No. 79-1382 UNITED STATES COURT OF APPEALS TENTH CIRCUIT KENNETH W. DAVIS, JR., Plaintiff-Appellant vs. ERNST ERDMANN & REX D. DAVIS, Defendants-Appellees APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA TULSA DIVISION Original Brief For Appellant June 20, 1979 Robert S. Travis Ralph H. Duggins, III. Cantey, Hanger, Gooch, Munn & Collins 1800 First National Bank Building Fort Worth, Texas 76102 817/335-9595 Attorneys for Appellant [new page] i TABLE OF CONTENTS Page STATEMENT OF THE ISSUES .............................. 1 STATEMENT OF THE CASE ................................ 2 Statement Of The Facts .......................... 3 SUMMARY OF THE ARGUMENT ............................... 11 ARGUMENT .............................................. 13 Scope of Review .................................. 14 Statutes Involved ............................... 16 I. IS PLAINTIFF'S EXHIBIT 19 A "FIREARM" UNDER 26 U.S.C. SECTION 5845 ...................... 17 A. Is The Knife Pistol Primarily A Collector's Item .................................. 19 B. Is The Knife Pistol Likely To Be Used As A Weapon ................................ 22 II. CAN THE KNIFE PISTOL BE PLACED IN UNSERVICEABLE CONDITION AND IMPORTED AS A CURIO .................................. 30 A. Can The Knife Pistol Be Placed In Unserviceable Condition ........................... 33 B. Is The Knife Pistol A Curio .......................... 40 CONCLUSION ............................................. 41 CERTIFICATE OF SERVICE ..................................... 42 [new page] TABLE OF CITATIONS ii Page Cases: American Petroleum Institute v. E.P.A., 540 F.2d 1023 (10th Cir. 1976) ...................... 14, 29 B. H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254 (5th Cir. 1971) ........................... 15 Brennan v. United States, 435 F.Supp. 451 (E.D. Mich. 1977) ...................................... 16 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) ........................... 14, 25, 29, 30 Federal Security insurance Company v. Smith, 259 F.2d 294 (10th Cir. 1958) .............................. 16 Interstate Contract Carrier Corp. v. United States, 389 F.Supp. 1159 (D. Utah 1974) ............................. 35 Keen Transport, Inc. v. United States, 446 F.Supp. 5 (N.D. Ohio 1976) ............................................. 35 Pearson v. Western Elec. Co., Etc., 542 F.2d 1150 (10th Cir. 1976) ............................................ 16 Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969) ........................................... 14 Sabin v. Butz, 515 F.2d 1061 (10th Cir. 1975) .................. 14 Transportation Insurance Company v. Hamilton, 316 F.2d 294 (10th Cir. 1963) ............................... 15 United States v. Cartwright, 411 U.S. 546 (1973) .............. 14 United States ex rel. Paxos v. Rundle, 491 F.2d 447 (3rd Cir. 1974) .................................. 15 United States v. United States Gypsum Co., 333 U.S. 364 (1948) .......................................... 15 United States v. Wholesale Oil Co., 154 F.2d 745 (10th Cir. 1946) ................................ 16 Volkswagenwerk v. F.M.C., 390 U.S. 261 (1968) .................14 [new page] TABLE OF CITATIONS (Continued) iii Cases: Page Miscellaneous : Gun Control Act of 1968, 18 U.S.C. section 921 et seq., ... 2, 5, 8, 9, 16, 30, 31, 32, 33, 34, 40, 41 Administrative Procedure Act, 5 U.S.C. section 706 ...... 14 National Firearms Act. 26 U.S.C. section 5801 .... 1, 5, 8, 9, 16, 17, 18, 22, 24, 25, 26 Code of Federal Regulations 29 C.F.R. Part 178 and 179 ......................... 18, 31, 32, 40 28 U.S.C. section 1291 ............................. 3 [new page] No. 79-1382 UNITED STATES COURT OF APPEALS TENTH CIRCUIT KENNETH W. DAVIS, JR., Plaintiff-Appellant vs. ERNST ERDMANN & REX D. DAVIS, Defendants-Appellees APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA TULSA DIVISION Original Brief For Appellant STATEMENT OF THE ISSUES There are three basic issues involved in this litigation. 1. Whether the Director, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury ("ATF"), as designee of the Secretary of the Treasury, acted arbitrarily, unreasonably, or otherwise unlawfully in failing to find the knife pistol in question was, "by reason of the date of its manufacture, value, design, and other characteristics ... primarily a collector's item and ... not likely to be used as a weapon" (26 U.S.C. section 5845(a)). 2. Whether the Director of ATF acted arbitrarily, unreasonably, or otherwise unlawfully in failing to 2 issue a permit for importation of the knife pistol in question as a "curio or museum piece" within the meaning of 18 U.S.C. section 925(d)(2), if such item were made "unserviceable." 3. Whether or not the knife pistol could be made "unserviceable" by the methods suggested by Appellant and agents of the ATF. STATEMENT OF CASE Appellant, a Tulsa, Oklahoma, businessman and licensed collector of antique guns and armament, noticed an advertisement in an auction catalog sent to such collectors, indicating that a rare and unusual knife pistol was being offered for auction by an English specialist auctioneer in antique arms and armament. Appellant was the successful bidder for the knife pistol. He then sought to import it as a "curio or Museum piece" (18 U.S.C. section 925(d)(2)) and "primarily a collector's item and ... not likely to be used as a weapon" (26 U.S.C. section 5845(a)). After a series of submissions of forms, correspondence and other items, including an offer to make the knife pistol "unserviceable" by Appellant, the Director of ATF denied the necessary importation permit. Suit followed in 1975 in the United States District Court in the Northern District of Oklahoma. Originally, Appellant sought to mandamus the Director of ATF or, alternatively, have judicial review pursuant to the Administrative Procedure Act, of the Director's refusal to issue the necessary importation permit. The 3 mandamus [footnote 1] aspect was denied, but judicial review was ordered. After several continuances, the matter was tried without a jury to United States Magistrate Robert Rizley in September of 1978. Magistrate Rizley filed Findings of Fact and Conclusions of Law in favor of Appellant in November of 1978. The Magistrate recommended judgment for Appellant. The Judge to whom the case was originally assigned (Judge Allen Barrow) died in February of 1979 before ruling on the Appellee's objections to the Magistrate's Findings of Fact and Conclusions of Law. The case was then reassigned to Judge H. Dale Cook. Judge Cook rejected the Magistrate's Findings of Fact and Conclusions of Law and entered Judgment in favor of Appellees. Pursuant to 28 U.S.C. section 1291, Appellant has appealed Judge Cook's Judgment, contending that it was clearly erroneous. Statement Of The Facts This case involves a series of repeated attempts by Appellant and his attorneys to secure a permit from the Director of ATF, to import a small knife gun of U.S. origin from England. Appellant, a federally licensed collector of antique and novel guns and armament, had been collecting such --------------------------------- 1. Appellant contended, among other things, that the denial was issued by a subordinate and not the Director. The Director later affirmed the denial. 