Cite as Transcript, U.S. v. One FAL Rifle, Case No. 71-2747-HP, and U.S. v. One Browning Automatic Rifle, Case No. 72-642-HP (C.D.Cal 1972). IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA HONORABLE HARRY PREGERSON, JUDGE PRESIDING UNITED STATES OF AMERICA, Plaintiff, v. ONE (1) FAL Fabrique Nationale Civil No. 71-2747-HP RIFLE, Serial No. 40199, Defendant, JOHN F. ARNOLD, Claimant. UNITED STATES OF AMERICA, Plaintiff, v. ONE (1) Browning Automatic Civil No. 72-642-HP RIFLE, Serial No. 1176873, Defendant, JOHN F. ARNOLD, Claimant. REPORTER'S TRANSCRIPT OF PROCEEDINGS Place: Los Angeles, California Date: Tuesday, April 11, 1972 DONNA M. KWAN Official Reporter Pro Tem 438 U. S. Court House 312 North Spring Street Los Angeles, California 90012 Telephone 622-9529 874-6961 APPEARANCES: For the Plaintiff: WILLIAM D. KELLER United States Attorney; by LARRY L. DIER Assistant United States Attorney For the Defendant: RICHARD T. SYKES 15720 Ventura Boulevard, Suite 520 Encino, California 91316 INDEX Page Motion to Consolidate ....................................... 4 Opening Statement on Behalf of the Plaintiff ................. 5 Opening Statement on Behalf of the Defendant ................ 6 Opening Argument on Behalf of the Plaintiff ................. 79 Argument on Behalf of the Defendant ......................... 85 Closing Argument on Behalf of the Plaintiff ................. 88 Findings of the Court ...................................... 88 PLAINTIFF'S WITNESS DIRECT CROSS REDIRECT RECROSS SCROGGIE, Robert J. 9 12 27 (Recalled) 33 35 49 51 DEFENDANT'S WITNESS: ARNOLD, John F. 53 71 76 INDEX(Continued) PLAINTIFF'S EXHIBITS: FOR IDENTIFICATION IN EVIDENCE 1 12 31 2 12 31 3 12 31 4 34 5 77 78 6 78 DEFENDANT'S EXHIBITS: A 28 70 B 29 70 C 42 70 D 44 E 46 78 F 89 70 LOS ANGELES, CALIFORNIA, TUESDAY, APRIL 11, 1972, 11:35 A.M, THE COURT: Call the calendar. THE CLERK: No. 3 on the calendar, 71-2747-HP, United States of America v. One (1) FAL Fabrique Nationale Rifle and 72-642-HP, United States of America v. One (1) Browning Automatic Rifle; court trial. MR. DIER: Larry Dier for the Government, your Honor. THE COURT: Good morning, Mr. Dier. MR. SYKES: Richard Sykes for the defendant, your Honor. THE COURT: Good morning, Mr. Sykes. MR. DIER: At this time, your Honor, I would move that USA v. One (1) Browning Automatic Rifle, Case No. 72-642-HP, be consolidated with the previous case for trial. They nearly involve identical issues and i think they should be disposed of at one time. MR. SYKES: Yes, your Honor, we think that is a good idea, too. THE COURT: The motion will be granted, so the two cases then will be consolidated for trial. Are you ready to proceed, Mr. Dier? MR. DIER: Yes, your Honor, we are. THE COURT: And is the defendant ready to proceed, Mr. Sykes? MR. SYKES: Yes, sir. THE COURT: Very well. Fine. Do you desire to make on opening statement, Mr. Dier? MR. DIER: Very briefly, your Honor; yes, I do. OPENING STATEMENT ON BEHALF OF THE PLAINTIFF MR. DIER: In the FAL case, I think our testimony and our evidence is going to be that the gun was designed to fire fully automatic. As it exists now, I understand it has been welded, and something has been cut off, so it is not now capable of being fired fully automatic, but it is our position that under the statute, your Honor, a copy of which I have here, the requirement for registering a machine gun is if a machine gun is designed as one that does or is designed to fire fully automatic. In connection with the BAR, the testimony will be -- and I think it's been probably stipulated that it is a machine gun -- and our evidence is that it is not registered with the Government. I think the evidence on the other side will show that a BAR with the same serial number except having a last digit of "8" instead of "3" as this gun was registered, that that gun our evidence will show I believe was not found in possession of Mr. Arnold. So it is our position that if he did have that kind of gun, we don't know what happened to it, but it is not this gun. This gun was not registered, and, therefore, it should be registered. THE COURT: The only difference then is the last number, an 8 instead of a 3? MR. DIER: Yes, sir, that is my understanding. THE COURT: Isn't there some way that this can be worked out administratively so that the gun that is presently before the court can be registered? MR. DIER: I would have to defer to my people from the Alcohol, Tobacco and Firearms. My understanding of the law was that when the Gun Control Act of 1968 was passed, there was an Amnesty period within which unregistered guns could be registered without penalty, and I'm not sure now, since the period is past, whether there can be a registration without penalty, but as a minimum, I think there is a tax that would be due if it is to be registered. THE COURT: All right. Mr. Sykes? MR. SYKES: Yes, sir. OPENING STATEMENT ON BEHALF OF THE DEFENDANT MR. SYKES: Our position, your Honor, first on the Browning is that is the gun that Mr. Arnold owned. That is the gun that he attempted to register, and he read the serial number off the gun as well as he could. 