealer is unlikely to be prosecuted or have a gun seized which is not actually registered to him and is not in his possession. The omissions from the printout are much more serious since, in BATF's eyes, the dealer is in possession of an apparently unregistered gun, or at least in possession of a gun not apparently registered to him, both serious felonies. And BATF will at least seize and forfeit the gun absent the dealer's ability to show authentic registration documents DD documents which are supposed to be accurately maintained by BATF itself. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September ____, 1998. ___________________________________ JOHN M. APPLETON DECLARATION OF ROBERT IAN LANDIES I, Robert Ian Landies, make the following declaration pursuant to 28 U.S.C. section 1746. 1. I am a federally licensed firearms dealer and a special occupational taxpayer under 26 U.S.C. section 5802 doing business as Ohio Ordnance Works, 310 Park Drive, Chardon, Ohio 44024. I am licensed as a manufacturer, importer and dealer in firearms and have engaged in those activities as a full-time occupation since 1981. My principal business involves the importation, manufacture, sale and repair of those types of firearms required to be registered under the National Firearms Act of 1934, as amended, 26 U.S.C. section 5801, et seq. ("NFA"): machineguns, destructive devices (i.e., artillery pieces, mortars, mines and other explosive devices, etc.), short-barrelled rifles and shotguns, and "any other weapons" as defined by the NFA. I employ 10 employees and conduct firearms and military equipment business all over the world. My customers include various military and civilian agencies of the United States government, as well as state, local and foreign governments. 2. Since 1981 I have imported, manufactured, bought, sold or transferred more than 10,000 NFA firearms, each of which was registered in the National Firearms Registration and Transfer Record ("NFR&TR") maintained by the NFA Branch of the Bureau of Alcohol, Tobacco and Firearms ("BATF") in Washington, D.C. My staff and I are in almost daily contact with the NFA Branch since the lifeblood of my business is the timely and correct processing of our documents by BATF. Each of the makings, purchases, sales and transfers described above required the written approval of BATF on a BATF Form 1, 2, 3, 4, 5 or 10, blank copies of which are attached hereto as Exhibits 1-6. In all, during the past 18 years I have been the registered transferee or transferor on more than 20,000 BATF forms. 3. The state of the NFR&TR maintained by the NFA Branch of BATF is an open and notorious joke in the national firearms community. Almost every Title II dealer (NFA dealer) in the country has personal experiences with being told that a firearm previously registered to him is not shown as being registered to him in the NFR&TR (or not shown as being registered at all). NFA Branch even has a form "Error Letter" for this purpose, a copy of which is attached as Exhibit 7. An example of the NFA Branch's approach to its official duties is reflected in Exhibits 8-10, an exchange of correspondence between one of my customers and the NFA Branch. On May 12, 1997, Mr. Raymond L. McElroy notified NFA Branch that two registered NFA firearms had been reclassified by BATF as non-NFA firearms and should therefore be removed from the national registry (Exhibit 8). Almost a year later, NFA Branch finally responded (Exhibit 9) by asking how the devices had been destroyed! The registrant then had to educate NFA Branch (Exhibit 10) that he had not destroyed anything and did not intend to. As BATF's own official publication 5300.11, Firearms Curios or Relics List showed, BATF itself had reclassified as curios or relics the entire category of firearms in which these two firearms fell, thereby removing them from the class of firearms governed by the NFA and required to be registered in the national registry. During this entire period the owner of the two firearms would have been legally entitled to sell or transfer the firearms to anyone legally authorized to possess a normal firearm, and would have been at serious criminal risk had he done so (as would have been the transferee). 4. When confronted with its errors and shown proof of registration BATF usually backs off (and hopefully corrects its records). But true injustices occur when the owner (or more often his heirs) cannot produce the owner's original registration document; then BATF seizes the firearm and destroys it, even where there is strong circumstantial evidence that the firearm was originally registered. And these situations are always potentially dangerous because of the severe penalties of the law and BATF's well-known propensity for announcing its presence by kicking in doors, stun grenading pets and killing women and children. 5. I myself have been the victim of BATF search warrants, an indictment and years of expensive litigation (before dismissal of all charges) based upon BATF's failure or inability to check the national registry. A transferor transferred to me in 1987 twenty legally registered machinegun conversion kits which he, unknown to me, erroneously described by caliber -- conversion kits having no caliber other than the caliber of the guns into which they are installed. I never treated the kits as anything but what they were, offered them for sale in national publications as conversion kits, and corresponded with BATF's Firearms Technology Branch about the misidentification (even supplying a sample kit). The kits were in my inventory and physically inspected by BATF during 1988 without comment or indication of discrepancy. Yet in December 1989 my home and shop were invaded and searched by federal agents, the conversion kits were seized (along with many other innocuous items), and I was charged with a conspiracy to violate the federal firearms laws. Despite the transferor's partial misdescription of the conversion kits in his transfer application (which was submitted to BATF without my knowledge or input) there could never have been any question about what the components were if BATF had simply examined the original registration papers on these kits (or the approvals for any intervening transfers before they reached me), unless, of course, those prior records were destroyed, misplaced or unretrievable. After years of litigation the indictment was dismissed and the conversion kits were returned to me. See United States v. Hunter, et al., Criminal Nos. 92-80769, 92-80770 (USDC E.D. Mich.), dismissed on 6/27/95. 6. I would calculate that in the past 18 years I have personally been involved in more than 50 transactions where BATF erroneously claimed a firearm was not registered to the person (myself as seller or my vendor where I was the purchaser, or someone seeking my expertise in a third party transaction) who in fact turned out to be the lawful, registered possessor. These BATF errors are always dangerous because of BATF's suspicion of firearms dealers and its tendency to criminalize any record discrepancy (except its own). 7. Attached hereto is a copy of a letter to NFA Branch detailing some of my most recent experiences (Exhibit 11). Exhibit 12 is a copy of BATF's response. 