NOTE: This testimony was submitted to the House Subcommittee on Treasury, Postal Service and General Government Appropriations on April 3, 1998. It should be available in printed form from the U.S. Government Printing Office in approximately July 1998. ----------------------------------------------------------------------------------------------------------- Page 1 Statement on Proposed Removal of the National Firearms Registration and Transfer Record: from the Custody of the Bureau of Alcohol, Tobacco and Firearms and its Proposed Relocation to the Department of Justice by Eric M. Larson Presented before the Subcommittee on Treasury, Postal Service and General Government of the Committee on Appropriations House of Representatives B-307 Rayburn House Office Building Washington, D.C. April 3, 1998 Eric M. Larson is a Contributing Editor to the Official R. L. Wilson Price Guide to Gun Collecting, the Blue Book of Gun Values, the Standard Catalog of Firearms, the Official Price Guide to Antique and Modern Firearms, and has been a Life Member of the National Rifle Association of America since 1968. His research has been published in The Gun Report, CADA Gun Journal, Machine Gun News, Guns Illustrated, Small Arms Review, The Gun Journal, and he is author of Variations of the Smooth Bore H&R Handy-Gun: A Pocket Guide to Their Identification. A journalist and demographer by training, he graduated with honors in 1974 from the University of Texas at Austin, where he also earned a Ph.D. and three master's degrees. Page 2 Mr. Chairman and Members of the Subcommittee: My name is Eric M. Larson. I testified before this Subcommittee in 1996, and in 1997, and am doing so again this year, regarding serious errors in the National Firearms Registration and Transfer Record (NFRTR). The NFRTR was established under the National Firearms Act (NFA) of 1934. The NFA is designed to control firearms thought to be commonly used by criminals by requiring registration of the firearms, and using prohibitive taxes to reduce their manufacture, distribution, and ownership. It is a harsh federal law to discourage illegally manufacturing, selling, or possessing hand grenades, machine guns, and similar weapons, and the cutting down of conventional shotguns or rifles (regardless of their caliber) to make concealable firearms. Any violation of the NFA is a felony, carrying a penalty of up to a $10,000 fine and 10 years imprisonment upon conviction. The NFRTR is a permanent record of all transactions involving NFA firearms in the United States. It is currently located within the Bureau of Alcohol, Tobacco and Firearms (BATF), which under current law is responsible for administering the NFA. The NFRTR contains a variety of records, including the original registrations and subsequent transfers of NFA firearms to state and local law enforcement officers, state and local museums, private citizens who are legally qualified to own such firearms and are not prohibited from doing so under state or local law, of transfers to and from federally licensed NFA firearms dealers, and records of NFA firearms manufacture by federally licensed NFA firearms manufacturers. Because of the severe penalties for violations of the NFA, accurate record-keeping is essential to avoid unjust prosecutions, and the unlawful seizure of validly registered NFA firearms. I am appearing before you today to respectfully ask the Subcommittee to consider removing the NFRTR from custody of the Bureau of Alcohol, Tobacco and Firearms (BATF), and to permanently reassign its functions to the Department of Justice. As you probably know, the Department of Justice is responsible for the instant background check of persons who wish to purchase handguns, which is scheduled to go into effect this year. Therefore, it would be relatively easy to incorporate the NFRTR into the existing infrastructure, and modifications to allow for administration of the NFRTR would likely be very minor. Removal of the NFRTR from BATF will also place these records within a professional organization that is capable of maintaining them, and probably will require a badly needed 100% record verification. The BATF (and, possibly, other law enforcement agencies) would continue to have access to the information in the NFRTR, for legitimate law enforcement purposes. My knowledge about errors in the NFRTR evolved from the study of certain rare firearms that fell under the NFA in 1934 largely for technical reasons, not because they were commonly associated with criminal activities. Today, these firearms are historical artifacts that reflect a bygone era when there were no federal controls, and virtually no state controls, on firearms design. Thus, they represent a unique niche in U.S. firearms genealogy, because there is nothing else like them, and they are highly prized by collectors. As my research on these guns was published in major, reputable firearm reference books, collectors and persons who had inherited these firearms began contacting me. The BATF has represented my sole interest in discussing errors in the NFRTR to seek the Page 3 removal of these firearms from the NFA as collector s items, but that is not correct. In fact, my interests and this situation evolved as the result of my discovery of serious errors in the NFRTR, and my 1996 testimony makes that absolutely clear. It is in BATF s interest to try and focus attention away from errors in the NFRTR or impugn my motives, and that is what BATF has been doing. BATF is correct in portraying me as a collector, but what changed my interest is the fact that some people who inherited some of these firearms told me that BATF alleged the firearms were not registered, then declared the firearms were contraband and must be forfeited to the Government; and apparently, some were. In other instances, people who were enraged by this situation told me they scoured their premises, found a valid registration document and showed it to BATF. Then, allegedly, BATF said a mistake had been made and the NFRTR was amended to register the firearm to the new, lawful owner. In every instance, the people involved told me they were afraid of BATF, and didn t want to be identified, but wanted me to