4 items for some years (tr. 8). [footnote 2] Sometime in late 1972 or early 1973, Appellant noticed an advertisement in an auction catalog by Wallis & Wallis of Sussex, England, a specialist auctioneer of antique arms and armament, offering a rare and unusual knife pistol manufactured by the U. S. Small Arms Company. Because the item is seldom offered for sale by United States dealers, and then only to collector's, Appellant submitted a bid. The bid was successful and the item was shipped to Appellant and received by the Customs Import Authority in Tulsa, Oklahoma. (Px 19A and tr. p. 10). Documents accompanying the knife pistol included a certificate that the knife pistol "has not been proved and must be deemed unsafe to fire, and must not be offered for sale as serviceable." This certificate issued, by the Proof House of the Worshipful Company of Gunmakers, included a statement that the arm was a "collectors and museum piece which is not intended to be fired". (Px 19A). After contacting the ATF in Washington, Appellant filed in October of 1973 a "Form 6", an "Application And Permit For Importation Of Firearms, Ammunition, And Implements Of War", requesting authorization from ATF to import the knife pistol (Px 3). Appellant received a letter in November of 1973 from Thurman Darr, Chief of the Technical Services Division of ATF, denying the application. Mr. Darr apparently ignored the "collector's item" and "curio" language of the statutes, and simply in- ------------------------------- 2 tr. refers to the transcript of Proceedings before the Magistrate in September of 1978. 5 formed Appellant that the application had been denied, stating in part (Px 2): Section 925(d)(3) of Title I of the Gun Control Act of 1968 specifically prohibits the importation of any firearm falling within the definition of a "firearm" as that term is defined in Section 5845(a) [26 U.S.C. section 5845(a)] of Title II of the cited Act. The U.S. Small Arms Company knife pistol falls into the classification of "any other weapon" as defined in Section 5845(a) since it is a device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive. Appellant sought reconsideration of that denial. (Px 4). In response, Mr. Darr replied in January of 1974, stating in part (Px 6): Section 925(d), of Chapter 44, Title 18, United States Code, which became effective October 22, 1968, contains the provisions governing the importation of firearms into the United States. Importation of a type of weapon that falls within the definition of a firearm as defined in Section 5845(a), Chapter 53, Title 26, United States Code, is specifically prohibited. . . . Recently, research was conducted by members of our technical staff, on the possibility of re-classifying the U. S. Small Arms, .22 caliber knife pistol. However, because this particular knife pistol lacks any positive means of [footnote 3] identification, such as a trade name or serial number, --------------------- 3. The knife pistol actually had the trade name "mfg. by U. S. Small Arms Co." stamped on it. Statutory provisions for issuing a serial number were then and now in force -- see 26 U.S.C. section 5842(b). 6 and because it fires readily available ammunition, it is impossible to reclassify this item. . . . We possess information that knife pistols of the type you wish to import were commercially available as late as 1952. We also have documented cases where they were used as weapons. Based on these facts we feel that removal of this weapon from the "any other weapon" category would not be in keeping with the intent of the Congress of the United States in enacting the Gun Control Act of 1968. Appellant wrote Mr. Darr in February of 1973 asking for information which supported the statements made in page 2 of the letter (Px 6) to the effect that the knife pistol was "commercially available as late as 1952" and that ATF possessed documentary information illustrating that the knife pistol was used as a weapon. (Px 7). In April of 1974, Mr. Darr replied in part: "We are not at liberty to divulge information concerning the past availability of the knife pistol by commercial outlets or the documented cases where this type of weapon was used in the commission of a crime." (Px. 9). Appellant thereafter submitted to Mr. Darr a request for a review of the decision to deny an import permit. As grounds therefor he submitted about seven attachments supporting his position. Three of the attachments were letters from curators of well known gun museums indicating either that a knife gun simi- 7 lar to the one in question (Px 19) was in their collection, or that such an item was "a curio which has museum interest." Two other attachments were opinion letters from firearms experts who stated, for example, that the knife pistol was, "because of its odd design and date of manufacture,.., obviously a collector's item." (See "Exhibit C" to Px 10). Finally, Appellant attached letters from lieutenants in the New York City and Los Angeles Police Departments which indicated neither had ever heard of a knife pistol "being used in the commission of a crime." (See "Exhibits C and D" to Px 10). In addition to the documents Appellant submitted, he also pointed out that a very similar knife pistol, the A. J. Peavey .22 calibre short rim fire, was listed as eligible for importation. By letter of June 7, 1974, Mr. Darr replied without directly addressing the attachments to Appellant's request. The response noted with respect to the inconsistent classification of the Peavey knife pistol that it (the Peavey pistol) was removed from the Act because all of them were identified by serial number and were manufactured prior to 1898. The letter also stated: Because of the great number of these U. S. Small Arms Company knife pistols that were manufactured and the obvious intent of Congress to place stringent controls of such commodities over the years since 1934, we find it impossible to reclassify the U. S. Small Arms Company knife pistol at this time. (Pr. 12). Appellant next asked for certain clarifications in the 8 Darr letter of June 7th. (See Px 13). Darr replied on August 26, 1974. That letter quoted various statutory and regulatory provisions in addition to the statement "[o]ur authority and responsibility for making this decision is contained in Section 925(d)(3) of Title I of the Gun Control Act of 1968." (Px 14). Appellant then retained his present counsel to aid him in his attempts to import the knife gun. Counsel made a formal resubmission of the request and suggested that two issues were involved (Px 15 and 16): "1. Is the item in question 'primarily a collector's item and not likely to be used as a weapon', 26 U.S.C. 5845(a), and "2. Is the weapon being imported 'as a curio or a museum piece', 18 U.S.C. 925(d) (2)." ATF answered this request for reconsideration on December 10, 1974, in a letter written by Atley Peterson, Assistant Director of Technical and Scientific Services. (Px 17). This reply finally addressed the "collector's item" and "not likely to be used as a weapon" language of 26 U.S.C. section5845(a). Although the ATF admitted "the knife pistol currently is rarely, if ever, used as a weapon," Mr. Peterson concluded that the "knife pistol would likely ... be used as a weapon if it were removed from the registration requirement [footnote 4] and other requirements of the National Firearms Act. "The letter also found the item was not primarily a --------------------------------- 4. No application to remove the knife pistol from the "registration" requirements of the Act was made by Appellant. The apparent conclusion that importation of one clearly identifiable unserviceable knife pistol would require such removal is Mr. Peterson's. 9 collector's item: [i]ts design, especially, is not conducive to such a classification." (Px 17). The ATF refused to make a determination whether or not the