8. In mid 1995 my then office manager, Ronald L. Twiggs had a telephone conversation with Thomas Busey, then Chief of the NFA Branch. Busey complained of the state of the national registry and stated to Twiggs that they (BATF) had even had to discipline two employees for deliberately destroying NFA registration documents to avoid having to work on them. An original declaration by Mr. Twiggs, made around the time of the Busey conversation, is attached hereto. The fact that no one in BATF was prosecuted or even fired seems incredible, particularly when the alleged accuracy of these records is used by the government to obtain search warrants and to send people to prison. 9. I am informed by various knowledgeable dealers and members of the firearms community around the country that my experiences described above are not unique. Dealers and other registrants, including myself, also make mistakes in NFA registration documents such as transposing serial numbers, misspelling names, using incorrect technical nomenclature, and the like. The differences are that private individuals are not charged by Congress with maintaining an official government database and we do not go into court to falsely swear that our records are accurate as BATF does in prosecuting people. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on August ____, 1998. ___________________________________ ROBERT IAN LANDIES DECLARATION OF NOEL E. NAPOLILLI I, Noel E. Napolilli, make the following declaration pursuant to 28 U.S.C. section 1746. 1. I am a federally licensed firearms dealer and was a special occupational taxpayer under 26 U.S.C. section 5802 doing business as Nap Armaments, 251 Napolilli Lane, Fairbanks, Alaska 99710, until 1995. I originally received my first license in 1971. I am a retired public high school teacher and coach of 28 years. I am an honorably discharged veteran of the Missouri National Guard, a licensed pilot, a licensed merchant marine captain, and was a member of the Fairbanks auxiliary police and the Alaska State Defense Force, with the rank of major. 2. In the early 1980s I was a partner in a partnership which was itself a federally licensed firearms dealer and special occupational taxpayer, authorized to deal in firearms governed by the National Firearms Act of 1934, 26 U.S.C. sections 5801-5872 (hereafter "NFA"), such as machineguns and destructive devices. During that period the partnership purchased on my behalf a German MP-40 machinegun (Serial No. 4212) from Specialty Arms of Springfield, Ohio, a now defunct concern. The Bureau of Alcohol, Tobacco and Firearms (hereafter "BATF") approved the Form 3 transfer from Specialty Arms to the partnership at that time and re-registered the gun in the name of the partnership. The gun was shipped to us. 3. In mid-1985 the partners decided to dissolve the partnership and we submitted BATF transfer forms to transfer the partnership inventory to the various partners. Some 32 BATF Forms 3 were submitted to BATF to transfer and re-register various guns to me as an individual special occupational taxpayer. All 32 transfers were approved including one for the MP-40 in question, and I took sole custody of those firearms, entering them in my bound book. 4. In September of 1991 BATF conducted a compliance inspection of my firearms business. The inspector began by comparing my on-hand inventory with a computer print-out of NFA firearms shown as being registered to me in the national registry. That comparison showed me to be in possession of four machineguns not shown to be registered to me, a serious federal felony if true. I was a part-time, low-volume dealer who does not transfer many NFA firearms (less than six per year on average). The discrepancy in the inspector's print-out was thus not due to turnover in my inventory. In fact, the four unaccounted-for guns had been registered to me and in my possession for several years. 5. I was able to produce original BATF-approved Forms 3 for all four guns showing them legally transferred to and registered to me and BATF ultimately agreed that three of the four were registered to me. BATF has never revealed how or why three of the guns were ultimately determined to be registered to me or why their print-out failed to reflect that fact. Form 3 transfers are obtained by the transferor submitting counterpart original forms to BATF. If the transfer is approved, one approved original form is retained by BATF and the other original is returned to the transferor for transmission to the transferee along with the gun. 6. With respect to the fourth gun, the MP-40, which I submitted to BATF for examination, BATF initially took the position that my registration form must be a forgery (apparently because it was a Xerox copy of an original -- a fact I had never noticed before since receiving it from the partnership in 1985 in a package containing 31 other original Forms 3 which were all approved at the same time). When BATF sent the form to its laboratory, it was determined that it was not a forgery, but a Xerox copy of an authentic original. A true copy of that laboratory report is attached as Exhibit 1. BATF has never accounted for the original from which the Xerox copy must have been made, nor revealed why the partnership was unknowingly sent a Xerox copy of that original in 1985 instead of the original that should have been sent according to Treasury Regulations. 7. Confronted with apparently irrefutable proof that the gun was lawfully registered, even though their records apparently neglected to show that fact, BATF then switched theories and contended that the gun must have originally been registered as a "remanufactured" gun, and because it showed no signs of welding it must have originally been registered under false pretenses and was therefore contraband. No further argument was raised that it was not registered to me and no explanation was ever forthcoming as to why the national registry apparently showed no evidence of the gun at all. 8. My attorneys and my congressional delegation pointed out to BATF that (1) "remanufacturing" was not the only legal way the gun could have been originally registered; (2) only the original registration (by a defunct Ohio company) would show how the gun was registered, and therefore whether the registration was false; and (3) BATF had apparently lost or destroyed the very documents which would settle the issue. 9. BATF remained both adamant and obstinate. It never conceded that it must have lost or destroyed the original registration (and all subsequent transfers). It never acknowledged that it had falsely suspected me of forgery. It would never acknowledge that my "unforged" transfer form had to be a copy of an authentic original transfer form. It never revealed why the partnership had been sent a Xerox copy of the form rather than the original. Instead it seized and kept (and presumably destroyed) my valuable machinegun. 10. I brought a lawsuit for the return of my gun but with the Waco and Ruby Ridge tragedies happening at that time, the fear of BATF was paramount in my mind. This, added to the cost, strain and pressure of dealing with an unresponsive government which obviously considered me a liar and forger became too much and I ultimately put an end to it by dismissing my suit. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September ____, 1998. ___________________________________ NOEL E. NAPOLILLI DECLARATION OF JAMES H. JEFFRIES, III I, James H. Jeffries, III, make the following declaration pursuant to 28 U.S.C. section 1746. 1. I am a lawyer engaged in the private practice of law in Greensboro, North Carolina, and have been so employed since 1990. My practice consists almost entirely of federal firearms matters and I have clients, principally licensed firearms dealers, importers, manufacturers and collectors, throughout the United States. I am a member in good standing of the Bars of Kentucky, North Carolina and the District of Columbia, as well as the United States Supreme Court, 11 of the 13 federal Courts of Appeals, and 13 United States District Courts. I am also a member in good standing of the Bars of the United States Tax Court, the United States Court of Federal Claims and the United States Court of Military Appeals. 2. I graduated from the University of Kentucky (B.A.) in 1959, and from the University of Kentucky College of Law (LL.B.) in 1962 where I was Note Editor of the Kentucky Law Journal. I was then selected by Deputy Attorney General Byron White for the Attorney General's Honors Program and remained at the United States Department of Justice until my retirement in December 1989 (except for two years with a federal agency involved in national security). While at the Department I served in the Internal Security Division, the Criminal Division and the Tax Division. I have tried more than 1,000 (probably more than 2,000) federal cases, and supervised the handling of more than 10,000 (probably more than 20,000) federal cases. I have appeared in more than 80 of the 94 federal judicial districts and before five of the federal courts of appeals. At the time of my retirement I was assistant chief of the Western Civil Trial Section of the Tax Division, supervising 35 trial attorneys and 25 support staff with responsibility over all civil tax litigation in most of the western half of the United States. I am the recipient of the Attorney General's John Marshall Award for litigation, as well as two special commendations and two Tax Division Outstanding Attorney Awards. 3. Almost all my cases in private practice involve the Bureau of Alcohol, Tobacco and Firearms ("BATF"). During my government service I also supervised several tax cases involving the firearms statutes administered by BATF. As a special Assistant United States Attorney in the Organized Crime Strike Force program during the 1970s I supervised numerous BATF organized crime investigations. For example, I have been the authorizing attorney for more than 60 BATF search warrants and have personally participated in a number of BATF raids in New York, Kentucky, Louisiana and Maryland. I have supervised several BATF/Strike Force undercover operations directed at organized crime figures and conducted numerous grand jury investigations into violations of statutes administered by BATF. 4. Because of the nature of my firearms practice I had known for years that there were serious problems with the National Firearms Registration and Transfer Record ("NFR&TR") maintained by the National Firearms Act ("NFA") Branch of BATF pursuant to the National Firearms Act of 1934, 26 U.S.C. sections 5801-5872. Numerous clients have recounted to me experiences of being inspected by BATF inspectors with totally erroneous printouts from the NFR&TR. Indeed, I know of no inspection of an NFA firearms dealer in which the national office printout was totally correct. I have obtained acquittals and dismissals in three federal prosecutions improperly commenced as the result of errors in the NFR&TR. 5. In 1980, United States District Judge Oliver Gasch stated in a forfeiture case brought by BATF that "the [intervening claimant] offered extensive evidence in the form of reports of officials of [BATF] to demonstrate the incompleteness of the [NFR&TR]." United States v. Seven Miscellaneous Firearms, 503 F.Supp. 565, 576 (D.C. 1980). Moreover, "Considerable evidence was received that the Bureau's officials have for many years recognized the inadequacy and incompleteness of the Bureau's records." Id. at 578. In 1991 the author of an NFA firearms industry guidebook wrote: The [Gun Control Act of 1968] also provided for an "Amnesty period" wherein an American citizen could, over a period of three months in 1968, register any NFA weapon they had, no questions asked. *** These firearms were registered on Form 4467, of which 54,529 were filed during the amnesty, and another 6000 or so were approved in subsequent years, including "letter" registrations. These were all people who had satisfied the BATF that they had, in fact, registered their firearms during the amnesty, but the filings were lost or misplaced.... Dan Shea, The Machine Gun Dealers Bible, pp. 4-21 - 4-22 (Lane Publishing; Hot Springs, Ark.; 1st ed. 1991) (emphasis added). 6. In October 1995 I was informed by a reliable source -- a senior career BATF official -- that Thomas Busey, the Chief of BATF's NFA Branch, which is the official custodian of the NFR&TR, had just given a headquarters training presentation (known as "Roll Call Training"), taped on videotape, in which Busey stated that when he had assumed command of the NFA Branch the previous year he had discovered an error rate of as much as 50% in the NFR&TR, but that his underlings routinely testified in court (and by certifications under seal) that the NFR&TR was 100% accurate when they knew that was not the fact. I promptly filed a Freedom of Information demand for the videotape, identifying it with sufficient specificity to warn those involved that destruction or denial were not viable responses. Even so, my source advised that the first reaction at BATF headquarters on receipt of my FOIA demand was the proposal by Gail D. Rossides, Assistant Director for Training under whose jurisdiction Roll Call training is conducted, that the incriminating tape be destroyed. Wiser -- and perhaps more honorable -- heads prevailed and the tape was sent to the Department of Justice for its assessment. Ultimately, some months later, a transcript of the tape was furnished to me, along with an unsolicited self-serving "correction" (declaration) by a Busey underling attempting to take the edge off the rather startling admissions made by Busey. A copy of the Busey transcript has been previously provided to the Court, and is also included in Exhibit 2 to this declaration. I also possess a copy of the actual videotape (which BATF and the Department of Justice have continually tried to keep out of private hands) and will supply it to the Court on request. A recitation of these facts, authored by me but adopted by Congressman David Funderburk of North Carolina, was published in the Congressional Record, a copy of which is attached as Exhibit 1. 7. Shortly after the disclosure of the Busey transcript described above, the Department of Justice sent a mailout to all United States Attorneys advising of the Busey matter and supplying copies of other BATF documents which could be deemed to be exculpatory in NFA firearms prosecutions. I received several of these packages as Brady material in various firearms cases I was handling and am acquainted with other defense lawyers who also received them. Attached as Exhibit 2 is a copy of the Brady package distributed to the United States Attorneys by the Department of Justice. 