know this information. While there certainly is a collector s item interest in this situation, the loss or destruction of firearm registration records by the BATF clearly places my concerns in another dimension that is removed from gun collecting. I was aware of these allegations for a number of years, but there seemed no way of proving them one way or the other because of the veil of secrecy that shields NFRTR records from public disclosure. The reason is that the NFA itself prohibits their disclosure as does the Tax Code of 1986, under which the BATF has deemed them to be tax returns. The BATF also apparently uses the tax return angle to cover up wrongdoing by its agents and employees. >From my perspective, the situation regarding the firearms I was researching changed dramatically in March 1996, for two reasons. First, I was asked by L. Richard Littlefield, then President of the Collectors Arms Dealers Association (CADA) to testify before this Subcommittee about getting a more reasonable treatment, as the law allows, for the smooth bore H&R Handy-Gun, Marble s Game Getter Gun, and similar firearms that came under the NFA in 1934 mainly for technical reasons. I d known Dick since about 1989, and he was aware of my research, but CADA s testimony was not limited to these firearms. Indeed, one of the reasons CADA testified in 1996 was to ask for a change in the law to allow federally licensed firearms dealers to buy or transfer curio or relic firearms among themselves at gun shows. The law itself at that time was silent on the issue (that is, nothing in the legal code prohibited such transactions), but BATF took the position that such transactions were illegal, and nobody wanted to incur the legal expense of fighting the BATF. So, the law was ultimately changed to allow federally licensed firearms dealers to be able to buy and sell guns from each other at gun shows. The second reason was that for the first time, valid and reliable evidence of the mismanagement and destruction of NFRTR records became available. This is a document that has been called the Busey Transcript, which was released under a Freedom of Information Act Request. This document is the record of a videotaped training session at BATF headquarters which occurred on October 18, 1995. At the session the then-Chief of the National Firearms Act Branch, Mr. Thomas Busey, stated that the error rate in the NFRTR was 50% when he first assumed his duties the year before; and that Page 4 BATF always testified in court that the NFRTR was 100% accurate, although that was not 100% true. Toward the end of his presentation, Mr. Busey discussed correcting a number of errors that he described, and stated: What we re going to do is we re going to go back, starting with the latest entry and working back to the oldest entry and review every hard copy of every document with its entry into the data base to see if it s correct. I think originally we figured this would take 781 man days to do this with five people sitting at a computer eight hours a day. But it s the only way that we can feel that we can ever get it completely accurate. It was fine to begin putting everything in accurate a year ago or at least be guaranteed a year ago it was correct, but what are you going to do with the entries that go back to the early 80s and the 70s and the 60s? [boldface added for emphasis]. It was an astonishing admission. Based on Mr. Busey s statements, and information about alleged errors in the NFRTR from firearms collectors, I analyzed statistical data that BATF had publicly released each year on NFRTR transaction activities since approximately 1990. In my 1996 testimony, I documented obvious errors in the NFRTR, including the fact that every year since at least 1992, the BATF reported registrations of firearms during years and in categories which they cannot logically or legally exist, and the apparent addition of firearms to the NFRTR for years before 1971. I also included a copy of the Busey Transcript in the Appendix to my 1996 testimony. On May 21, 1996, less than a month after my testimony, U.S. District Judge John A. MacKenzie dismissed five convictions for nonregistration of NFA firearms on appeal, declaring that the NFRTR records were too unreliable to support a conviction. In fact, a BATF Special Agent, Mr. Gary N. Schaible, testified that BATF employees could in fact have destroyed the documents in question. The U.S. Attorney prosecuting the case declined to cross-examine, and the BATF has not appealed the dismissals. The BATF wants this case to go away. As I will show it isn t going to go away, because it is the object of continuing action in Federal Court. Astonishingly, the BATF made no apparent effort to correct the problems that I identified, because I detected them in the next round of data it released the following year. So, I returned to testify before this Subcommittee nearly a year later using these data, and this time extensively documented credible instances of apparent mismanagement, misconduct and criminal wrongdoing by BATF. On May 10, 1997, I formally complained to the Treasury Department Inspector General (IG) about several specific events, but on June 5, 1997, the IG wrote and told me that it was declining to investigate and was referring my complaint to BATF. In an effort to try and prevent what surely would have been another coverup, I contacted the House Committee on Government Reform and Oversight. In early October 1997, the Committee ordered the IG to: (1) independently audit the BATF s firearm registration practices; and (2) evaluate the BATF s internal report. The Treasury Department Inspector General has not, to the best of my knowledge, yet reported its findings to the House Committee. Page 5 Although the BATF internal report was completed in September 1997, I was unable to obtain a copy until late January 1998. The results were no surprise: the BATF completely exonerated itself, and its responses to my allegations seem to raise public scenery chewing to a new level. In response to statistical evidence I presented that BATF was adding firearms to the NFRTR after being confronted by their owners with valid registration documents, BATF stated that