knife pistol was importable as an unserviceable firearm imported as a curio or museum piece because the Bureau felt the item was a "firearm" under 26 U.S.C. section 5845(a). (Px 17). Suit was then filed in August of 1975. Appellant, the plaintiff below (who had not discharged any firearm since serving as an infantryman in World War II) is a licensed "collector". Defendant Erdmann is the Port Director of the Bureau of Customs at Tulsa, Oklahoma, and had possession of the knife pistol. Defendant Davis was the Director of the ATF, although he has since resigned and been replaced. (Complaint, record vol. 1, p. 6). In March of 1977, the case came on for trial. At that time, representatives of the ATF suggested that appellant seek a conditional importation permit by resubmitting forms 6 and 6A and include an undertaking to make the knife pistol inoperative by flattening the end of the firing pin in an approved manner and by plugging the barrel with "silver solder or some other permanent means." (p. 28). The cause was then continued for the resubmission. Appellant knew that some ATF officials considered the insertion of high quality epoxy resin or solder in a barrel sufficient to render a .22 caliber weapon "unserviceable" within the meaning of 18 U.S.C. 925(d) (2). He had previously imported a World War II .22 10 caliber Nazi belt buckle pistol. With respect to the Nazi belt buckle pistol, Appellant proposed to make it "unserviceable" by placing solder in the breech to prevent the insertion of a cartridge. (Px 1A) In reply, the Assistant Director of Criminal Enforcement of ATF stated in part (Px 1A) : Your recommendation of using solder to block the chamber area is felt to comply with the intent of the law. However, we would prefer you use a high-quality epoxy resin in lieu of the solder since this possesses sufficient bonding strength and perhaps might have a cosmetic factor which would distract less than the use of solder. After Appellant certified that the belt buckle pistol had been rendered unserviceable, ATF deleted the conditional aspects of the importation. Appellant, therefore, proposed to generally follow that procedure with the knife pistol. This resubmission was also denied. The matter was eventually tried without a jury to Magistrate Rizley in September of 1978. His findings concluded that the determinations by ATF were arbitrary and unreasonable. Specifically, he found that the item was primarily a collector's item and not likely to be used as a weapon, and that plugging the barrel with high quality epoxy resin would make the item "unserviceable". (Record vol. 1, p. 126, [FOF 27, 31, 32, COL. 7, 9]). The District Court rejected the Magistrate's findings and conclusions in March of 1979. Appellant thereafter perfected his appeal. 11 SUMMARY OF THE ARGUMENT Appellant here seeks to import a rare knife pistol manufactured over sixty (60) years ago. Examples of this item are maintained as museum pieces in such leading museums as the Smithsonian (Px 37), the Winchester Gun Museum (Px 32), the Texas Memorial Museum (Px 36) and the J. M. Davis Gun Museum, which has the world's largest collection of firearms (Px 35). It is undisputed that identical knife pistols are occasionally and lawfully offered for sale to licensed gun collectors by U. S. dealers and sales values regularly quoted in recognized Trade Journals (See Px 35 p. 2-3). It is also clear that the knife pistol could move in interstate commerce as a "curio or relic" (See 27 CFR 178.11-- definition of curio or relic) and could have been obtained by Appellant at any location in the U.S. and shipped interstate to any other licensee (See 27 CFR 178.50). But since Appellant thought he was getting a bargain by buying from an English dealer rather than an American one, problems arose (tr. p. 99). A whole series of reasons were advanced by the ATF for denial of Appellant's application for importation. Except for the bald conclusion that Appellant's knife pistol -- even if made "unserviceable" -- "would likely be used as a weapon", each reason to deny importation was either admitted to be incorrect by the ATF and/or abandoned by the Government at trial (See tr. 107-110). The proposed factual support for 12 conclusion that the "unserviceable" knife pistol would "likely be used as a weapon" was similarly shown to be factually incorrect. The case further involves a determination by the examiners who considered Appellant's knife pistol that epoxy or silver solder would not make the item "unserviceable" within the meaning of the statute. Exactly the opposite conclusion was reached by the examiner who considered a far more effective and modern weapon. (See Px 1-A). No written criteria have been established to aid the staff in determining whether an item is "likely to be used as a weapon" or is "unserviceable" within the statutory meanings. This failure to establish appropriate guidelines, is itself an arbitrary and capricious neglect of duty, and results--as here--in determinations on the whim of the examiner involved. Appellant therefore contends that the action and non-action of the ATF arises from misinterpretations of the appropriate statutes was without factual support and should be reversed under the standards of review as set forth in the Administrative Procedure Act. 13 ARGUMENT This case presents a classic example of arbitrary and irrational administrative action. The determination by the Bureau of Alcohol, Tobacco & Firearms (ATF) are so unreasonable that they destroy the faith in our system of government regulation. Appellant is a federally licensed collector of unusual antique weapons. He is a law-abiding citizen who is attempting merely to add a rare novelty to his gun collection. However, because he purchased a gun outside the United States and for whatever subjective reasons ATF might have, they have refused to allow him to import the knife pistol. The item in question is a small .22 caliber knife gun. (Px 19) It was manufactured in 1917 by the U. S. Small Arms Company, a company which had a known commercial existence of only that year. (Px 11). The knife is constructed with the capability of inserting and firing a .22 caliber shell. ATF originally found the knife gun was not primarily a collector's item, was likely to be used as a weapon, and could not be placed in "unserviceable" condition. That is, the item is a "firearm" under the National Firearms Act under the heading "any other weapon." The Magistrate, after hearing the evidence, ruled such a determination was arbitrary and unreasonable and without sufficient factual support. (Record Vol. I, p. 126). The District Court overruled the Magistrate and upheld the ATF determination. (Record Vol. I, p. 141). 14 Scope of Review The scope of judicial review of administrative action under the Administrative Procedure Act is limited. The basic statutory limits are found in 5 U.S.C. section 706(2). That provision states in part that the reviewing court shall: "(2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." This subsection has been interpreted by the Supreme Court in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), wherein the court ruled: "[t]o make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 416. This construction is also the law in this Circuit. Sabin v. Butz, 515 F.2d 1061, 1067 (10th Cir. 1975), American Petroleum Institute v. E. P. A., 540 F.2d 1023, 1028 (10th Cir. 1976). Although "the ultimate standard of review is a narrow one," Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416, courts need not defer to administrative interpretation of a statute where that interpretation is inconsistent with the obvious congressional intent. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 381 (1969), United States v. Cartwright, 411 U.S. 546, 550 (1973). Courts "are not obliged to stand aside and rubberstamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Volkswagenwerk v. F.M.C., 390 U.S. 261, 272 (1968). 15 Appellant respectfully submits that the District Court merely "rubber stamped" the arbitrary findings of ATF and that as such, the judgment for Appellees is in error. The scope of appellate review is also limited. However, unusual circumstances are present in the case sub judice. The district judge to whom this case was originally assigned and who was familiar with the three and one-half years of proceedings, died unexpectedly before ruling on objections to the Magistrate's findings. In view of that fact and the fact that the Magistrate presided at the trial and heard the witnesses and their testimony, his findings should be accorded special weight by the district judge and, therefore, merit a somewhat stricter scrutiny by this Court. Nevertheless, the trial court's findings are presumptively correct and "should not be set aside unless clearly erroneous." Rule 52, Fed.R.Civ.Proc., 28 U.S.C., Transportation Insurance Company v. Hamilton, 316 F.2d 294, 296 (10th Cir. 1963). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948), B. H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1260 (5th Cir. 1971). Absent adequate evidentiary support, the finding is clearly erroneous. See, e.g., United States ex rel. Paxos v. Rundle, 491 F.2d 447, 452 (3rd Cir. 1974), Federal Security In- 16 surance Company v. Smith, 259 F.2d 294 (10th Cir. 1958). Conclusions of law, on the other hand, are reviewable without limitation. See, e.g., United States v. Wholesale Oil Co., 154 F.2d 745, 747 (10th Cir. 1946), Pearson v. Western Elec. Co., Etc., 542 F.2d 1150, 1151 (10th Cir. 1976). Those issues involving mixed questions of fact and law should also be freely reviewable. See, Stafos v. Jarvis, 477 F.2d 369, 372 (10th Cir. 1973), cert. den. 414 U. S. 944 (1973). Accordingly, Appellant asks this Court to review the judgment, set it aside as being clearly erroneous and incorrect, and order that judgment be entered for Appellant. Statutes Involved There are two statutes relevant to this case. They are the National Firearms Act. 26 U.S.C. section 5801, et seq., 82 Stat. 1230, and the Gun Control Act of 1968, 18 U.S.C. section 921, et seq., 82 Stat. 1213. Although there is virtually no law on importation of firearms under these provisions, it would appear that each statute has separate and distinct importation requirements. Gun Control Act of 1968, Pub. L. No. 90-618, section 104, 82 Stat. 1213, Brennan v. United States, 435 F.Supp. 451, 453 (E.D. Mich. 1977). The National Firearms Act generally prohibits importation of items defined as "firearms." See, 26 U.S.C. section 5844. Appellant does not contend that he wishes to import the knife gun for any of the three exceptions set forth in section 5844. He does, however, con- 17 tend that the knife gun is excluded from these requirements because it is not a "firearm" as defined by the Act. This is the first major issue to be addressed. I. IS PLAINTIFF'S EXHIBIT 19 A "FIREARM" UNDER 26 U.S.C. SECTION 5845 The relevant language defining "firearm" is found in subsection (a) of section 5845: "For the purposes of this chapter [t]he term 'firearm' means... (5) any other weapon, as defined in subsection (e) ...." 26 U.S.C. section 5845(a). "Any other weapon" includes "any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive...." 26 U.S.C. section 5845(e). Appellees contend the knife pistol is an "any other weapon" as defined in subsection (e) and, therefore, cannot be imported because Appellant cannot satisfy the importation requirements of section 5844. (Px 2, 6, 12). Appellant contends the knife gun should not be treated as a "firearm" because of the specific language limiting the scope of the term "firearm" and allowing certain other defined items to be excluded from coverage. In 26 U.S.C. section 5845(a), the last sentence reads: "[t]he term 'firearm' shall not include an antique firearm or any device (other than a machinegun or destructive device) which although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon." This is the crucial language for deciding whether the knife pistol is a "firearm". 18 The implementing regulations of the National Firearms Act are found in Part 179 of Title 27, C.F.R. Specifically, section 179.11 defines "firearm" in language nearly identical to the statute and then contains the exact verbatim exclusion contained in statutory definition. In addition, section 179.25 provides: The Director shall determine in accordance with section 5845(a), I.R.C., whether a firearm or device, which although originally designed as a weapon, is by reason of the date of its manufacture, value, design, and other characteristics primarily a collector's item and is not likely to be used as a weapon. A person who desires to obtain a determination under that provision of law shall follow the procedures prescribed in Section 179.24 relating to destructive device determinations, and shall include information as to date of manufacture, value, design and other characteristics which would sustain a finding that the firearm or device is primarily a collector's item and is not likely to be used as a weapon. The regulations, obviously, provide little guidance for such a determination. The first arbitrary finding by ATF was that the knife pistol was a "firearm" under the National Firearms Act. (Pr. 2, 6, 9, 14, and 17). The court below upheld that determination without discussion. (R. Vol. I, p. 141 at page 14 of the opinion). This determination is patently arbitrary and irrational. Appellant contends that although the knife pistol comes under the "any other weapon" definition, it is nevertheless excluded by the last sentence of 5845(a). To 19 be excluded one must establish that the firearm is (a) "primarily a collector's item," and (b) "not likely to be used as a weapon." ATF contends the knife pistol is not primarily a collector's item. The statute states such a determination should be made by reviewing the date of manufacture, the value, design, and other characteristics. A. Is The Knife Pistol Primarily A Collector's Item The knife pistol was made in 1917, over sixty years ago and was worth almost $200.00 in 1973. (Px 11 and tr. p. 11). It has a novel design in that it is a knife which can also discharge a single .22 caliber shot. Attachments to Plaintiff's Exhibit 10 clearly illustrate the item is rare and is presently in the collection of several large museums: Sy K. Vogt -- Curator, J. M. Davis Gun Museum, Claremore, Oklahoma -- owned by the state and one of the largest gun museums in the world. "The pistol is rare. It receives its monitary [sic] value because it is rare." T. E. Hall--Curator, Winchester Gun Museum, New Haven, Connecticut. "Yes, we have a knife pistol, like the illustration that you sent, in our collection." Norm Flayderman-- Professional dealer in antique weapons for twenty years. "[T]his small oddity combination weapon may justly be classified as a 'Curio and Collector's Item' in view of its novel design, its very short and limited period of manufacture and most certainly its rarity and low incidence in 20 which it ever appears available on a collector's market for sale." John Battaglia -- Tulsa gun dealer. "I have seen them for sale, but very rarely, by dealers