8. The various enclosures to Exhibit 2 demonstrate that the problem of errors in the NFR&TR has been known to the government for more than 20 years, has been recurring, and has never been fixed. Its existence has also been withheld from the general public, the defense bar and the courts for that same period. Several hundred times in each of those years BATF officials have physically testified under oath in open court or through official certifications under seal (as they did in both ways in this case) that they are the official custodians of the NFR&TR, that they have conducted a diligent search of this official government database, and that they found no record of a particular firearm (or as in this case, of a voided transfer). All of this is literally true, but effectively false. At West Point it would, under the cadet honor code, be called a quibble: a literally true, but intentionally misleading, statement. In court it is a violation of that portion of the witness's oath to tell the "whole truth." It is, in fact, a lie by silence -- by what is not said. And it is an effective lie because no lawyer or judge before the Busey disclosure would have thought to inquire, "But how accurate are your records?" BATF Firearms Specialist Gary Schaible twice violated that portion of his oath before this Court in this case, as did whoever furnished the certifications under seal for the Magistrate Judge and the grand jury. 9. The fundamental flaw in the Schaible "correction" to the Busey statement is the silent deception inherent in BATF's consistent approach to the NFR&TR error problem. No doubt it is true that alternative search techniques will disclose registered firearms already in the registry somewhere, even if a name is misspelled or a serial number is transposed. That is not the issue, and never has been. Where the evil occurs, as it did in this case, is that no search technique will locate a registration which has been removed, destroyed, or through BATF negligence or misconduct never found it way into the registry. No one can hear the dog which does not bark. 10. Proof of the accuracy of the Busey revelations is graphically demonstrated by this case. The evidence is compelling (and uncontradicted) that John LeaSure obtained BATF-approved Forms 3 authorizing the transfer of a number of his registered firearms (those forming the basis of Counts 2, 3, 4 and 6 of the indictment). The evidence is equally compelling (and equally uncontradicted) that when he received the approved Forms 3 he changed his mind -- as he had a perfect legal right to do -- wrote "void" on the transfer forms and, as evidenced by contemporaneous telephone toll records (created at a time when he could have had no conceivable motive to create evidence for a future and unanticipated prosecution), faxed them on his dedicated fax line to NFA Branch's dedicated fax line. There they disappeared into what we now know is the black hole of NFA Branch recordkeeping practices. Ironically, they may have been shredded by the very BATF employees Schaible testified were not disciplined for destroying official registration documents. Months later BATF used the presumption of integrity of official governmental acts and the presumption of correctness of official government records to deceive a United States Magistrate Judge of this Court into finding that there was probable cause to believe that LeaSure was in felonious possession of the very firearms BATF had lost or destroyed the records of. In other words, BATF negligently or intentionally destroyed the records showing that LeaSure was the proper legal custodian of the firearms involved and then used that gap in the official records to bootstrap itself into a criminal investigation and to obtain a fraudulent search warrant. That fraudulently procured warrant resulted in the warrantless plain view seizure of the only evidence supporting the surviving count against Mr. LeaSure. Months later BATF and an ignorantly or intentionally complicit prosecutor used the same fraudulent certifications from the NFA Branch to deceive a grand jury of this Court and secure an indictment of LeaSure. Months later BATF and the same prosecutor used the same fraudulent evidence to secure LeaSure's conviction by deceiving a member of this Court. All these abuses of this Court's process occurred at a time when BATF had official knowledge (for at least the previous 20 years) of the gaps in its recordkeeping procedures (and when the Department of Justice was on official notice of the Busey revelations). All these results were procured by the official and formal submission of data the BATF authors knew were incomplete, flawed and therefore silently false. These known defects in the government's case were withheld from this Court and from defense counsel until an unrelated action beyond the government's ability to control brought them to light. 11. This kind of BATF conduct is, unfortunately, not unique to this case nor even limited to this particular form of misbehavior. BATF has a documented 30-year history of citizen abuse, civil rights violations, and insult to the judicial system. See, e.g., United States v. Bagley, 473 U.S. 667 (1985) (BATF entered contingent reward agreements with informant witnesses against the defendant which were withheld from the defendant at trial; informants submitted false affidavits regarding their compensation); United States v. Buchanan, 787 F.2d 477 (10th Cir. 1986) (sexual relationship between BATF case agent and defendant's former wife); Endicott v. United States, 869 F.2d 452 (9th Cir. 1989) (witness tampering and concealment of Brady material by BATF case agent); United States v. Gonzalez, 719 F.2d 1516 (11th Cir. 1983) (mistrial caused by BATF case agent's misleading failure to produce defendant's arrest record). See also, U.S. Department of Justice, Report to the Attorney General on the Events at Waco, Texas, February 28 to April 19, 1993 (Washington, D.C.; October 8, 1993 (redacted version); U.S. Department of Justice, Office of Professional Responsibility, Department of Justice Report Regarding Internal Investigation of Shootings at Ruby Ridge, Idaho, During Arrest of Randy Weaver (undated; available on LEXIS Counsel Connect). See also, Senate Committee on Appropriations, Oversight Hearings on Bureau of Alcohol, Tobacco and Firearms, 96th Cong., 1st Sess. (GPO; Washington, D.C.; 1979); id., 96th Cong., 2d Sess. (GPO; Washington, D.C.; 1980); U.S. Senate, Committee on the Judiciary, Senate Report No. 97-476, Federal Firearms Owners Protection Act: Report of the Committee on the Judiciary, United States Senate, to Accompany S. 1030, together with Supplemental, Additional, and Minority Views, 97th Cong., 2d Sess. (GPO; Washington, D.C.; June 18, 1982); id., Senate Report No. 98-583, Federal Firearms Owners Protection Act: Report together with Additional and Supplemental Views, 98th Cong., 2d Sess. (GPO; Washington, D.C.; August 8, 1984); Colloquy, 131 Cong. Rec. 16984 - 