such apparent increases may be due to reclassifications of forms. Yet, when I asked NFRTR custodian Gary N. Shaible in April 1996; whether BATF had added firearms to the NFRTR because lawful owners presented valid documents of which BATF had no record, he stated: Yes. I assume that s happened. Thus, it appears likely that at least some people have been unjustly prosecuted for possessing a lawfully registered firearm, for which BATF lost or destroyed the registration documents. In an internal 1981 BATF report I obtained under a Freedom of Information Act request, but which BATF apparently released to me by mistake (I hadn t known it existed, and had not requested it), a long-time BATF employee stated that some firearms were registered to people who would then have been 112 years old and that BATF knew they were dead! BATF s data show that of 14,259 NFA firearms registered from 1934 to 1939, 11,175 (78%) are still owned by the same person or organization who registered or obtained them that year. A person who was 21 years old in 1939 would be 80 years old in 1998. Is it safe to conclude that most of them are now dead? Of the 58,904 firearms registered during the 1968 amnesty, 50,314 (85%) are still owned by the same people. Someone who was 21 years old in 1968 would be aged 51 in 1998; a 65-year-old would today be 95. At least some of these people are dead. Yet, BATF states in its internal report that some firearms may be registered to dead people, but BATF has no knowledge of this. Mr. Chairman, each of the 58,904 amnesty registration forms has a social security number on it; it was a required data field for the registration to be accepted. It would take no more than a few hours to determine from the Social Security Death Index exactly how many of these 58,904 NFA firearms are registered to people who are dead. What does this say about the ability of the Government to keep track of firearms it believes are dangerous? And how pervasive is this problem? Well, according to the most recent data BATF has publicly released (as of December 31, 1996), exactly 108,556 persons have never legally transferred the ownership of machineguns, bazookas, sawed-off shotguns, hand grenades, anti-tank rifles, and similar devices that they registered or acquired by transfer in or before 1971. Inasmuch as the NFA was enacted in 1934, this corresponds to ownership periods of from 27 to 64 years. Someone who registered an NFA firearm at age 65 in 1934 (the specific example cited by the BATF employee in the 1981 internal report) would have been 112 years old in 1981; in 1998, such a person would be 129 years old. Is this sound management on the part of the BATF? I think not. I could go on at some length about these and similar issues, and have reserved them for the attachments to my testimony, but feel that I must discuss two more situations here. One of them potentially affects me personally; the other is valid and reliable evidence of both perjury and an attempt by BATF to continue to try and cover up errors in the NFRTR. Page 6 After my April 1996 testimony, through a series of Freedom of Information Act requests, I discovered that four firearms in my personal collection were apparently registered or transferred illegally by the BATF years before I lawfully acquired them. All of these firearms are smooth bore H&R Handy-Guns, and bear serial numbers 5592, 29691, 50885, and 53637. Two of them are new-in-box, are quite valuable, and came from the H&R Factory Collection. I documented this in my April 1997 testimony. As the attachments to my testimony today document, on January 31, 1998, I formally requested a statement from Nereida W. Levine, Chief of the National Firearms Act Branch, asking if the BATF plans to seize these firearms as contraband, and undertake a forfeiture action. In a letter dated March 3, 1998, Chief Levine confirmed what I already knew namely, that the NFRTR shows that the firearms are legally registered to me, a question that I did not ask. The question Chief Levine left unanswered, and which I re-asked in an immediate followup letter dated March 6, 1998, is whether the BATF considers these specific firearms as subject to seizure and forfeiture. I have received no response to this letter to date, and I don t believe it is because Chief Levine is unable to read. I think I have received no response because I have placed BATF between a rock and a hard place; namely, if BATF declares the firearms are contraband because BATF itself illegally registered or transferred them, that means the BATF has admitted at least some of what I have alleged, which is that the accuracy and integrity of the NFRTR has been compromised. I frankly do not know if the BATF will move to seize these firearms after all this blows over. If so, I ll have documents to show to the U.S. Attorney who prosecutes that action, demonstrating that I have repeatedly attempted to deal with this matter as a responsible citizen by contacting the BATF, as well as my elected representatives in the Congress. Mr. Chairman, Members of the Subcommittee, if you legally bought something in a transaction that the Government approved years ago, how would you feel about having your Government forcibly invade your home, seize those items, and go to Federal Court to permanently take them away from you without any compensation? That is a tension that I have lived with for more than a year now, and I can tell you that I don t like it. Would you? The second situation is evidence of both perjury and an attempt to continue to cover up errors in the NFRTR. Specifically, Mr. Shaible told a completely different story in the 1997 BATF internal report than he did under oath in federal court. In the 1997 internal BATF report, Mr. Schaible stated under oath that the registration documents I was referring to in my complaint were thought to have been destroyed some 8 years ago by contract employees, not BATF employees. Yet, my question specifically referred to the May 21, 1996, testimony, which Mr. Schaible gave under oath in Federal Court, and referred specifically to the BATF employees that Mr. Schaible stated could have destroyed the documents in 1994, which is considerably later than the 