8's and 3's sometimes on serial numbers are hard to distinguish. He doesn't have any other gun with the other serial number. We still believe that that gun is registered correctly, and we will submit to what proof we have in that regard. That's the simple issue there. I think when you take a gun that's of World War II vintage that's been around like that one has, then you do the best job you can to read the serial numbers, and when you record it as such, you've complied even though it may be that it is registered the other way. Now the question on the FAL we will have lots of proof on that. We will prove that guns almost identical to this but easier to convert to machine guns have been determined by the Alcohol, Tobacco and Firearms people to be legal. There are 1,800 some odd guns that they just decided are legal. Now the gun is a semi-automatic gun. All guns that were imported by Browning to the United States were semi-automatic guns, and this one is a semi-automatic gun. The only difference between that one and the run-of-the-mill FAL is that this one would be much more difficult to convert into a machine gun than the run-of-the- mill FAL, of which there are 1,800 and some that these people don't make you register. We will go through the lineage of the FAL. The FAL was originally manufactured in two species. They had a semi-automatic gun and an automatic gun. Mr. Arnold, who is an outstanding expert of machine guns and guns of all types, I believe will tell us how these guns are manufactured and will give us his opinion as to what this one was. Secondly, in reading the statute, the gun has to be readily restorable to a machine gun. We say this one isn't. This is strictly a semi-automatic gun. That is our position. It is a question of fact where the thing came from; what it is and whether it can converted or restored. The statute is protective of people who want to take guns like this end make machine guns out of it excuse me, not protective, but watches out for people. It makes it a felony to have parts which can convert a semi-automatic gun to a machine gun, and they haven't found anything like that in this case on Mr. Arnold. Mr. Arnold was at the time of this taking of these guns in the machine gun business. He had all the necessary licenses and he had numerous automatic guns. They went into his place with a search warrant and took all kinds of guns, some of which they have tendered back. They took all kinds of things; they went through everything he had; they took his records and just turned the place over, and these are the fruits of their search. There is also the one other gun which evidently isn't in issue, but as stated, our position is that the Browning is registered, and the FAL, is a semi-automatic gun and is legal and not subject to registration. Thank you, your Honor. THE COURT: Thank you, Mr. Sykes. You may call your first witness, Mr. Dier. MR. DIER: Thank you. Mr. Scroggie. ROBERT J. SCROGGIE, called as a witness by the plaintiff, having been first duly sworn, was examined and testified as follows: THE CLERK: Please be seated, and state your full name for the record, please. THE WITNESS: Robert J. Scroggie, S-c-r-o-g-g-i-e. DIRECT EXAMINATION BY MR. DIER: Q What is your occupation, Mr. Scroggie? A I am a firearms enforcement officer for the Alcohol, Tobacco and Firearms Division of the United States Treasury. Q How long have you been so employed? A About three and a half years, sir. Q And where are you stationed now? Where is your permanent office? A In Washington, D.C., sir. Q And before you went with the Alcohol, Tobacco and Firearms, what experience did you have with firearms? A For nine months previous to my employment by Alcohol, Tobacco and Firearms, I was employed by the Smithsonian Institute in Washington, D.C., as a custodian for the firearms study collection of the Museum of History and Technology. Q Did you have any experience in the military with firearms? A Yes, sir. For 20 years prior to that I was in the military. The last assignment, the last number of years, a third of my military career, was with the special forces, where I did have a great amount of training and business to do with firearms, sir. Q Now prior to today, have you had occasion to examine the defendant FAL Fabrique Nationale Rifle, Serial No. 40199? A Yes, sir. Q And did you have occasion to examine the Browning Automatic Rifle, Serial No. 1176873? A Yes, sir. Q Where did you perform those examinations? A In Washington, D.C., sir. Q Now regarding the Browning, there's no question but that's a gun that was designed to and does fire fully automatic, is there? A Yes, sir. Q It is such an automatic gun? A Yes. Q Now will you tell us about the FAL. A The FAL is a normal military configuration rifle, a 7.62 NATO caliber. Normal components are there with the exception of some changes that have been made. The sear trip, which is the part in the weapon which is designed to trip the automatic sear so that the gun will operate in a fully automatic mode, has been welded in place in the receiver and then has been cut off so that it does not function. Q Did you have occasion