who cater to collectors. . . . "Through my years of experience, in my opinion the pistol, because of its odd design and date of manufacture, is obviously a collector's item." Terence Bennett- Lt., Crime Analysis Division, New York City Police Department. "A search of our records indicates that we have never experienced the type of weapon, described in your brochure, as being used in the commission of a crime within the City of New York." Quintin Vilianueva -- Lt., Public Affairs Division of Los Angeles Police Department. "We do not have statistics available relating to crimes in which an antique knife pistol was used." Incredibly, ATF had no testimony or documentary evidence to rebut this clear and convincing evidence that the knife pistol was primarily a collector's item. Instead, in Plaintiff's Exhibit 6, ATF said "[W]e possess information that knife pistols of the type you wish to import were commercially available as late as 1952. We also have documented cases where they were used as weapons." Yet in Plaintiff's Exhibit 27, ATF finally admitted that was false: "[t]he statement in Mr. Darr's letter of January 1, 1974, [Plaintiff's Ex- 21 hibit G],'knife-pistols of the type you wish to import were commercially available as late as 1952' is an error; it probably should have read '1923.' " The exhibit continues: "[w]e have no documented knowledge of a knife-pistol used as a weapon." (Px 27). Plaintiff's Exhibit 17 is an ATF reply to the request for reconsideration: "[W]e do not consider this firearm to be primarily a collector's item by reason of 'the date of its manufacture, value, design, and other characteristics.' Its design, especially, is not conducive to such a classification. It is a firearm which can be easily duplicated and counterfeited." The design, however, is the most novel and unusual characteristic of the item. Attorneys for Appellees eventually stipulated the same at the trial (tr. p. 26): Mr. Carrasquillo: "If the Court please, in order to save time, we do not contest whether it's a curio -- as a matter of fact, we will stipulate that it is a curio. Mr. Travis: "Well they won't stipulate it's a collector's item, at least that is what they've filed. Do you now say it's a collector's item, primarily a collector's item? Mr. Carrasquillo: "So stipulate, Your Honor." (emphasis added) Then Mr. Williams, Regional ATF counsel stated at page 110: ". .. there were two reasons on the decision. To remove it, it has got to be primarily a collec- 22 tor's item, which we agree this one is valuable, it is a curio- relic." These admissions, in addition to the various letters submitted by Appellant, and the stipulations of testimony by various curators, including the curator of the Smithsonian (Px 32, 33, 34, 35, 36 and 37), establish that the knife pistol is primarily a collector's item; overwhelmingly illustrate that the knife pistol's design is unique, unusual and novel; that it is valuable, and that it is over half a century old. Accordingly, Appellant submits that the ATF determination that this knife pistol was not primarily a collector's item is arbitrary, unreasonable, and not supported by any credible or substantial evidence. B. Is The Knife Pistol Likely To Be Used As A Weapon The second half of the test under the National Firearms Act exclusion is whether the item is "likely to be used as a weapon." Once again, submissions by the Appellant and admissions by the Appellees can lead to only one rational conclusion: Neither this knife pistol nor any knife pistol has been used as a weapon in the past nor is it likely to be so used in the future. The letters attached to Plaintiff's Exhibit 10 are from high ranking police officer's in this country's two largest metropolitan areas. Neither officer had ever heard of any such type of firearm as a knife pistol being used in the commission of a crime. In addition, Testimony by Robert Scroggie, Senior Firearms Enforcement officer for ATF, interestingly 23 reads (tr. P 83) (emphasis added): Q. "Okay, was it the conclusion of this group of persons and yourself that this knife pistol would be likely to be used as a weapon ? A. "We felt, as did chief counsel at the time, that it was as likely to be used as a weapon as not. (tr. p. 123: Q. "Are you aware of any instance where a knife pistol was used as a weapon? A. "Not specific instances, no Sir, other than the one paper, or article in the Washington paper where a man had shot himself with one. [See Px 29]. . . . Q. "Do you have any documents indicating that there has ever been a U. S. small arms knife pistol used as a weapon against another individual? A. "I don't have any documents, no sir." Defendant's second witness, Robert Miller, special agent for enforcement for ATF in the Oklahoma City district, also affirmed this point (tr. p. 137-138): Q. "Have you ever heard of a single instance of a knife pistol ever being used as a weapon? A. "No, sir, not personally." Plaintiff's Exhibit 17 is a letter from Atley Peterson, ATF Assistant Director of Technical and Scientific Services. He concludes on Page 3: "We do not dispute your contention that the knife pistol currently is rarely if ever, used as a weapon. However, it is our considered opinion that the knife pistol would likely be used as a weapon if it were 24 removed from the registration requirement and other requirements of the National Firearms Act." This letter seemingly indicates ATF wasn't worried about Plaintiff's Exhibit 19 per se, but the supposed flood of other knife pistols which would appear and be used as weapons. For example, testimony by defense witness Robert Scroggie reads (tr. p. 93): Q. "In your expert opinion, what would be the use of such an item or device, what would be its purpose? A. "It is a weapon. Q. "Okay. A. "It is a -- well, enough of a collector's item I could see well where a collector would want one or want to possess one. Q. "But it was manufactured as a weapon? A. "There is one in the Smithsonian. We have three in our firearms reference collection, but the thing was devised as a weapon and still is a weapon." This is a typical "bootstrap" argument used by Appellees. Appellant admits that 99% of all antique guns and collector's items were designed as weapons. The statute itself indicates almost every gun was designed as a weapon: "which although designed as a weapon," is "by reason of the date of its manufacture ... primarily a collector's item and not likely to be used as a weapon." 