17003 (June 24, 1985); U.S. House of Representatives, Judiciary Committee, House Report No. 99-495, Firearms Owners' Protection Act, 99th Cong., 2d Sess. (GPO; Washington, D.C.; March 14, 1986); Colloquy, 132 Cong. Rec. H1649 - H1803 (daily ed., April 9, 1986); Transcript of Joint Hearing of the Crime Subcommittee of the House Judiciary Committee and the National Security, International Affairs and Criminal Justice Subcommittee of the House Government Reform and Oversight Committee, Review of the Siege of the Branch Davidians' Compound in Waco, Texas, 104th Cong., 2d Sess. (Federal News Service; Washington, D.C.; July 19, 1995 - August 1, 1995); House Committee on the Judiciary and Committee on Government Reform and Oversight, Materials Relating to the Investigation into the Activities of Federal Law Enforcement Agencies toward the Branch Davidians, 104th Cong., 2d Sess. (GPO; Washington, D.C.; August 1996); Transcript of Hearing of the Senate Judiciary Committee, Federal Law Enforcement and the Good Ol' Boys Roundup (Federal News Service; Washington, D.C.; July 21, 1995); id., Federal Raid at Waco (Federal News Service; Washington, D.C.; October 31, November 1, 1995); Transcript of Hearing of the Terrorism, Technology, and Government Information Subcommittee of the Senate Judiciary Committee, Federal Raid in Idaho (Ruby Ridge) (Federal News Service; Washington, D.C.; September 6 - September 14, 1995). See also, David T. Hardy, The BATF's War on Civil Liberties: The Assault on Gun Owners (Second Amendment Foundation; Bellevue, Wash.; 1979). I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September 11, 1998. ___________________________________ JAMES H. JEFFRIES, III DECLARATION OF MONT LAMAR MENDENHALL I, Mont Lamar Mendenhall, make the following declaration pursuant to 28 U.S.C. section 1746. 1. I am a Boeing 777 pilot (captain) for a major United States airline and have been so employed for 32 years. 2. I maintain residences in North Carolina and Florida, spending part of the year in each state. 3. I have been a firearms collector for the past 40 years, including legally registered machineguns. I also participate frequently in competitive shooting matches, both organized and unorganized, involving registered machineguns (principally submachineguns). 4. Since approximately 1978 I have bought and/or transferred approximately 55 National Firearms Act ("NFA") firearms, i.e., those which are required to be registered in the National Firearms Registration and Transfer Record maintained by the NFA Branch of the Bureau of Alcohol, Tobacco and Firearms ("BATF") in Washington, D.C. 5. In April 1998 I applied to NFA Branch for transfer authorization in order to send a registered machinegun to a gunsmith. The completed BATF Form 5, "Application for Tax Exempt Transfer and Registration of a Firearm," a blank copy of which is attached hereto, was returned to me with a note stating that the firearm concerned was not registered to me. 6. This was a frightening experience. Possession of an NFA firearm which is not registered to the possessor is a federal felony punishable by up to ten years in prison and a $10,000 fine. I am also aware of how BATF sometimes "enforces" the law by shooting first and asking questions later. 7. Because of my general awareness of BATF's sloppy record-keeping I had taken the precaution of keeping all my original NFA registration documents in a bank safe deposit box. 8. I immediately sent a copy of my original registration to the NFA Branch. Two months later the NFA Branch then approved my transfer application without any comment, apology or explanation.] 9. I am informed by various knowledgeable members of the firearms community around the country that my experience described above is not uncommon. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on August ____, 1998. ___________________________________ MONT LAMAR MENDENHALL DECLARATION OF ERIC MARTIN LARSON I, Eric Martin Larson, make the following declaration pursuant to 28 U.S.C. section 1746. 1. I am currently a Senior Evaluator at and have been employed full time by the U.S. General Accounting Office (GAO) in Washington, D.C. since 1987. My professional duties at GAO are primarily the statistical analysis and evaluation of computerized data, including the validity and reliability of administrative data records. Many of these data (such as those pertaining to various classes of legal immigration, and the reporting of diseases) are complex and must be interpreted according to various decision rules regarding their definition(s), data entry procedures, and editing and quality control checks for errors. During three of the 11 years I have been employed at GAO, I have received the top outstanding achievement award in my division or group based upon my abilities to analyze and interpret complex data. It should be emphasized, however, that all statements by me in this Declaration and my analyses of data gathered and reported by the Bureau of Alcohol, Tobacco and Firearms under the National Firearms Act of 1934, as amended, 26 U.S.C. section 5801, et seq. ("NFA") is the result of work by me as a private individual and does not represent the policy or position of the U.S. General Accounting Office. 2. In addition to the above professional experience, I have earned the following degrees from the University of Texas at Austin: Bachelor of Journalism with Honors, 1974; Master of Arts (journalism), 1976; Master of Science in Community and Regional Planning, 1979; Master of Arts (sociology), 1984; and Doctor of Philosophy (demography), 1987. 3. Since 1986, in furtherance of my personal firearm collecting and research interests, I have been studying certain firearms originally manufactured in the United States in or before 1934 (but not replicas thereof) which are currently defined as "any other weapon" ("AOW") under the NFA. These AOWs are primarily specialized firearms designed for trappers, and odd firearms such as knife-pistols which fall under the NFA largely for technical reasons, rather than any history of use as weapons by criminals. Today, virtually all of these firearms are valuable collector's items because they: (1) were created at a time when there were virtually no laws regarding firearm design; (2) are very specialized firearms that had a limited commercial market even at the time they were manufactured; (3) unlike any other NFA firearm, the Congress repeatedly lessened controls on them, although the NFA virtually destroyed the retail market for these types of firearms; (4) represent a unique niche in U.S. firearms evolution, design and genealogy, because there is nothing else like them; and (5) are extremely rare--I estimate that fewer than 17,000 exist from an original group of about 170,000 that were manufactured in the United States in or before 1934. 