to fire either one of these two firearms, the BAR or the FAL? A I did not fire the BAR, sir, and the FAL would only fire semi-automatic. I did fire it. Q But as far as being designed to fire automatically it was so designed? A The FAL, sir? Q Yes. A Yes, sir. MR. DIER: That's all I have, your Honor. THE COURT: Mr. Sykes? MR. SYKES: Yes, sir. THE CLERK: Your Honor, Plaintiff's Exhibits 1, 2 and 3 have been marked for identification. (The exhibits referred to were marked Plaintiff's Exhibits 1, 2 and 3 for identification.) THE COURT: Very good. CROSS EXAMINATION BY MR. SYKES: Q Now, Mr. Scroggie -- did I say that right, Mr. Scroggie? A Scroggie, sir. Q Scroggie. You came out from Washington to appear on this case as a gun expert? A Yes, sir. Q And you've taken this FAL and you have fired it, and it would only fire semi-automatically? A That's correct, sir. Q It's not a machine gun? A A machine gun by design and birth, sir. Q Now how do you know that? A From information we got from the FN Factory, this particular weapon was one of 100,000 units that was ordered by the West German Army in 1957. It was ordered as a machine gun. MR. SYKES: All right. Now that would be hearsay, your Honor. Q Do you know anything of your own knowledge that this particular gun by serial number was built as a fully automatic weapon? A Yes sir, for the parts that are in it. Q In other words, you've looked at it and you can tell by looking? A Yes, sir. Q Now who remanufactured -- THE COURT: Mr. Sykes, he is an expert and, of course, an expert can base his testimony on hearsay. MR. SYKES: That's right, but when his testimony is as to the age of a person, that's a fact, and he is saying that this gun, your Honor, was one of 100,000 made for the West German Army, and it was originally made, according to his testimony, as a fully automatic weapon. That's what he said. Q Now I will ask you something else, Mr. Scroggie. That gun has been changed; isn't that true? A It's been altered, yes, sir. Q Wouldn't you say it's been remanufactured? A No, sir. Q Who made the alterations and changes? A I have no idea, sir. Q Then you don't know whether or not some person who manufactures guns made those changes? A No, sir, I would have no way of knowing. Q And if a manufacturer of guns made the changes, then the gun would be manufactured or remanufactured as a semi-automatic gun; isn't that true? A No, sir, I wouldn't think so, sir. Q Can you explain that answer? A Yes, sir. The operation or the alteration that's been made on the gun is an alteration that can be made by any gunsmith or anybody with a small knowledge of welding, sir. Q The gun now is not readily restorable, is it? A It would be readily restorable to me as an expert in firearms. Perhaps, to a person that's not knowledgeable in firearms, it would not be readily restorable. Q You would have to do some machining, and you would have to make some new parts? A Yes, sir, you would have to install new parts and you would have to grind out the part that was welded in place, sir. Q Now are you familiar with FAL's in general? A In general, yes, sir. Q And do you know then that there are 1,800 FALS that you people have decided would not have to be registered? A Yes, sir, I'm aware of this; yes, sir. Q And as long as it has a certain serial number, you people have classified some FAL's as legal, and if they have other serial numbers, you classify them as illegal? A That's correct, sir. Q Now do you know how that one got into the United States? A No, sir, I do not. Q And we would assume, wouldn't we, that it was imported? A Yes, sir. Q And again you are ignorant of how the modification was made? A That's correct, sir. Q That looks like a factory-type modification, doesn't it? A No, sir, not really. Q Not really? A No, sir. Q Tell me about that. A It was done by a very knowledgeable person, but the FAL factory does not ordinarily make modifications of this nature. Q How do you know that? A From talking with people at the plant, sir. Q Have you ever been at the plant? A Yes, sir, a number of years ago. Q Where is the plant? A In Herstal, Belgium, sir. Q This one doesn't have a selector switch, does it? A No, sir, it does not. Q And the legal FAL, the 1,800 of them, has a selector switch? A Some do and some don't, sir. There are some I've seen that do not, sir. MR. SYKES: Now, I have some guns that I want to mark, and I would like a stipulation that they he returned to the at the conclusion of the trial from Mr. Dier. MR. DIER: So stipulated. THE COURT: All right. Very well. (Brief pause.) BY MR. SYKES: Q You are familiar with the numbers or the groups of numbers on the legal FAL, aren't you, sir? A Not that familiar that I could pick them out without using the list, no, sir. Q Well, I will represent to you that this is a legal FAL, and it is on the list of legal guns. A That's not a FAL. Q It is not a FAL, no. THE COURT: Mr. Scroggie, will you check to make sure it is not loaded. THE WITNESS: That's not a FAL. That's an American weapon. THE COURT: What was that? MR. SYKES: We have several here. THE COURT: That's an M-16. THE WITNESS: It must be an AR-180, your