26 U.S.C. section 5845(a). Therefore, the fact that Plaintiff's Exhibit 19 or any other collector's item "was designed as a weapon" is irrelevant if the other characteristics are satisfied. The record in this case so convincingly establishes that this knife pistol is pri- 25 marily a collector's item and is not likely to be used as ,weapon, that the opposite determination by ATF is unreasonable, arbitrary, and irrational and not based on relevant factors. Citizens to Preserve Overton Park v. Volpe, Id. To illustrate how arbitrary ATF's conclusion is, Appellant would refer this Court to plaintiff's Exhibit 12. In that ATF response to an inquiry by Appellant, Mr. Darr discusses a virtually identical item which ATF has ruled is not a National Firearms Act "firearm." It is the A. J. Peavey .22 caliber short rim fire knife pistol (Px 21). It fires the same ammunition (.22 caliber) that Plaintiff's Exhibit 19 does. The design is the same, the characteristics are the same. Yet, it is classified as a collector's item and not an "any other weapon." It is difficult to understand how ATF can distinguish them and say the U. S small arms pistol is more likely to be used as a weapon. Apparently, ATF is bothered by the fact that U. S. small arms pistols did not have serial numbers. This, however, is not a requirement for importation of a non "firearm" under the Act. Appellant submits the Act is not open to ATF's construction of the Act, and their contention that if they "remove a firearm, [they] remove that type of firearm. (tr., p. 109). The section of the Act dealing with serial numbers is section 5842. It states in subsection (a): "[e]ach manufacturer and importer and anyone making a firearm shall identify each firearm, other than a destructive device, manufactured, imported or made by a serial number which may not be readily removed .. ." Sub- 26 section (b) reads in part: "[a]ny person who possesses a firearm, other than destructive device, which does not bear the serial number and other information required by subsection (a) of this section shall identify the firearm with a serial number assigned by the Secretary...." (emphasis added). It seems only logical that if an item is not a "firearm" within the meaning of the Act [26 U.S.C. section 5845(a)], then the provisions relating to serial numbers do not apply. Even if they do, arguendo, the subsection provides for the assignment of a serial number. In connection with this thought, it is interesting to read the testimony of Robert Scroggie, ATF expert witness (tr., p. 100): Q. "And there is authority with the secretary to issue serial numbers to weapons that don't have them; isn't that true? A. "That's correct. Q. "As a matter of fact, there is a regulation which would require such a thing on every imported weapon, or at least been proposed? A. "Yes, sir, the registration numbers are required, and there is a method for a person doing this. If he makes a firearm legally, makes application to make a firearm, he can assign a serial number to it. Q. "And if he wants to import one he can request and be assigned a serial number, can he not? A. "The problem about importation, sir, as it says, there is only three different reasons (sic), three provisions under which a National Firearms Act weapon can be imported." 27 We cannot understand this circuitous analysis. In Plaintiff's Exhibit 12 (a denial of importation by ATF), ATF says that Exhibit 19, the knife pistol in issue, is a firearm, and that the Peavey knife pistol is not a firearm because the Peavey has a serial number. Now the witness says "Yes, we can give Exhibit 19 a serial number, but it is still a firearm because there are only three provisions under which a National Firearm Act weapon can be imported." What can be more arbitrary or irrational? See also, pages 89 and 90 of the transcript where Appellees' counsel questioned the witness about whether there are serial numbers on Plaintiff's Exhibits 23 and 24, two small concealable weapons which are not classified as firearms. Then we get to another smoke screen. Mr. Williams, counsel for Appellees, stated at page 108 of the transcript, "I think we indicated in all our writing to Mr. Davis that it was likely to be used as a weapon because of its concealability and the fact that it does use ammunition that would be commercially available." Again, neither factor is set forth in the statute nor the implementing regulations and, incredibly, the Peavey knife pistol is every bit as concealable and fires identical ammunition which is commercially available today. See Px 21. The Magistrate, also apparently unable to understand this "reasoning", next asked Mr. Williams (transcript p. 109): The Court: "Wasn't he just asking that this particular single item be removed? 28 Mr. Williams: "But we had no way to--we have no way to identify it unless we said the one owned by Mr. Davis. And we don't, you know, when we remove a firearm, we remove that type of firearm. The Court: "Well, can't you give this a particular serial number and remove it? Mr. Williams: Well, we could, except it's still likely to be used as a weapon. There were two reasons on the decision. To remove it, it has got to be primarily a collector's item, which we agree this one is valuable, it is a curio-relic. But then the second problem to the test is whether it is likely to be used as weapon and we determined it just wouldn't fall in because it was likely to be used as a weapon. (emphasis added) The Court: "You are talking about this particular gun? Mr. Williams: "That particular gun, right." Appellees' counsel cannot seriously contend Appellant is likely to use Exhibit 19 as a weapon. Uncontradicted testimony at pages 8 and 9 of the transcript illustrate he is a highly respected businessman who is a federally licensed collector and who has not fired a gun in over 30 years. The bare fact remains, there is not one shred of evidence to support the assertion that this knife pistol, Plaintiff's Exhibit 19, is any more likely to be used as a weapon than the Peavey or any other small concealable weapon. Appellant's Exhibits 29 21 through 26 are photographs of small concealable weapons, most of which fire "readily available" ammunition (for example, .22 caliber). (tr. p. 34-38). Each is a curio. Most were made after Plaintiff's Exhibit 19. Each is not a firearm under the National Firearms Act. Yet, Appellees' vacillate from corner to corner and side to side as to why the Appellant's knife pistol is a firearm and these are not. First it wasn't a collector's item. Now it is, or at least in part. And next it had no serial number, although one could be assigned. Then, it is a firearm because of its concealability and the fact that it uses commercially available ammunition, although Exhibits 21 through 26 are every bit as concealable and most use the same ammunition. The sum--totally arbitrary and capricious determinations made on matter other than the plain facts and all logical inferences therefrom. The ATF determination that Exhibit 19 is a National Firearms Act firearm is not based on the relevant factors of design, date of manufacture, value, and other characteristics which make it attractive to collectors rather than criminals. Citizens to Preserve Overton Park v. Volpe, Id., American Petroleum institute v. E.P.A., 540 F.2d at 1028. As noted by this Court in American Petroleum Institute, "[p]erhaps agency action which is not based on substantial evidence is arbitrary and capricious ...." Id. Not only did ATF act unreasonably, they did so on irrelevant factors. Apparently, the major reason for their decision was the importation provision of 95844 (tr. p. 99): Q. (Mr. Travis) "So if Mr. Davis had bought one 30 that was registered in Texas he wouldn't have any trouble at all bringing it home to Tulsa, but having bought one in England is where he got his problems? A. (Mr. Scroggie) "Yes, sir, the importation problem is the problem." ATF is placing the cart before the ox. Before importation requirements ever apply the Bureau most rationally conclude the item is a firearm. This they did not do. Citizens to Preserve Overton Park v. Volpe, Id. Appellant, therefore, requested this Court to find that the district court was clearly erroneous in upholding the various determinations of ATF that Plaintiff's Exhibit 19 is a National Firearms Act "firearm." II. Can The Knife Pistol Be Placed In Unserviceable Condition And Imported As A Curio The second major issue in this litigation is whether the district court was clearly erroneous in upholding the ATF determination that the knife pistol (assuming it was not a National Firearms Act firearm) could not be imported under 18 U.S.C. Sec. 925(d) (2). The statute relevant to this issue is the Gun Control Act of 1968, 18 U.S.C. section 921, et seq. That Act states in part: "Except as provided in section 925(d) of this chapter, it shall be unlawful for any person knowingly import or bring into the United States or any possession thereof any firearm or ammunition." 