DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
WASHINGTON, D.C. 20226

APR 30 1991

CC-39,594 FE:CLK

MEMORANDUM TO: Chief, Firearms Division

FROM: Chief, National Firearms Act Branch

SUBJECT: Accuracy of the National Firearms Registration and Transfer Record

The issue of the accuracy of the National Firearms Registration and Transfer Records (NFRTR) was recently raised in the case of United States v. Neil Richard Foster, in the United States District Court for the District of Alaska. The Foster case and the accuracy of the NFRTR were mentioned in the local newspapers. (An example is attached for your information.) Additionally, the Nashville Post of Duty has advised us that a Federal firearms licensee produced a copy of the newspaper article on the Foster case during the execution of a search warrant, and indicated that the article claimed that the National Firearms Act (NFA) records were a "mess."

The purpose of this memorandum is to provide the Office of Law Enforcement with information for use in meeting future challenges to the NFRTR in ATF prosecutions. You may wish to provide this information to law enforcement personnel, who, in turn, would alert prosecuting attorneys to this possible issue. In addition, personnel from this office are available to testify to the accuracy of the NFRTR should the issue arise.

The issue of the accuracy of the NFRTR was initially raised in United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565 (D.D.C. 1980), which involved a civil forfeiture proceeding on NFA firearms that were seized from the National Rifle Association (NRA) museum. The forfeiture was based solely on the proposition that the Government had no record that the seized firearms were registered in accordance with the NFA. The NRA-had successfully sought, during discovery, documents relating to a 1975 internal study of the NFRTR, which cited a number of problems and inaccuracies in the record system. These documents formed

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Chief, Firearms Division

the basis of the NRA's argument that the Government could not meet its burden in proving that the seized firearms were not properly registered, due to the inaccuracies cited in the record system.

The court in Seven Miscellaneous Firearms determined that the items seized were not firearms or destructive devices within the meaning of the NFA and, therefore, the firearms were not required to be registered. Although the court did not rule on the adequacy of the NFRTR, in making the determination that the seized items were not firearms the court noted that "considerable evidence was received that the Bureau's officials have for many years recognized the inadequacy and incompleteness of the Bureau's records. The Court is not required to pass judgment on this, however, because the Government has failed to show that these seven items are firearms." 503 F. Supp. at 578 (D.D.C. 1980). This excerpt from the decision in Seven Miscellaneous Firearms received widespread distribution by the NRA to various public defenders' offices and to defense attorneys associated with the NRA.

Our position at the time of Seven Miscellaneous Firearms was that many of the criticisms discussed in the internal study were corrected by the time of the trial. The complete evidence adduced in the case revealed that the opinions, speculations, and conclusions found in the documents, when put in proper context and perspective, were oversights which affected neither the integrity of the records system nor the ability of ATF to accurately certify to the registration status of a firearm under the NFA.

In addition, since Seven Miscellaneous Firearms, the then existing manual NFRTR system has been replaced by an automated NFRTR system. As a part of the implementation of the automated retrieval system, we have verified the accuracy of the information in the NFRTR.

Criticism of the NFRTR surfaced again in United States v. Stout, 667 F.2d 1347 (11th Cir. 1982). The defendants in this case sought to introduce two exhibits consisting of six internal memoranda of ATF. The five oldest memoranda, dated between May 1975 and April 1976, discussed the problems with the "Diebold" mechanical filing system then used with the NFRTR. The sixth memoranda dated August 20, 1979, restated the problems with the "Diebold" system and explained how those conditions had been corrected by manual filing. The defense also sought to introduce an authenticated copy of

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Chief, Firearms Division

1979 Senate oversight hearings on ATF, which contained the 1975 and 1976 memoranda but failed to include the 1979 evaluation of the firearms registry system. The court refused to allow either of these exhibits to be considered by the jury. The defendants, on appeal, argued that this ruling constituted reversible error.

The Eleventh Circuit held that the trial court's refusal to admit the exhibits was not an abuse of discretion. The 1975 and 1976 internal memoranda were of dubious probative value. The conditions discussed in the memoranda had existed 5 to 6 years before trial and had largely been corrected. Additionally, the exhibits contained irrelevant material and were inadmissible hearsay.

If any further information is necessary, please contact Gary Schaible at (FTS) 343-0332.


[signed]

Wayne Miller