Honor. THE COURT: AR-180. THE WITNESS: Armalite. BY MR. SYKES: Q Mr.Scroggie, take this/gun and make sure that it is unloaded. (Brief pause,) Q And tell us what that gun is. A This is a FAL caliber 7.62 NATO rifle, sir. Q And is that a legal one, too, so far as you can tell? A Without checking the list, I would have no way of knowing, but if you tell me it is, I believe that it is. Q By changing the selector switch and the secondary sear, you make that into a machine gun; isn't that true? A Yes, sir. Q And you can do that in about five minutes? A Yes, sir, it would take a few minutes. Q And it would take you hours to convert Mr. Arnold's FAL? A It would take a considerable amount of time, yes, sir. Q Maybe even a day, and you might mess it up and ruin it? A Conceivably, yes, sir. Q Now we have another gun, an Armalite gun, would you look at that? A (Witness complying. ) Q Now will you make sure it is unloaded. A (Witness complying.) Q Now describe that gun. A This is an Armalite AR-180 rifle, sir. Q And is it a semi-automatic gun? A Without testing, I can't tell you but probably, yes, sir, most likely. Q Assuming that it is, could you convert that into a fully automatic gun? A Yes, you could do it; yes, sir. Q And you could do it by adding parts and without machining anything in that gun; is that true? A Generally, yes, sir. Q And if you had the parts, you could do it in a matter of a few minutes? A Yes, sir. Q And that's true of numerous semi-automatic guns that you folks call legal today? A That's true, sir. Q And that gun is a legal gun to be sold today? A Yes, sir. MR. SYKES: Excuse me, your Honor. (Brief pause,) BY MR. SYKES: Q Now you have the manual on the FAL in your library? A In our library, yes, sir. Q Did you bring one along with you, so you could be able to testify? A No, I didn't. Q You are familiar with it, then? A Fairly, yes, sir. Q All right, And it is the FN light semi-automatic rifle caliber 308? A Yes, sir. Q And that's what this is, the gun you are trying to forfeit? A No, sir, that gun was built as a fully automatic weapon, sir. Q This isn't a semi-automatic weapon? A It's semi-automatic in operation now, yes, sir. Q All right. I will ask you if the manual on the first page on the first line on the FAL states: "All rifles sold in the United States are of a special new American model designed to fire semi-automatically only." Now do you recall that language in the manual? A Yes, words to that effect; yes, sir: Q This one fires only semi-automatically; isn't that correct? A This particular one does, yes, sir. Q And the one you have in front of you that is legal fires semi-automatically? A In its present condition, yes, sir. Q And the only difference between the one that you have in front of you that's legal and Mr. Arnold's gun is that Mr. Arnold's gun would be more difficult to make into a machine gun? It would take maybe a day's hard work with a machine shop? A It's more difficult to make it fully automatic, yes, sir. MR. SYKES: All right. Excuse me, your Honor. (Brief pause.) BY MR. SYKES: Q Now, Mr. Arnold's gun, certainly, you wouldn't say can readily be restored to use as a machine gun, would you? A In general, yes, sir, that's a correct statement. Q Would you use the word "readily" in the case of Mr. Arnold's gun? A Oh, that would be a point of law I don't think I'd be -- MR. DIER: May I interrupt, your Honor, and can I approach the clerk and hand the court a copy of the statute? THE COURT: I have a copy here, but I'll take another one. The print may be a little larger in the one that you're handing me. BY MR. SYKES: Q Now whoever remanufactured that gun, the FAL, obviously intended for it to remain a semi-automatic gun; isn't that true? A Yes, sir. Q He made it very difficult to convert into a fully automatic gun? A Yes, sir. Q Now there are maybe a couple of million M-1 carbines in this country in the hands of individuals; is that a statement within your knowledge? A There's a good many of them, yes, sir. Q All right. And the M-1 carbine can be converted into an M-2 carbine, a fully automatic weapon, by merely exchanging some parts which are readily available; isn't that true? A That's correct, sir. Q And you don't have to do any grinding, any machining or anything like that to make an M-1 carbine, which is legal, into an M-2 carbine, which is illegal? A That's correct, sir. Q And therefore you people keep your eyes out for the conversion kit and you have determined that the conversion kit for the M-2 carbine fits this statute and is the combination of parts from which a machine gun can be assembled; isn't that true? A That's correct, sir. Q Now certainly you can't make a machine gun out of the parts we have of Mr. Arnold's FAL; you need more parts, and you need to machine things; isn't that true? A To make the gun fully automatic, yes, sir, you would need to do some things to the gun. Q And you base your view that that particular gun was originally manufactured as fully automatic, because you heard from somebody that 100,000 guns were manufactured as fully and semi-automatic guns for the West German Army? A That's correct, sir, by a