1986-87 time frame BATF cites. I have repeatedly gone over each word of each document, and I can find no obvious explanation for this blatant discrepancy. I understand that David N. Montague, Esq., a private attorney representing the defendant in this case, filed a Writ of Habeas Corpus on March 25, 1998, in federal court regarding the single outstanding conviction based, in part, on the discrepant testimony of Mr. Schaible. It seems to me as though the BATF is continuing to try and cover all of this up. Page 7 In an article entitled Institutional Perjury, published in the October 1996 issue of Voice for the Defense, author James H. Jeffries III, Esq., stated that the Busey tape was clearly exculpatory and clearly implicated every National Firearms Act prosecution and forfeiture in living memory. He concluded: All across the country Assistant United States Attorneys, United States District Judges, and other federal and local law enforcement officials are going to learn what most defense lawyers and gun dealers have known for years and what the aftermath of Waco and Ruby Ridge starkly illustrated: BATF officers and agents lie, dissemble and cover up on an institutionalized basis. These are not aberrations; they are an institutional way of life. Just who is the criminal in these cases? For the above reasons, and the documented evidence I have presented in my 1996 and 1997 testimonies, as well as in the self-explanatory attachments to this testimony, I would like to respectfully ask the Subcommittee to consider removing the NFRTR from custody of the Bureau of Alcohol, Tobacco and Firearms (BATF), and to permanently reassign its functions to the Department of Justice. The Department of Justice is the entity which actually conducts all of the background checks that the BATF, and other law enforcement agencies, use at trial for violations of the law, and has a much better system than does the BATF for assuring the accuracy and integrity of those records. In contrast, the BATF has destroyed NFRTR records, lied about it, and continued to lie about it. As you know, the instant background check for persons who wish to purchase handguns is scheduled to go into effect later this year, and the Department of Justice is responsible for doing these record checks. Moving the NFRTR from BATF to the Department of Justice would mean that BATF (or its successor I am hopeful of change in this area) would still certainly have access to these records for legitimate law enforcement purposes; however, the BATF could no longer illegally manipulate or destroy these records. The Department of Justice would have no institutional reason to do so and, indeed, would likely be more objective about maintaining their accuracy and integrity. In my judgement, by its past actions and continuing efforts at trying to cover up its wrongdoings, the BATF has forfeited any right to custody of the NFRTR. When I was a student in the first Intergovernmental Relations class that the late, great, Barbara C. Jordan taught in 1979 at the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin, she told us: Government by the people is not a spectator sport. Enough said, and I thank you all for the opportunity to present this information. ----------------------------------------------------------------------------------------------------------- APPENDIX AND TESTIMONIAL EXHIBITS [Note: Many of Larson s exhibits appear elsewhere on this page and/or are in his previously published 1996 or 1997 testimonies. Notes in brackets [ ] by each exhibit indicate if it is on this page or not, and if not, where published or located, to avoid duplicating materials. Unless otherwise noted, page numbers for Larson s 1996 and 1997 Congressional testimonies refer to the actual published Congressional hearing, which is page numbered different from his testimonies as they appear on this web page. Some materials Larson cites in his 1998 testimony are not shown on this page because they are copyrighted articles, and are so indicated] 1. Letter from Noel Napolilli dated February 19, 1998, to Chairman Dan Burton, House Committee on Government Reform and Oversight, asking for assistance in the return of his seized MP-40, which was taken by BATF in 1992, with copies to Senator Orrin G. Hatch and Chairman Jim Kolbe. [on this page] 2. Copy of Noel E. Napolilli vs. United States of America, Civil Action No. F93-0037 (JKS), Complaint for Return of Property, United States District Court for the District of Alaska at Fairbanks. This was the lawsuit filed by Napolilli which he later dropped because the expense began to exceed the value of the firearm, and out of fear of retaliation by the BATF. [on this page] 3. Article entititled Institutional Perjury, by James H. Jeffries, III. Voice for the Defense, Vol. 25, No. 8, October 1996, pages 28-30. [on this page] 4. Letter from Charles T. Canady to Craig Smith dated March 11, 1998. CONGRESS OF THE UNITED STATES HOUSE OF REPRESENTATIVES Washington, D.C. 20515-0912 March 11, 1998 Mr. Craig Smith 1519 S Lake Rochelle Dr Winter Haven, Florida 33881-9646 Dear Mr. Smith: Thank you for contacting me regarding an article alleging mismanagement, misconduct, and criminal wrongdoing by the Bureau of Alcohol, Tobacco and Firearms (BATF). I appreciate hearing your view on this important issue. Enclosed is the BATF s reponse to the article. I hope this information is helpful to you. As a member of the House Judiciary Committee (which has BATF oversight jurisdiction), I will remember your concerns. Again, thank you for taking the time to contact my office. Please let me know whenever you have concerns regarding issues before the Congress. Sincerely yours, (Signed---Charles T. Canady) Charles T. Canady Member of Congress CTC: jm Enclosure 5. Letter from John W. Magaw, Director of BATF, to Charles T. Canady dated February 23, 1998. [NOTE: Magaw simplifies Larson s complaints, does not adequately characterize Larson s research, and falsely claims that the Treasury Department Office of Inspector General initiated an independent investigation into Larson s allegations. In fact, in June 1;997 the Treasury Department specifically declined to investigate. In October 1997, Treasury was