18 U.S.C. section 922(1). Section 925(d) may authorize importation if the person wishing to import the firearm [as defined in section 921(a)(3)] establishes that the firearm "(1) is being imported or brought in for scientific research purposes, or is for use in connection with competition or training pursuant to chapter 401: of title 10; "(2) is an unserviceable firearm, other than a machinegun, as defined in section 5845(b) of the Internal Revenue Code of 1954 (not readily restorable to firing condition), imported or brought in as a curio or museum piece; "(3) is of a type that does not fall within the definition of a firearm as defined in section 5845(a) of the Internal Revenue Code of 1954 and is generally recognized as particularly suitable for or readily adaptable to sporting purposes, excluding surplus military firearms; or "(4) was previously taken out of the United States or a possession by the person who is bringing in the firearm or ammunition. "The Secretary may permit the conditional importation or bringing in of a firearm or ammunition for examination and testing in connection with the making of a determination as to whether the importation or bringing in of such firearm or ammunition will be allowed under this subsection." 18 U.S.C. Sec. 925(d). The implementing regulations of this Act are found in Part 178 of Title 27, C.F.R. Specifically, importation requirements are set forth in Sec. 178.112. The 32 application requires, inter alia, that if the item is to be imported under 18 U.S.C. section 925(d)(2), the applicant must describe how it was rendered unserviceable and explain why it is a curio or museum piece. Section 178.116 provides for conditional importation to determine whether an item meets the requirements of section 925(d). Curios or relics are defined in Sec. 178.11 as: "[f]irearms or ammunition which are of special interest to collectors by reason of some quality other than is ordinarily associated with firearms intended for sporting use or as offensive or defensive weapons. To be recognized as curios or relics, firearms and ammunition must fall within one of the following categories: "(a) [f]irearms and ammunition which were manufactured at least 50 years prior to the current date, but not including replicas thereof; "(b) [f]irearms and ammunition which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relies of museum interest; and "(c) [a]ny other firearms or ammunition which may derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period or event. Proof of qualification of a particular firearm or item of ammunition under this category may be established by evidence of present value and evidence that like firearms or ammunition are not available except as 33 collector's items or that the value of like firearms or ammunition available in ordinary commercial channels is substantially less." The congressional intent in enacting the Gun Control Act of 1968 should be also noted since it provided ATF with a purpose on which to base its importation regulations and findings. That purpose states in part: "[i]t is not the purpose ... to place any undue or unnecessary Federal restriction or burdens on law-abiding citizens with respect to the acquisition . . . or use of firearms appropriate to . . . any lawful activity, and this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes. ..." Gun Control Act of 1968, Pub. L. No. 90-618 section 101, 82 Stat. 1213. A. Can The Knife Pistol Be Placed In Unserviceable Condition Appellant has offered to make Exhibit 19 "unserviceable." (Px 1, 16 and 28). Plaintiff's Exhibit 1 was his letter accompanying the initial importation application. In that letter, Appellant offered to treat the knife pistol the same way he had treated importation problems with a Nazi belt buckle pistol in 1972. Plaintiffs Exhibit 16 again reiterates that offer. Finally, Plaintiff's Exhibit 28 proposed to "flatten the end of the firing pin in an approved manner as to make the firing pin inoperative" and to "plug the barrel by silver solder or some other permanent means." (Emphasis supplied). 34 Initially, Appellees apparently did not address the issues of importation under 925(d)(2), but instead relied on their determination that the knife pistol was a National Firearms Act firearm (Px 2, 6, 12, 14, and 17). for example, in plaintiff's Exhibit 17, ATF stated: "[w]e find it unnecessary to determine whether the U. S. Arms knife pistol, if made unserviceable as described above, would meet the criteria of 18 U.S.C. section 925(d)(2)." The Bureau did, however, later rule with respect to Appellant's definite offer to plug the barrel by silver solder or some other means (Px 28). In reply to that request Appellee Rex Davis stated (Px 28): Your request was considered by the Bureau's Firearm Classification Panel. This panel determined that the proposed alteration would not remove the knife-pistol from the definition of 'any other weapon' as such an altered knife- pistol could be readily restored to firing condition as a result of its design. In particular, our firearms experts determined that the silver solder could be easily removed from the barrel and the firing pin replaced or fixed in a short interval of time. This refusal and the continued refusal by ATF to approve silver solder or epoxy resin as a proper mode of rendering the knife pistol unserviceable is arbitrary and unreasonable. In 1972 Appellant was attempting to conditionally import a Nazi belt buckle pistol as an unserviceable curio under Section 925(d)(2). With respect to that item ATF's Assistant Director of Criminal Enforcement stated (Px 1A) (emphasis added): 35 Your recommendation of using solder to block the chamber area is felt to comply with the intent of the law. However, we would prefer you use a high quality epoxy resin in lieu of the solder since this possesses sufficient bonding strength and perhaps might have cosmetic factor which would detract less than the use of the solder. After receiving this advice, Appellant followed the instructions contained therewith and was later allowed to permanently import the belt buckle pistol. Now that Appellant wants to import another item, epoxy resin or silver solder apparently "do not comply with the intent of the law." Nothing could be more arbitrary. Adopting different standards for similar situations is totally arbitrary. Interstate Contract Carrier Corp. v. United States, 389 F.Supp. 1159 (D. Utah 1974), Keen Transport, Inc. v. United States, 446 F.Supp.5, 8 (N.D.Ohio 1976). Plaintiff's expert, J. T. Amin, testified as follows on the issue of plugging the barrel (tr. p. 51) (emphasis added: Q. Mr. Amin, assume that a plug was placed nearly the length of that barrel of Exhibit 19 and contained a very high quality silver solder. What would be--and it is allowed to set and harden and all, what would be required to remove the silver solder? A. "To remove the silver solder you would have to heat that silver soldier at least 1350 degrees Fahrenheit." Mr. Amin was then cross-examined by Mr. Williams. (tr. p. 59): 36 Q. "All right. But could you estimate how long it will take to drill out? A. "It will take an expert machinist maybe 10 hours, 15 hours. Q. "You think that long? A. "Yes. Because he won't be able to take all the silver solder out if he wants to