telegram we sent to the Browning factory and the reply from the Browning factory, sir. Q And did it include the serial number on that gun? A Yes, sir. Q Do you have that message? A I have a copy of it, yes, sir. Q All right. Could we see that? A All right. MR. DIER: May the witness look at his file? THE WITNESS: It's in the papers I gave you yesterday, Mr. Dier. THE COURT: Why don't you just step down, Mr. Scroggie, and maybe you can assist him in finding that communication. (Brief pause.) MR. DIER: Apparently, your Honor, I have the copy of the message on my desk upstairs. MR. SYKES: We can get along without it until after the recess, your Honor. MR. DIER: We will bring it along. THE COURT: All right. BY MR. SYKES: Q Now you say many years ago you were at the FAL Factory or the FN Factory back in Belgium? A Yes, sir. Q Were they manufacturing this particular gun at that time? A It was in production at that time. However, I do not believe they were making it for the German Army at that time. They had by that time began to adopt the Heckler and Koch version of the Cetme rifle as their standard firearm; sir. Q All right. Let's talk about the FAL's. Did you see any of them going down the assembly line? A Not at that time, no, sir. Q Well, at any time had you seen any of them going down the assembly line? A No, sir. Q All right. Now from looking at these guns and from studying them and reading about them, do you know that all of the guns, whether they fire semi-automatically or whether they fire semi and fully automatically, have the letter "A" near the selector switch? A Yes, sir, they do. Q That's a safety selector switch. It's got a position for safe, and it's got a position for semi, and it's got a position for fully automatic; isn't that true? A Yes, sir. Q And even the ones that are manufactured as semi- automatics have the same marking on the side of the receiver there? A Yes, sir, at that time they did manufacture one receiver, They use it for both the select-fire weapon and the weapon that they left the parts out of to make it fire only semi-automatic, yes, sir. Q And the factory then, depending on orders, if they wanted a machine gun, they would put the machine gun parts in it, and if they wanted a semi-automatic gun, they would put the semi-automatic parts in it? A They would leave the fully automatic parts out, yes, sir, using the same receiver; yes, sir. Q All right. And, again, with respect to Mr. Arnold's gun as it comes today, it is semi-automatic, and you don't know who made the changes or where the changes were made? A That's correct, sir. Q And they appear to you to be changes made by someone knowledgeable of guns? A Yes, sir. Q And the changes have made the gun a safer gun, when you worry about guns being converted to machine guns, than your legal FAL, which is lying there before you? A I would say it would be more difficult to convert that -- reconvert that gun to fire fully automatic than it would be this, yes, sir. Q And the reason why you want this gun forfeited is because you believe that this gun was originally manufactured as a machine gun and delivered to the West German Army as a machine gun, and that's the basis of your decision to take away this gun? A Well, it's not my decision, sir, to make but -- Q Well, when I say "you people," I am talking about the Alcohol, Tobacco and Firearms people. A Yes, sir. Q And then you just have to forget about whether or not the change was in the nature of someone remanufacturing the gun or not? A I don't think I'm qualified to answer that question, sir. Q And you know that guns are often remanufactured and given new serial numbers and changed to different calibers? A Yes, sir. Q And that there were several guns imported from Ireland that were originally Webley cartridge guns that were modified to fit a Colt; do you know about any of those guns? A I don't know what you're speaking about there, sir. Are you speaking about the Webley revolvers that were 455 originally? Q Yes. A And remade to accept .45 caliber cartridges and half-moon clips? Q Yes. A Yes, sir. Q And those guns were then remanufactured by the Irish Government, and that's the way you people classified them, as being remanufactured; isn't that true? A This I have no knowledge of, sir. MR. SYKES: All right. That's all we have of this witness at this time. THE COURT: Redirect, Mr, Dier? MR. DIER: Yes, your Honor. REDIRECT EXAMINATION BY MR. DIER: Q Could you tell me, Mr. Scroggie, exactly what differences there are between Exhibit 1 for identification, which is the defendant FAL, and the other FAL, that is in front of you now? A The exhibit FAL bears a manufacturing date stamp and also a German acceptance stamp. The date stamped is 10/57, which indicates the weapon was made in October of 1957, and the German Army acceptance stamp is on the weapon itself, indicating it was delivered. Q As far as the internal mechanisms are concerned, what are the differences? A The parts that make this weapon or could make this weapon or enable this weapon to fire full automatic are not there. Q By "this weapon," you are talking about the weapon in front of you? A