ordered by the House Committee on Government Reform and Oversight to investigate both Larson s allegations and to evaluate the internal BATF report] Page 1 DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS WASHINGTON, D.C. 20226 Feb 23 1998 Honorable Charles T. Canady U.S. House of Representatives Washington, D.C. 20515 Dear Mr. Canady: This is in response to your November 13, 1997, request concerning allegations made by Mr. Eric M. Larson of mismanagement, misconduct, and criminal wrongdoing by the Bureau of Alcohol, Tobacco and Firearms (ATF). Mr. Larson s allegations were contained in the October 3, 1997, issue of Gun List. We apologize for the delay in responding to your request. By way of background, Mr. Larson has been requesting information on the H & R Handy Gun and the Marble Game Getter firearms since approximately 1986 or 1987. Mr. Larson has requested that these firearms be removed from the scope of the National Firearms Act (NFA). Whenever Mr. Larson has contacted ATF with a question or request, ATF has provided the available information. In May of 1997, the Assistant Inspector General (IG) for Investigations, Department of the Treasury, received a letter from Mr. Larson making allegations against various ATF employees. The IG s office forwarded the letter to the Director of ATF to conduct an appropriate investigation into these allegations. The article contained in Gun List references these allegations and suggests that the IG s Office has acted inappropriately in allowing ATF to investigate allegations of misconduct made against the agency. Initially, we would note that it is the function of ATF s Office of Inspection to investigate allegations of wrongdoing made against ATF employees and that it was entirely proper for the IG s Office to forward Mr. Larson s letter to ATF for investigation. Furthermore, while ATF did conduct an internal investigation into the allegations made by Mr. Larson, Page 2 Honorable Charles T. Canady the IG s Office also initiated an independent investigation into these allegations and that investigation is still ongoing. Due to this ongoing investigation we are unable to comment further on any action that might be taken with respect to the allegations made by Mr. Larson. We hope that this information proves helpful in responding to your constituent. Please let me know if we can be of further assistance. Sincerely yours, (Signed---John W. Magaw) John W. Magaw Director 6. Article entitled What Happens When The BATF Breaks The Law, by Ned. Schwing, in GUN LIST, October 3, 1997, page 7. [Copywrited article, not on page. This article essentially repeats most of Larson s May 10, 1997, complaint to the Treasury Department Inspector General, which is on this page} 7. Article entitled How Firearm Registration Abuse & the Essential Operational Mechanism of Guns May Adversely Affect Gun Collectors, by Eric M. Larson, in THE GUN JOURNAL, Vol. 7, No. 5, March ;1998, pages 18-19, 78-79. [Copywrited article, not on page. This article summarized problems with the NFRTR, and accounts how the BATF illegally threatened Thompson Contender excecutives into stopping production of the .410 Contender. The article also discussed problems of the BATF s deliberate abuses regarding firearms classifications and its adverse implications for gun collectors]. 8. Article entitled Smoothbore Pistols Firing Shotgun Shells, by Eric M. Larson, in OFFICIAL R. L. WILSON PRICE GUIDE TO GUN COLLECTING, 1st edition. New York: The Ballantine Publishing Group/Random House, Inc., 1998, page 56-59. [Copyrighted article, not on page. This article describes the history of regulation of smooth bore handguns originally commercially manufactured in the United States in or before 1934, and their subsequently regulation under the National Firearms Act of 1934, as amended. Some 14 different handguns are described; the article also contains a data table with estimates of the number of surviving specimens] 9. Memorandum from Harold A Serr, Director of ATFD, dated February 11, 1969, ruling that the .410 Contender is not an NFA firearm. Feb 11 1969 Assistant Regional Commissioner Alcohol, Tobacco and Firearms North-Atlantic Region Alcohol, Tobacco and Firearms Division National Office CP:AT:ED:EO:JBC Classification of the Thompson/Center Contender single shot pistol We have received a number of inquiries regarding the classification of the above mentioned pistol which is manufactured by Thompson/Center Arms, Rochester, New Hampshire. Information available to this office discloses that the Thompson/Center Contender is manufactured in various pistol and revolver calibers such as .22LR, .22WMR, .22 Hornet, .22 Rem-Jet, .38 Special, .357 Magnum, .256 Winchester Magnum and possibly more. The caliber of the gun cane be changed by changing barrels. However, the caliber combination in question, and on which this ruling is based, is in the barrel made to accommodate either the .45 Long Colt or .410 shotshell. This barrel measures 6 13/16 inches and contains rifling (spiral lands and grooves). A 1 7/8 inch choke device attached to a 1 5/16 inch unrifled muzzle brake is added to the barrel. The choke device is not smooth bored but contains six straight lands (sometimes called flukes). These straight lands are flush with the rear of the choke tube but taper upward to a height of about 1/32 of an inch at the muzzle like small ramps. When a .410 shotshell is fired in this barrel the spiral rifling in the first 6 13/16 inches of the barrel gives the shot pattern a swirling motion. However, as the shot pattern passes through the muzzle brake and enters the choke tube, the straight lands of the choke tube purportedly stop the swirling motion and make the shot pattern more uniform instead of leaving the muzzle like a smoke ring with an empty center. A word of warning from the manufacturer makes it clear that the choke device must be removed before firing the .45 Long Colt cartridge, otherwise severe damage may result to both the shooter and the firearm. It is the opinion of this office that the Thompson/Center Contender was, and is, originally designed as a pistol and that its configurations conform to the definition of a pistol as that term