keep the hole of the same dimension." Q. "Okay. Let me ask you also concerning the epoxy, can you melt out epoxy from this barrel? A. "No, you can't melt it. Q. "Can't melt it? A. "No. Q. "The introduction of methyl ethyl ketone would not remove it? A. "No. It will take long, long time. You might have to soak it for three months, four months, I don't know how long." In contrast, Appellees' expert, Robert Scroggie, testified as follows on direct examination (tr. p. 86) (emphasis added): Q. "How long would this process [drilling the solder out] take? A. "Ten or 15 minutes. Q. "Have you ever drilled out silver solder from a barrel using a drill press? A. "I have not drilled out silver solder from a barrel, but I have drilled out silver solder. It's no different than drilling any other metal using the proper drill and proper speeds on 37 the drill press." . . . . Q. "In your expert opinion, could the knife pistol be restored after epoxy was put into the barrel? A. "Yes, sir. Q. "And in what manner could this firearm be restored ? A. "By using a propane torch, sir." Q. "And have you ever done this with a pistol of any manner? A. "Not with a pistol, but i have removed parts from weapons that have been epoxied on by the use of a propane torch. You need very little heat, not enough heat to discolor normal rust blued weapon. Q. "How long would it take, in your expert opinion, to remove epoxy from a barrel of a knife pistol such as this? A. "Not more than 30 minutes. It seems very arbitrary that a man who has never used a propane torch to remove epoxy from a pistol barrel and who has never drilled solder from a barrel could testify as to whether such could be done and to how long it would take, assuming it could be done. It is even more fantastic in view of the fact that it was this very expert who suggested silver soldier to Appellant as a method of making the knife gun unserviceable. (tr. pgs. 42, 85). Appellant's second expert witness was Kenneth Wallingford. For 22 years he had served as the chief tooling engineer of the world's largest off-highway 38 truck company. His testimony is very revealing (tr. p. 142): Q. "Assume that Exhibit 19 is an item in which a .22 caliber bullet may be fired through the part I have just raised at the front of it. A. "Uh huh. Q. "And assume that barrel were filled with silver solder. A. "In the first place - - Q. "Excuse me, assume that for a minute. What is [sic] the properties of silver solder as it meets other metals such as low carbon steel? A. "Well, there are different silver solders. The temperature runs from 1150 to about 1300. It depends on how much nickel and silver and all that is in it. So it would have to get that -- to get that hot, you would really destroy the structure of the steel, to begin with." . . . . Q. All right, if you wanted to remove it, it was filled with silver solder and you wanted to remove it, what would you have to do? A. "Well, to me it would be almost impossible. It would have to be chucked up in a lathe." . . . . Q. "Why couldn't I just take me a drill press and set it up in a vise and run it right through? A. "Well, there is no way. A drill will run off. I mean it just won't go straight." Wallingford was then cross-examined by Mr. Carrasquillo (tr. p. 146): Q. "But isn't it true that it depends on the type 39 of silver solder that you use as to whether or not you can take it out? A. "I don't know of any silver solder, to my knowledge, and we use it all the time, less than about 1125 temperature. Q. "Have you ever tried to take silver solder out of a piece of steel similar to that? A. "Yes. Q. "Have you ever tried drilling it out? A. "Yes. Q. "Did you get good results? A. "No. . . ." Initially, counsel for Appellees tried to object on grounds of relevancy to testimony on epoxy resin as a sufficient plug in Exhibit 19 (tr. p. 55). When confronted with expert testimony supporting proposed use of that material, Appellees next tried to discredit epoxy as a sufficient material. Plaintiff's Exhibit 1A convincingly indicates that the material was previously approved by the Bureau and that a subsequent reversal of that position absent a valid reason is patently arbitrary and irrational. In addition, Appellees' only expert, Robert Scroggie, admitted he had never tried to remove epoxy or silver solder from a barrel. It is incredible that he could, therefore, say with certainty that such could be done and the knife pistol still function, much less how long it would take. Appellant therefore submits that the ATF determination that this knife pistol, if plugged by solder or epoxy, would be readily restorable to firing condition within the intent of Congress and the meaning of 18 U.S.C. section 925(d)(2), was arbitrary and unreasonable since 40 (a) their expert recommended silver solder as a plug and then testified it would be insufficient, even though he had never tried to remove it from a pistol barrel like this one, and (b) since epoxy resin had been previously suggested and approved by ATF. (Px 1A). B. Is The Knife Pistol A Curio The second prong of the importation test under 18 U.S.C. section925(d) is whether the firearm is imported as a "curio" or "museum piece." Although this question earlier appeared to be in issue, stipulations at trial have apparently mooted that problem. See, pp. 26, 27, 32, and 110 of the transcript. Nevertheless, if there is any doubt as to whether Exhibit 19 is a curio or museum piece, Plaintiff's Exhibit 32 through 37 conclusively establish that question. In fact, Exhibit 37 indicates a U. S. small arms knife pistol is on display at the Smithsonian. Curios are defined in the regulation as firearms of special interest and which are either over 50 years old, certified as a curio by a curator of a federal or state museum, or novel, rare or bizarre. 27 C.F.R. section 178.11. In this case, the knife pistol is almost 60 years old, is certified by several museum curators as a curio, and is definitely of novel and unique design. Accordingly, Appellant submits that Plaintiff's Exhibit 19 is a curio under the Gun Control Act of 1968, could easily be place in "unserviceable condition," and the ATF determination to the contrary is clearly unreasonable and arbitrary in view of the exhibits and 41 testimony on silver solder and epoxy resin. If the Court finds some "basis" for ATF's determination, Appellant requests this Court to order conditional importation under 18 U.S.C. section 925(d) and 27 C.F.R. section 178.116 for an ATF determination as to how to render the knife pistol "unserviceable." Conclusion Since the facts and the law in this case, in view of the obvious Congressional intent, lead to only one result, Appellant accordingly requests that this Court reverse the decision and judgment of the District Court with appropriate instructions to that Court to order Appellee Rex D. Davis (his successor under Rule 25(d) Fed. R. Civ. Proc.) to issue a permit to import the knife gun under 18 U.S.C. section 925(d)(2) and that Appellee Ernst Erdmann thereby release the gun into the custody of Appellant. Respectfully, Ralph S. Travis Ralph H. Duggins, III Cantey, Hanger, Gooch, Munn & Collins 1800 First National Bank Building Fort Worth, Texas 76102 817/335-9595 Attorneys for Appellant June 20, 1979 42 CERTIFICATE OF SERVICE I, Ralph H. Duggins, III, one of the attorneys of record for Kenneth W. Davis, hereby certify that I served the foregoing brief upon Defendants-Appellees by placing two copies thereof addressed to their counsel of record in the United States Mail on this 20th day of June, 1979. Ralph H. Duggins, III