Yes, this weapon in front of me. MR. DIER: Your Honor, may we mark this so that we are clear for the record? THE COURT: Let's mark that as Defendant's A for identification. That's the legal FAL; is that right, Mr. Scroggie? THE WITNESS: Yes, sir. (The exhibit referred to was marked Defendant's Exhibit A for identification.) THE COURT: Why don't you read the serial number of that FAL into the record. THE WITNESS: Serial No. G1602. THE BAILIFF: Which one? He has two of them here. THE WITNESS: This is the FN. MR. SYKES: Let's mark the Armalite then as Defendant's B, THE COURT: We will mark the Armalite as Defendant's B, and would you read the serial number of the Armalite into the record. (The exhibit referred to was marked Defendant's Exhibit B for identification.) THE WITNESS: Yes, sir. The Armalite AR-180. -- MR. SYKES: Could we ask the witness to speak up a little louder? Mr. Arnold is slightly hard of hearing, and I want him to be able to follow closely. THE COURT: All right. THE WITNESS: S0131. BY MR. DIER: Q You were going to tell me what the difference is in internal mechanisms, if there are any, between Exhibit A for identification and Exhibit 1 for identification, which is the gun under seizure. A The gun under seizure, the safety sear has been welded in place in the gun and then cut off to negate its function. Of course, welding in its receiver would negate its function anyway. Q In the normal FAL, what is the function of the safety sear? A To permit the weapon to fire fully automatic. It's to enable the weapon to fire fully automatic. Q Can you tell from examination now whether Exhibit A, which is the other FAL, has a safety sear in it? A No, sir, you can tell just by looking at the gun. The cut-out portion in the receiver, which is cut out to accept the safety sear, there's nothing in it. It's empty; therefore, the safety sear is not there. Q Now in order to take a FAL that was manufactured and designed to be fired fully automatic, and make it so it is only semi-automatic, is it necessary to weld the safety sear in there, or can you just remove it? A Just remove it, sir. Q Do you know any reason why the safety sear should be welded in there in the defendant gun? A To possibly prevent the insertion of a proper safety sear, yes, sir. THE COURT: Well, to prevent it from being used fully automatic? THE WITNESS: Yes, sir. BY MR. DIER: Q Were you involved in the decision-making process that made Exhibit A a "legal" firearm? A No, sir, I was not. Q You weren't consulted? A No, sir, I was not working for Alcohol, Tobacco and Firearms at that time, sir. Q Do you know when that decision was made? A Prior to my time of employment. I don't know exactly when, in the '60's, sir. Q Referring then to Exhibit 2 for identification, which is a BAR, can you tell me where the serial number is found on that gun? A It's in what they call the banner heading, the receiver of the gun, telling who made it and the address of the company. The serial number is in that block of writings. Q Did you have any difficulty reading the serial number on that gun? A No, sir. MR. DIER: Your Honor, I would move that Exhibits 1 and 2 for identification be received into evidence, and I would also, after Mr. Sykes has had a chance to see Exhibit 3 for identification, move for its admission. THE COURT: Any objection? MR. SYKES: No, sir. THE COURT: It may be received. MR. DIER: That is all I have of this witness, your Honor. THE COURT: Very well. Thank you, Mr. Scroggie. (The exhibits marked Plaintiff's Exhibits 1, 2 and 3 were received in evidence.) (Witness excused.) THE COURT: How many other witnesses will you be calling, Mr. Dier? MR. DIER: One more, your Honor. THE COURT: How long do you anticipate? MR. DIER: I would appreciate a few minutes to explore the legal FAL's. I don't know what those are until I can see them, and I think not more than ten minutes. THE COURT: All right. I have a doctor's appointment at 12:30, and it's after 12:00 now, and I ought to be back here by a quarter to 2:00, so we will recess until a quarter to 2:00. MR. DIER: Thank you very much, your Honor. THE COURT: All right. We will recess until 1:45. (Whereupon at 12:15 o'clock p.m., an adjournment was taken until 1:45 o'clock p.m. of the same date.) LOS ANGELES, CALIFORNIA, TUESDAY, APRIL 11, 1972, 1:45 P.M. - - - THE COURT: Call the calendar, please. THE CLERK: No. 71-2747-HP, United States of America v. One (1) FAL Fabrique Nationale Rifle and 72-642-HP, United States of America v. One (1) Browning Automatic Rifle. MR. DIER: Larry Dier for the Government, your Honor. MR. SYKES: Richard Sykes for the defendant, your Honor. THE COURT: Very well. Good afternoon, gentlemen. Would you like to call your next witness, Mr. Dier. MR. DIER: If it is agreeable to the court, I would like to recall Mr. Scroggie to identify another exhibit that we couldn't find this morning. THE COURT: Fine. All right. Mr. Scroggie. ROBERT J. SCROGGIE, recalled as a witness by the plaintiff, having been previously duly sworn, testified further as follows: DIRECT EXAMINATION BY MR. DIER: Q Mr. Scroggie, this morning we were looking for a copy of a