is defined in Part 179.35, Title 26, C.F.R. As a pistol the Contender is not a firearm subject to the National Firearms Act as amended by Public Law 90-618. (Signed) Harold A. Serr Harold A. Serr Director CC: ALL REGIONS JBCain/mtc 1/24/69 10. Report of Trip to Thompson/Center Arms, Rochester, New Hampshire, on June 18, 1969. [NOTE: This documents illegal threats by BATF to force Thompson/Center to stop production of the .410 Contender. This action was rescinded in 1985 after attorney Stephen P. Halbrook discovered the 1969 Memorandum cited above under a Freedom of Information Act request. The result was that Thompson/Center and other U.S. firearms manufacturers resumed or initiated production of rifled-barrel handguns designed to fire the .410 shotshell] Page 1 REPORT OF TRIP TO THOMPSON/CENTER ARMS, ROCHESTER NEW HAMPSHIRE, ON JUNE 18, 1969 CP:AT:EO:PHW June 18, 1969 At 1:35 p.m. on June 18, 1969, a meeting was held at the Thompson/Center Arms, Route 11, Rochester, New Hampshire, 03867;, regarding the status of the Contender when equipped with the .45/.410 dual caliber combination barrel and choke tube. In attendance at this meeting were the following persons: Mr. Kenneth Thompson - T/C/ Arms Mr. Warren Center - T/C Arms Mr. Robert Gustaffson - T/C/ Arms Mr. Cecil Wolfe - National Office, ATFD Mr. Victor Fezio - Boston Office, ATFD Mr. Paul Westenberger - National Office, ATFD Mr. Wolfe opened the conference by stating the purpose of the visit, that being to reach a mutual agreement with Thompson/Center Arms regarding the future of the firearm when equipped with the .45/.410 barrel. Mr. Wolfe then gave a resume of past and current legislation on similar weapons, using the H&R Handy Gun as an example, and further citing the Congressional history surrounding the chain of events in past years. The following reflects an accurate summary of the questions posted by the attendees of the Thompson/Center Arms: Q. (Mr. Thompson) What will be the future action of ATFD? A. (Mr. Wolfe) Two options - (1) Terminate production, and IRS will live with the barrels already in existence or (2) IRS will issue a Revenue Ruling that the .45/.410 barrel on the Contender Page 2 causes it to fall under the purview of the NFA. Q. (Mr. GustafFson) What is the IRS position on shot shell ammunition and would this be applicable? A. (Mr. Westenberger) Shot shell ammunition and shotgun ammunition were defined. Q. (Mr. Thompson) This will put us out of business. A. (Mr. Wolfe) Not necessarily. Manufacture could continue under the category of an NFA weapon. Q. (Mr. Gustafson) Would our distributors require licensing? A. (Mr. Wolfe) The licensing requirements and transfer requirements were stated. Q. (Mr. Gustaffson) What would occur if the barrel was only sold as an accessory item? A. (Mr. Wolfe) Aspects of the individual concerned and the manufacturing tax liability were reviewed. Q. (Mr. Center) Thompson/Center will load shotshells, brass or otherwise, what then? A. (Mr. Wolfe) The Contender cannot be capable of firing existing shotgun ammunition. Shotshells of pistol calibers, if manufactured by Thompson Center, should use metallic casings rather than cardboard or plastic hulls. Q. (Mr. Center) What about manufacturing shotshells using metallic rifle casings? A. (Mr. Wolfe) We would assume the Contender would retains [sic] its pistol confiburation and that shotshells would be of a cartridge Page 3 peculiar to pistols. Q. (Mr. Thompson) Is there any objection to the Contender presently having several barrels chambered for rifle cartridges? A. (Mr. Westenberger) There is no objection on the part of IRS. (The Contender presently comes with twelve assorted barrels, excluding special orders. The .22 Hornet, .22 Jet and .256 Winchester Magnum are rifle cartridges adapted to the Contender. ) Q. (Mr. Center and Mr. Thompson) Resume of the Contender sales and purpose was offered. Wouldn t the fact that the Contender (.410) is used for sporting purposes be justification for its continued manufacture? A. (Mr. Wolfe) No. The H&R Handy Gun also had a sporting purpose potential but still was an NFA weapon. At this point in the conference, Mr. Center demonstrated the interchangeable barrel capability of the Contender. This was followed by a tour of the entire Thompson/Center Arms Manufacturiing facility, showing investment casting process, polishing machining, engraving, blueing, assembly and test firing facilty. The conference was resumed as follows: Mr. Wolfe repeated the definition of Any other weapon from the Gun Control Act of 1968 and the definition of a Pistol from Section 179.35 of National Firearms Act Regulations. Q. (Mr. Center) The shot pattern of the Contender with the .45/.410 barrel splatters; it s not effective. The rifling is standard for the .45 caliber cartridge both in depth of the grooves and number of turns per barrel. Would this help? Page 4 A. (Mr. Westenberger) The rifling is appropriate but the firearm still chambers a .410 shotgun shell. Q. (Mr. Thompson) We can then redesign to shoot shotshells. A. (Mr. Wolfe) I ll redefine what we would sanction, shot shells being sanctioned pistol caes that were loaded or reloaded. Q. (Mr. Wolfe) Purpose of choke on the Contender. A. (Mr. Westenberger) It straightens the shot on a life-of-barrel axis since the rifling causes it to spiral and become less effective. Q. (Mr. Gustaffson) I didn t get what you said you d sanction. Please repeat it. A. (Mr. Wolfe) We would condone a pistol which was designed to fire commercially available ball ammunition. If the ammunition was metallic and particular to a pistol and loaded with shot, the weapon would not come under the NFA as long as the bore was rifled and shotgun ammunition could not be fired. This would apply even if the choke attachment was installed. Q. (Mr. Westenberger) Could we have accurate production figures to date on the guns sold; .45/.410 barrels sold and the inventory of finished and unfinished .45/.410 barrels? A. (Mr. Gustaffson) Yes, I ll mail them to you in a few days. We ve sold about 5000 guns, 2000 barrels and probably have 1000 barrels in various stages of completion. We ll call our barrel maker and tell him to stop manufacture. Page 