4. After I began publishing my research in 1993, privately as well as in various major firearm magazines and reference books, collectors and others contacted me with disturbing information regarding the pre-1934 AOWs I have been studying. Specifically, in at least six instances, persons told me that they had inherited a registered AOW that was in their family for many years, yet BATF claimed the firearm was not registered. Upon attempting to transfer ownership to the lawful heir the BATF stated that the firearm was not registered in the National Firearms Registration and Transfer Record (NFRTR) and thus was contraband that must be involuntarily forfeited. When the heirs located original registration paperwork for the firearms, however, the BATF stated that a mistake had been made and then processed the ownership transfer. In other instances, lawful heirs have told me that they specifically recalled the firearm was registered (i.e., IRS agents came to the house to drop off registration documents), but could not locate their copy of the registration form (often some 30 or more years later), and were forced to abandon their firearm to BATF because BATF claimed the firearm was not registered. 5. Based upon a careful analysis of statistical data regarding NFA registration activity released publicly each year by BATF since approximately 1990, and written and oral statements to me by BATF personnel, it appears that BATF has been adding firearms to the NFRTR after being confronted with lawful registration documents by owners (or heirs) of NFA firearms. I testified about obvious errors in the NFRTR, and the serious legal problems created by missing or destroyed NFA firearm registration documents, before the House Subcommittee on Treasury, Postal Service, and General Government Appropriations in 1996, 1997 and 1998 (references hereinafter will be to "1996 testimony" and so forth, indicating page numbers in the published hearing records). While my primary research focus and interest is upon pre-1934 AOWs, I recognize that the problems identified with the NFRTR data potentially affect any firearm that is registered under the NFA. 6. The NFRTR data indicate potentially serious problems with original NFA firearm registrations. Specifically, in analyses of data publicly released by BATF, I found that during 1992 to 1996, BATF may have added 119 or more firearms to the NFRTR which were originally registered on Form 1 or Form 4467 during 1934 to 1971, for which BATF lost or deliberately destroyed the original records. In theory, the number of original registrations in past years should not change over time; however, these registrations--at least 27 years old, and many older than that--have increased. The only logical change in the original BATF registration data should reflect decreases in the number of registered NFA firearms. The reason is that NFA firearms that BATF has removed from the NFA because it has determined that they are primarily collector's items and not likely to be used as weapons, are no longer required to be registered. Yet, the annual BATF data consistently reflect apparent increases in the number of registered firearms for years in or before 1971. From 1992 to 1996 (the last year for which BATF has publicly released data), inspection of these annual data discloses that the number of NFA firearms registered on Form 4467 has increased by 36 (1997 testimony, Table 1, page 63; further interpretation of errors and additions of firearms is on pages 57 to 62, and pages 84 to 88). There are other discrepancies and impossibilities reflected by these data. For one, in 1996, there were 164 Form 4467 registrations before 1968; this is impossible, because Form 4467 did not exist before 1968. For another, the 1996 data show 146 Form 4467 registrations for years after 1971; however, the U.S. Supreme Court prohibited such registrations on April 5, 1971. In a telephone interview in early April 1996, BATF employee Gary Schaible told me that he could not explain post-1971 registrations, and in response to my question (repeated three times to make sure of its accuracy) whether BATF had ever added firearms to the NFRTR because BATF lost the original registration and a lawful owner produced his or her copy of the registration, he stated: "Yes. I assume that's happened." In 1997, NFA Branch Chief Nereida W. Levine stated in a letter to me that if a registered NFA firearm was not recorded in the NFRTR, the NFRTR would be amended to reflect the registration (1996 testimony, pages 88 to 96; 1997 testimony, page 97. Regarding Form 1 registrations, from 1992 to 1996, the BATF has apparently added at least 83 firearms that it reports were originally registered during 1934 to 1971 and during unknown years (1997 testimony, Table 2, page 65; further interpretation on pages 64, 66 and 67). To try and get a better idea of the magnitude of the possible errors in the NFRTR for all data from 1934 to 1971, including years labeled "unknown" by BATF, I inspected total "REGISTRATION ACTIVITY" for these years using data publicly released by BATF during 1992 to 1996. These data show that BATF added 666 NFA firearms and/or various firearm transfer documents during 1992 to 1996 for the years 1934 to 1971, including unknown years (1997 testimony, Table 8, page 94; further interpretation, and documentation of errors BATF identified in the NFRTR, is on pages 95 to 121). The NFA data exhibit other logical impossibilities, such as firearm registration activity occurring before 1934, the year the NFA was enacted (1996 testimony, Table 3, page 91). 7. The NFRTR data also indicate potentially serious problems with NFA firearm transfers. Specifically, during 1992 to 1996, BATF added 283 Form 4 (tax paid) transfers to existing data (see 1997 testimony, Table 4, page 71). Note that 192 of these additions of Forms 4 occurred in 1996, for years prior to 1968--that is, 30 or more years ago. This apparently means that during the course of an attempted transfer of the firearm the BATF discovered there was no record of the firearm in the NFRTR, and was forced to add the data to the NFRTR when confronted with valid Form 4 transfer documents retained by the owners of the firearms. 8. In response to my Freedom of Information Act request for a copy of the data entry manuals for the NFRTR, the BATF initially refused to release anything, stating that these manuals are "related solely to the internal personnel rules and practices of an agency." I pointed out that I was asking only for instructions on how NFRTR data were entered and retrieved, including decision rules on classifications, etc., and not information about any specific firearm. BATF ultimately responded by sending me 23 pages (some heavily censored) of materials. Inspection of these 23 pages indicates that the NFRTR data base instruction manual is organized haphazardly at best. There is no index, materials appear to have been randomly inserted, and the documents themselves are not of a uniform format. No information about data fields, variable names or evidence of comprehensive and systematic procedures to detect data entry errors or prevent illegal firearm registrations or transfers is included (1997 testimony, page 121). 9. In May 1997, I complained about the preceding and other errors in the NFRTR to the Office of Inspector General, Department of the Treasury, which responded in June 1997 by referring my complaint to BATF. BATF conducted an internal investigation of my complaint and in a final report dated September 1997 dismissed all of my charges (1998 testimony, pages 67 to 119). I specifically refuted each BATF denial with valid and reliable evidence, identified evidence that BATF ignored, did not consider or misrepresented, and pointed out that BATF employee Gary Schaible had perjured himself in federal court in 1996 or in the 1997 internal report, because his statements regarding the deliberate destruction of NFA firearm registration documents by BATF employees were blatantly contradictory (1998 testimony, pages 120 to 129). 