teletype, and we found it. I would ask you to look at Exhibit 4 for identification and see if you can tell me what that is. A Yes, sir. Q Tell us that it is, please. A This is a Xerox copy, which I made myself on the Xerox machine from the original, which was an answer from a question that we put to the FN Factory in Belgium asking a trace on this particular FAL rifle No. 40199. This is the answer to that telegram. MR. DIER: I would request that Exhibit 4 for identification be received into evidence. THE COURT: Any objection? MR. SYKES: No, sir. THE COURT: It will be received. (The exhibit marked Plaintiff's Exhibit 4 was received in evidence.) MR. DIER: Nothing further, your Honor. MR. SYKES: Your Honor, I would like to reopen further cross, not recross. I would like to reopen. It's something I forgot. THE COURT: All right. Go ahead. CROSS EXAMINATION (Continued) BY MR. SYKES: Q Now that wire, whatever it is, that message, doesn't tell you whether that thing was designed as a machine gun or whether it was manufactured as a machine gun. It just tells you that that gun was in a group that went to West Germany? A Yes, sir. Q All right. And you think that it was originally designed as a machine gun from something else you've heard? A Well, from my knowledge, the standard FAL that was in service with the German Army at that time was only the select-fire model. They did not use it in the semi-automatic modes. Q Now you are a gun expert, and you also know the statute we are talking about, I take it; do you know the firearms statute? A I am familiar with it, yes, sir. Q And the gun in question, the FAL, certainly does not shoot fully automatically; that's true, isn't it? A In its present condition, that's right, sir. Q Wouldn't you have to say that in its present condition whoever put it in that condition designed it to be semi-automatic? A I would certainly say that anybody that put it in its present condition did not want it to fire fully automatic, sir. Q And he did a good job? A Yes, sir, it's a good job. Q You earlier said that this did not appear to be a factory job -- THE COURT: Be careful when you put that down. Make sure we have something on the table, Mr. Sykes. MR. SYKES: Yes, sir. Do you want me to put something under it? THE COURT: Yes, put something under it. MR. SYKES: Yes, sir. I'll put it back on the ground. THE COURT: All right. MR. SYKES: That's all right. Q You earlier said that maybe it wasn't a factory job? A In that connotation, sir, I took you to mean that it was done at the FN Factory. It could have been a factory job, and it could have also been a job by any knowledgeable gunsmith. Q If I told you there were 3,000 guns exactly like that one available for import a few years back, would that then make you think it was a factory job? A I would have no reason to disbelieve you, sir, and with 3,000 of them, still a knowledgeable gunsmith could have done it, and it could have been a factory job if you say, sir. Q I see. But in any event the person who put the gun in the condition it is today intended that not to be a machine gun? A Yes, sir, they intended it not to fire fully automatic. Q And using the words "readily restored," that certainly is not something that can be "readily restored"; isn't that true? A In general, yes, sir. Q Now you base your position here that that should be illegal notwithstanding these features we've just discussed, because you believe that the original FAL's were designed as machine guns; is that right? A That's correct, sir. Q Now do you use books in your business? A Yes, sir. Q Are you familiar with The Book of Rifles by W. H. B. Smith and Joseph E. Smith? A Yes, sir. Q Have you read that as a reference book to enlarge your knowledge in this field? A Yes, sir. Q I will read to you at page 122, and you tell me if you agree with this. This is under "FN FAL Rifle" -- and that's what that is; isn't that true? A Yes, sir. Q "This weapon is the most widely used post-war military rifle and un- doubtedly one of the best." Do you agree with that? A It's a very fine weapon, yes, sir. Q "Originally introduced in the German 7.92 mm short cartridge, this weapon is currently used by more than 30 countries, including Belgium, Great Britain, Canada, Australia, New Zealand, South Africa, Israel, Peru, Argentina, Venezuela, Cuba, Austria, Chile, The Netherlands, Ireland, Portugal, Syria, Luxembourg and Ecuador." Does that sound about right? A Yes, sir. Q "The weapon is essentially a modi- fication and improvement of the earlier FN semi-automatic rifle." Do you remember that? A Yes, sir. Q Well, wouldn't you say the original design then was as a semi-automatic rifle? A No, sir, because the original design they're talking about there is the Model 1949 FN, which was a semi-automatic weapon, and they redesigned this weapon to permit it to have a fully automatic capability, although some of the countries that you did name do not use it normally in its full operation or the full automatic version, sir. The parts are retained in the weapons room, where the unit commander has the prerogative of saying whether his troops will have fully automatic weapons