5 Q. (Mr. Gustaffson) And what will be the status of the weapons that are out with the .45/.410 barrels? A. (Mr. Wolfe) We ll live with those. I don t feel that the purpose of the law is being subverted. Q. (Mr. Thompson) This will cause a stir. Who can be blamed for the sudden stop in production? A. (Mr. Wolfe) If you say the Government asked us to quit there would be repercussions and a question about the status of those in existence. We would get heat although we ve had heat before. As Harry Truman said, If you can t stand the heat, get out of the kitchen. I might add that we have had inquiries in the past on the status of the Contender. We have also had various manufacturing agreements with industry in the past in similar type situations involving potential automatic weapons. Whatever your story will be, please refrain from giving the impression that the Contender is a firearm under the NFA. I would recommend that you advise your distributors that in order to avoid any suggestions that the weapon might come under controls of the Act, you decided to redesign the weapon so it won t chamber shotgun ammunition. Q. (Mr. Thompson) Could we fight this? A. (Mr. Wolfe) My candid opinion is that it would depend on which court got the case. Q. (Mr Thompson) What would be the steps if we fought it? A. (Mr. Wolfe) We would just issue a Revenue Ruling and then serve notice on Thompson/Center Arms, your lawyers would probably get a restraining order. From there we would probably have a hearing page 6 to discuss the characteristics of the firearm, the applicable laws and the regulations. There would be appeals and finally a court determination. Q. (Mr. Gustaffson) What would be the next step if it were an NFA weapon. A. (Mr. Wolfe) Since the amnesty period is over there could not be registration. They would be contraband and subject to seizure. The owners would be in violation. There could possibly be a registration procedure set up. Q. (Mr. Thompson) Would the court set this up? A. (Mr. Wolfe) The court would not control this aspect. Q. (Mr. Center) What effect would an 18" barrel make on the Contender? A. (Mr. Westenberger) None. Since the Contender is not a shoulder weapon, barrel length would have no beariing. At this point, Mr. Thompson stated that they would cease production of the .45/.410 barrels and would undertake a redesign. They expressed appreciation for the fact that we would allow them to dispose in commerce of the inventory of finished and unfinished barrels on hand. All aspects of the meeting were cordial and no belief exists that Thompson/Center Arms will not abide by their agreement. (Signed--Cecil M. Wolfe) (Signed---Paul H. Westenberger) _____________________________ ______________________________ Cecil M. Wolfe Paul H. Westenberger Page 7 ADDENDUM: MEMORANDUM OF PHONE CALL Mr. Thompson phoned at 3:30 p.m. on June 19, 1969, to give a progress report on the status of the Contender. He advised that letters have been sent to all their representatives and that advertising has been stopped. He further stated that the T/C facility had 2390 barrels in stock in various stages of completion. He further stated that this figure was higher than the previous estimate in that they did not compute the barrels which were in grinding operations. I stated that Mr. Wolfe would be given this information and that he would contact Mr. Thompson upon his return. (Signed--P. H. Westenberger _______________________________ P. H. Westenberger 11. Letter from BATF Director John W. Magaw to Eric M. Larson, dated July 20, 1994. [NOTE: This letter, as well as other letters and extensive information about Larson s efforts to have the H&R Handy-Gun removed from the NFA as a collector s item, and BATF s responses, appears in his printed 1996 testimony] Page 1 DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS WASHINGTON, D.C. 20226 Jul 20 1994 CC-43,771 FE:TGF Mr. Eric M. Larson Post Office Box 5497 Takoma Park, Maryland 20913 Dear Mr. Larson: This is in response to your letters dated May 31, 1994, to the Assistant Secretary (Enforcement); June 3, 1994, to the Director, Bureau of Alcohol, Tobacco and Firearms (ATF); and June 14, 1994, to Secretary Bentsen, asking for reconsideration of ATF s decision of March 23, 1992, denying your request for removal of the Harrington & Richardson Handygun (H & R Handygun) from the scope of the National Firearms Act (NFA), 26 U.S.C. Chapter 53. In support of your reqeuest for reconsideration, you submitted several articles. In the paragraphs to follow, we have addressed those portions of the articles which relate to your request for removal. As you observed, one of the reasons for denying your rerquest was ATF s conclusion that the H & R Handygun is similar in design and function to the sawed-off shotgun, a popular crime weapon that has been the subject of numerous Federal and State prosecutions. You contend that this position conflicts with the Government s argument in a United States district court case. In that case, the Government correctly pointed out the legal distinction in the NFA between a weapon made from a shotgun (e.g., a sawed-off shotgun) and an any other weapon (e.g., an H & R Handygun). [NOTE: This case is reproduced on pages 245-274 of Larson s printed 1996 testimony; it is also on this web page]. Specifically, a sawed-off shotgun falls within the definition of weapon made from a shotgun in 26 U.S.C., Section 5845(a)(2), while weapons such as the H & R Handygun are within the definition of any other weapon in 26 U.S.C., Section 5945(e). From a _legal_ [underlined in letter] standpoint, the difference is significant since the tax imposed on the transfer of these weapons is $200 in the case of a weapon made from a shotgun but only $5 in the case of an any other weapon. However, as we stated in our letter of March 23, 1992, there is no _practical_ [underlined in letter] difference between the two types of weapons in terms of design and function. Therefore, we see no conflict between the positions ATF has expressed with regard to these weapons. Page 2 Mr. Eric M. Larson You also assert that a sawed-off shotgun has been converted from a shoulder fired weapon for the purpose of transforming