10. In October 1997, the Honorable Dan Burton, Chairman, House Committee on Government Reform and Oversight, requested the Office of Inspector General, Department of the Treasury, to (1) review the BATF internal report, and (2) independently audit the BATF's firearm registration practices. The Treasury Department report was scheduled to be delivered to the Committee in June 1998; however, it has been held up by reviews within the BATF and possibly by other factors, and is unavailable at this time. 11. The issues of errors in the NFRTR, and particularly those of the lost or destruction by BATF of original firearm registration documents and transfer records, potentially affect anyone who owns an NFA firearm. BATF's continued refusals to address these problems is alarming, and must be remedied. 12. Finally, issues of the legitimacy of NFA firearms registrations and ownership are at stake. For example, at least four firearms that I lawfully purchased, as evidenced by approved Forms 4 for each of them, were apparently illegally registered by the BATF years before I acquired them and without my knowledge. When I requested a statement in writing from BATF as to whether it intended to seize these firearms as contraband because BATF itself had illegally registered them, the BATF advised me that the NFRTR showed me to be the lawful owner of these firearms. Nothing in the NFA says it is illegal to possess a firearm transferred in violation of the NFA; however, any such firearm can be seized as contraband. My repeated requests for a statement from BATF as to whether it regards my four firearms as contraband have been ignored. The reason isn't too hard to figure out. If BATF states the firearms are contraband, then BATF is admitting at least some of what I have alleged: namely, that the accuracy and integrity of the NFRTR has been compromised by BATF itself. If BATF states that the firearms are not contraband, that's an equally difficult position, since information provided by BATF as to the dates of original registration, as well as copies of documentation proving that these firearms were illegally registered by BATF, would clearly refute such a position (1997 testimony, pages 88 to 92; 1998 testimony, pages 130 to 136). 13. It is my considered professional opinion that the NFRTR registration activity data publicly released by BATF during each of the years 1992 to 1996, for the foregoing reasons, demonstrate reasonable legal doubt as to the accuracy and integrity of the NFRTR. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September 12, 1998. _______________________________ ERIC MARTIN LARSON DECLARATION OF SAEID SHAFIZADEH I, Saeid Shafizadeh, a naturalized citizen of the United Sates and resident of Jefferson County, Kentucky, make the following declaration; 1. Since 1982, pursuant to various appropriate licenses and permits issued by the Bureau of Alcohol, Tobacco and Firearms (hereinafter BATF) of the United States Treasury, I have been "engaged in the business" of "firearm," and "ammunition" as defined by Title 18 United States Code (U.S.C.) sections 921(a)(3), (17)(A) & (21). Initially, I was a sole proprietor, however, my subsequent involvement has been as an officer of a corporation that is engaged in the business of firearms and ammunition. 2. Presently, I am the responsible person as described by 27 C.F.R. section 55.49(b)(2) and section 178.47(b)(2) who has the power to direct or cause direction of the management and policies of Pars International Corporation (hereinafter Pars), located at 509 Cheyenne Avenue, Louisville, Kentucky 40209. Pars is organized under the laws of the Commonwealth of Kentucky and is treated as a "S" corporation pursuant to the Internal Revenue Code, 26 U.S.C. section 1362. 3. Pars possesses a Federal Firearms License (hereinafter FFL) type 11, issued by the BATF, as an importer defined by 18 U.S.C. section 921(a)(9) of firearms and ammunition including destructive devices and ammunition for destructive devices and armor piercing ammunition defined by 18 U.S.C. sections 921(a)(4), (17)(C). Pursuant to provisions of 18 U.S.C. sections 843(a) & (b), Pars is also licensed by the BATF as a type 23 "Importer of High Explosives" which is defined by 18 U.S.C. section 841(g). Pursuant to provisions of Arms Export Control Act and Title 27 C.F.R. section 47.31, Pars is registered with BATF as an importer of U.S. Munition List Items. 4. Pursuant to provisions of Title 26 U.S.C. section 5802, Pars has registered with the Treasury Secretary and paid the Special Occupational Tax imposed by 26 U.S.C. section 5801 which authorizes it to deal in National Firearms Act (hereinafter NFA) firearms as defined by 26 U.S.C. section 5845(a). 5. Pars has filed the identification Number 61-1140738 with the United States Customs (hereinafter USC) as an importer pursuant to provisions of 19 C.F.R. section 24.5, and as such, it has posted the appropriate surety bond with the USC pursuant to provisions of 19 C.F.R. section 113. Pars is also the custodian of a U.S. Customs High Security Bonded Warehouse in Kentucky. 6. As the responsible person who has the power to direct or cause direction of the management and policies of Pars, I have devoted time, attention and labor to the business of importing and/or dealing in firearms and ammunition as a regular course of trade or business with the principle objective of livelihood and profit through the purchase, importation, sale or distribution of firearms and ammunition. 7. Since 1982, I have handled over 73,000 transactions in firearms some of which were NFA firearms the "transfer" (See 27 C.F.R. section 178.11) of which require filing of an appropriate application with the BATF's NFA branch and strict observation of provisions of Title 18 and 26 U.S.C. and 27 C.F.R. section 179. 8. Pars' customers include various law enforcement agencies and their officers/agents, manufacturers, distributors, dealers, movie industry, members of the armed forces, national guard units and private individuals authorized to lawfully obtain firearms and/or ammunition. 9. Title 26 U.S.C. section 5841 states: "The Secretary shall maintain a central registry of all firearms in the United States which are not in the possession of or under the control of the United States. This registry shall be known as the National Firearms Registration and Transfer Records and shall include: (1) identification of the firearm as required by this part; (2) date of registration; and (3) identification and address of person entitled to possession of the firearm." 10. Title 26 U.S.C. section 5861(d) states: "it shall be unlawful for any person - ... (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Records;" 11. As an importer, I have registered imported NFA firearms with the NFA Branch of BATF by filing the notice of firearms imported on Form 2 (ATF F2). I have also transferred NFA firearms by filing application and receive approval on Forms 3, 4 and 5, therefore, I maintain routine contact with the NFA Branch. 12. After enactment of the Public Law 99-308 in May of 1986, I learned that at least one examiner at the NFA branch instead of going through the task of entering registration and transfer records submitted by the industry members into the NFRTR system destroyed some records. At that time BATF officials assured the industry that was an isolated incident, however my experience over the years has proven otherwise. The conduct of that examiner exposed the applicant(s) for registration who were in possession of NFA firearms which were not entered in the NFRTR system to the charge of violating the provisions of 26 U.S.C. section 5861(d). The penalty for such violation is prescribed by 26 U.S.C. section 5871 as fine not more than $10,000, or imprisonment not more than ten years, or both. 13. I believe Title 26 U.S.C. section 5841 imposes an implied obligation upon BATF to ensure the accuracy of the NFRTR. The accuracy of NFRTR has perhaps become the single most significant concern of our industry. There has been a number of occasions when BATF inspectors conducted an audit of my firm's inventory of the NFA firearms and have discovered discrepancies between the print out provided by the NFA branch and the actual inventory which have always been resolved in my favor. 14. Years ago I made a routine habit of calling the NFA branch and ask for a copy of the NFRTR print out of NFA firearms registered to my firm. BATF used to provide the print out which I used to perform a self-audit that usually resulted in discovery of some discrepancies. I always reported the inaccuracies to the NFA branch and requested the mistakes in their system to be corrected. In 1990, when Wayne Miller was appointed as the chief of the NFA branch I called him and asked for a copy of the print out. He asked me to send him a request in writing which I gladly complied with on November 6, 1990 (Exhibit 1). Miller sent a reply dated November 15, 1990, declining to provide a copy of the print out (Exhibit 2). 15. In 1992, pursuant to provisions of the Freedom of Information Act (FOIA), Title 5 U.S.C. section 552, I obtained a copy of the NFRTR print out of the NFA firearms registered to my firm which contained a number of serious errors. On May 14, 1992, I wrote a letter to Miller and described the errors I had discovered (Exhibit 3). I provided the serial numbers for seven NFA firearms that had been transferred out of my inventory, however, the NFRTR still showed them registered to my firm. That is, I had applied to the NFA branch for the transfer of those firearms and NFA branch had approved the transfers after presumably NFRTR had been updated. I also provided the serial numbers for two firearms that had never been in my possession but the NFRTR showed them registered to my firm. Finally, I provided the serial number for a firearm that was lawfully in my possession pursuant to an approved application by the NFA branch but the NFRTR did not reflect that. On September 2, 1992, Miller sent a letter indicating that the NFRTR had been amended to correct the errors (Exhibit 4). 16. On January 20, 1992, I received one machine gun serial number 3471 from Nampa Police Department for repair, the transfer of this NFA firearm had been approved to my firm by BATF on January 6, 1992 (Exhibit 5). After the firearm had been repaired and I applied to transfer the firearm back to the Nampa Police Department, I received an "ERROR LETTER" concerning three other NFA firearms with a notice on the bottom regarding the serial number 3471 (Exhibit 6). BATF, indicated that the NFA firearm serial number 3471 was still registered to Nampa, however, the examiner who suspected the error might be on part of the NFRTR, requested a copy of the approved transfer (proof of registration) to my firm. When I established that the error was on NFRTR part, that transfer was approved. 17. During an inspection conducted by BATF in 1995, the inspector asked me to produce one NFA firearm serial number B071497M that according to NFRTR was registered to my firm. I was unable to find any records showing that I ever had that firearm in my inventory, the inspector demanded that I write a note indicating that I did not have that firearm in my inventory. At that time, unaware of my rights, I wrote a brief letter indicating that I did not have that firearm in my inventory (Exhibit 7). Later on, BATF sent me a copy of a letter addressed to a dealer clarifying that NFA firearm was indeed registered to his company and not to my finn. 18. On July 26, 1995, Pars imported and registered six NFA firearms by filing an ATF Form 2 with the NFA branch (Exhibit 8). Along the left margin of the exhibit the stamped signature of "Thomas B. Busey" can be seen which signifies the registration in the NFRTR had been processed. The back of the exhibit is stamped by the BATF showing July 31, 1995, the date on which the application had been received. When I applied to transfer these firearms to customers, NFA branch declined to approve the transfer by sending an "ERROR LETTER" indicating that the firearms were not registered. When I contacted the examiners on August 15, 1995, unaware of the Exhibit 8, they indicated there were no records of those firearms ever being registered. 19. On January 19, 1996, I abandoned to the BATF one NFA firearm serial number E1212611 that had no further use for my firm. On February 2, 1996, I informed NFA branch of the abandonment and provided a copy of the receipt and requested the removal of that firearm from the NFRTR (Exhibit 9). On May 23, 1997, BATF approved the transfer of five NFA firearms to a customer, one of those firearms is serial number 54570. Based on the latest NFRTR record print out of the NFA firearms registered to my firm which was obtained pursuant to another FOIA request, the serial numbers E1212611 and 54570 are still registered to my firm. These latest errors have been averred in Shafizadeh v. BATF, 3:97 CV-767A (D.C.W.D. Ky. filed Nov. 24, 1997). 20. The Exhibit 10 is a self-explanatory letter by BATF's Director to Senator Ford of Kentucky concerning a complaint I had lodged that dealt with the records getting lost or destroyed at the NFA branch. Those were registration and transfer records for two NFA firearms that were filed on February 20, 1998, but were not entered into the NFRTR system until June 29, 1998, after I had complained to Senator Ford. The type of errors, mistakes and inaccuracies in the NFRTR that I have described are common complaints in the NFA firearms industry. Although BATF officials are aware of these errors, they continue to ignore them. While the industry's access to NFRTR print out is severely restricted, the burden of establishing the system's sanity, errors and inaccuracies fails squarely on the shoulder of the licensees. I am prepared to testify in person as to the truth of the here above statements. In accordance with Title 28 United States Code (U.S.C.) section 1746, I hereby declare under penalty of perjury that the foregoing is true and correct. Saeid Shafizadeh Date 9/22/98 P.O. Box 37184 Louisville, Kentucky 40233 (502)363-0000