it into an offensive weapon, while the Handygun was designed as a sporting pistol which is used as a small game gun. Again, you believe that this difference renders erroneous ATF s conclusion that the design of the two weapons is identical. >From a utilitarian perspective, the fact that the H & R Handygun is capable of being concealed and of firing a fixed shotgun shell makes it comparable in design to the sawed-off shotgun. The Handygun can be used as readily for anti-personnel purposes as for hunting small game or exterminating varmints. Furthermore, the fact that the H & R Handygun utilizes a receiver that is identical in mechanical design and function to various single shot .410 gauge shotguns produced by H & R indicates its similarity to a sawed-off shotgun. Finally, that Congress chose to include both weapons within the NFA definition of firearm indicates that both should remain subject to NFA controls unless it is clearly established that they meet the criteria for removal. As we have stated repeatedly, the criteria have not been met in the case of the H & R Handygun since we cannot conclude that it is not likely to be used as a weapon. To further support your request, you have again asked us to compare the H & R Handygun with with .45 Colt/.410 gauge Thompson Contender pistol, a firearm you believe is similar to the H & R Handygun and which is distributed in commercial channels free of NFA controls. Againl, we fail to see the basis for this comparison because the Contender pistol is not a smooth bore shot pistol subject to the NFA. You also aver that ATF did not give adequate consideration to the statements of certain third parties in support of your request. The statements of third parties were considered but do not persuade us that H & R Handyguns would not likely be used as weapons if removed from NFA controls. Your most recent correspondence states that ATF has not given fair and adequate consideration to your arguments and has responded cryptically to your requests for reconsideration. Our records indicate that ATF has corresponded with you 17 times concerning the H & R Handygun Page 3 Mr. Eric M. Larson from 1987-1993. With the exception of the letter dated July 29, 1993, which briefly restated the basis for denial articulated in the March 23, 1992 letter, all of our letters have responded to the issues you raised. Finally, we request that you delete from your articles the invitation to your readers to contact ATF for copies of court documents. Since these documents are public records, copies should be obtained by contacting the courts. For the foregoing reasons, our decision must stand. Sincerely yours, (Signed---Daniel R. Black for) John W. Magaw Director 12. Document entitled Table 1: Handguns with Rifled Barrels Designed to Fire .410 Shotgun Shell Ammunition Currently Being Manufactured and Sold in the United States, by Name, Caliber(s), Barrel Length(s), and 1996 Retail Price. [Larson lists 11 handguns, including two revolvers; this table appears on page 128 of his printed 1996 tesitmony] 13. Larson put the entire 1997 BATF internal report into his 1998 testimony, including the numerous memorandums that BATF issued clearing its employees of all charges Larson made. Since most of this 51-page document is already on this page, it will not be repeated here. 14. Document by Eric M. Larson entitled Responses to the Bureau of Alchol, Tobacco and Firearms Internal Investigation of my complaint. JAMES---I AM SENDING THIS IN A SEPARATE E-MAIL, BECAUSE THE DOCUMENT IS PRINTED LANDSCAPE WITH 3 COLUMNS, ONE COLUMN HAS MY CHARGES, THE MIDDLE COLUMN IS BATF S RESPONSE AND THE 3RD COLUMN IS MY COMMENTS ON THE BATF RESPONSES. 15. Letter dated January 31, 1998, from Eric M. Larson to NFA Branch Chief Nereida W. Levine, asking about whether BATF will seize some of his H&R Handy-Guns as contraband because the BATF illegally registered or transferred them in the past. [This letter is on the page] 16. Letter dated March 3, 1998, bearing symbols F:NFA:GS 179.101/98-4516 from Nereida W. Levine to Eric M. Larson, stating that the NFRTR shows the guns in question are lawfully registered to Larson. [This letter is on the page] 17. Letter dated March 6, 1998, from Eric M. Larson to NFA Branch Chief Nereida W. Levine pointing out that Levine didn t answer the question about the Handyguns being forfeitable as contraband, and again asking that she answer. [This letter is on the page] 18. Letter dated February 8, 1998, to BATF Director John Magaw from Eric M. Larson, pointing out that BATF did not answer his question about the BATF adding firearms to the NFRTR after being confronted with lawful registrations that were not in the NFRTR data base. [This letter is on the page]. 19. Article entitled Federal Workers Must Tell Truth, Court Says: Separate Charges Can Be Brought for Lying About Misconduct, by Joan Biskupic, _The Washington Post_, Juanary 22, 1998, page A15. [Copyrighted article, not on page, about a 1998 Supreme Court ruling, Lachance vs.; Erickson, which was unanimous that federal workers who deny a job-related misconduct charge can be separately charged and disciplined for lying. The decision further notes that unlike in criminal trials in which defendants need not testify, federal employees have an obligation to answer questions and agencies can draw negative inferences when people refuse to respond. 20. Letter dated October 27, 1997, to Eric M. Larson from Orrin G. Hatch, Chairman, Senate Committee on the Judiciary, in which Senator Hatch acknowledges he is aware of the allegations of misconduct against the BATF; states that he is committed to pursuing credible allegations through exhaustive and fair hearings in the Judiciary Committee ; and lists the three alternatives that he is considering to abolish the BATF or to place it under the Department of Justice. [This letter is on the page] 21. Letter dated March 11, 1998, to Eric M. Larson from Orrin G. Hatch, Chairman, Senate Committee on the Judiciary, thanking Larson for providing his testmony, noting: Your concerns, combined with the concerns of others like you, provide insight that would be difficult for me to obtain in any other way. [This letter is on the page]