or semi-automatic weapons according to the tactical needs. Q And they just change those little parts which are illegal to have in the United States? A Yes, sir. Q There are just two parts, and you can put them in your pocket? A Well, in normal ones that are used by the military, they only need the one part, because they normally insert the selector safety lever, sir. Q But your legal FAL, like the one we have here, needs two parts? A That's correct, sir. Q This one that you postulated as illegal needs to go to a pretty good gunsmith, and he has a big project? A That's correct, sir. Q All right. I will read further. I'll read that one line again. "The weapon is essentially a modi- fication and improvement of the earlier FN semi-automatic rifle. It was tested in the United States as Model 48. Har- rington and Richardson made some 900 for the United States Government and a total of 3,303 were purchased from FN by the United States for field use. The weapon comes in a number of basic models, and there are numerous differences regard- ing handguards, flash depressors, et cetera. Although the rifle may be made capable of either automatic or semi-automatic fires, many countries use only a semi-automatic version as a basis individual weapon. A commercial weapon of the semi-automatic rifle is currently being sold in the United States by Browning Arms Company." Does that all sound like something you've heard before? A Yes, sir. Q Now it is true that Browning imported a whole bunch of these that you call legal, and then sometime in 1963, your people decided you didn't want any more sold; isn't that true? A To the best of my knowledge, yes, sir. (Brief pause.) Q Now an Armalite gun converts to fully automatic easier than Mr. Arnold's gun; isn't that true? A Yes, sir. Q Tell me what this is. A This is the Model 62, I believe, the Finnish Model 62, which is a semi-automatic version of the Finnish made AK-47 or the AK-47 type weapon. Q All right. Is that gun a legal gun to sell in the United States? A Yes, sir, this one is. Q And that's because it will fire only semi-automatic? A Yes, sir. Q It can be converted again with a conversion kit, with a few parts; is that right? A No, sir. Q You think it can't be converted? A Not normally. This particular gun does not contain the cut-out in the side to permit the insertion of the normal sear trip that comes with the fully automatic version of the gun. Q Now to convert that gun, you have to cut a little hole on the side? A There's a milling operation that needs to be done down the side, yes, sir. Q That's all? A Yes, sir. Q And a couple of parts? A Yes, sir. MR. SYKES: All right. That probably should be marked, your Honor, as Defendant's C. THE COURT: Very well. The last weapon referred to will be marked as C. (The exhibit referred to was marked Defendant's Exhibit C for identification.) THE COURT: Why don't you check those to make sure they're not loaded, Mr. Scroggie. (Brief pause.) BY MR. SYKES: Q What is that? A This is the sporter model of the Colt AR-15. Q And is that semi-automatic? A Yes, sir. Q Is that legal? A Yes, sir. Q Can that be converted? A Not without extensive milling inside the receiver, the lower receiver, sir. Q All right. It can be converted, though? A Yes, sir, it can be with milling. Q And made into a machine gun? A Yes, sir, it can be. Q Now so far every gun we've introduced can be made into a machine gun? A Yes, sir. Q And there's only one illegal gun in the room in your eyes? A I don't know about the rest of the guns. There's a BAR down there that's fully automatic. Q Assuming that the BAR is already a machine gun and it's registered, other than the BAR every gun here is a semi-automatic gun? A Yes, sir. Q And every gun you believe could be converted to fully automatic? A Well,just about any auto-loading firearm can be converted to fully automatic fire with enough works in it. Q All right. Now are you familiar with a letter that went out from Mr. Dwight E. Avis, the Director of the Alcohol and Tobacco Tax Division, to Mr. John B. Browning, President of Browning Arms, in July of 1972 concerning the FAL? THE COURT; Not July of '72. MR. SYKES: Well, it says July of '72. It's obviously wrong. Q I will show it to you, and I will ask you if it's something you've seen before. (Brief pause.) MR. SYKES: You're right, Judge. The date hasn't occurred yet. THE COURT: Just mark that letter defendant's next for identification. THE CLERK: Defendant's Exhibit D, your Honor. THE COURT: D. THE CLERK: D as in dog. THE COURT: D as in dog. (The exhibit referred to was marked Defendant's Exhibit D for identification.) BY MR. SYKES: Q Have you seen this letter? A No, sir, I have not seen this particular letter. Q I will save it then, and we will do something with it later. Are you familiar with the M-14M rifle? A Yes, sir. Q That was originally designed as a machine gun? A Yes, sir. Q And the M-14NM, what about that? A It's the same receiver. Q Are you familiar with that? A Yes, sir. Q Now that gun was originally designed as a machine gun, and it has been modified and is now being sold as a sporter semi-automatic rifle; is that correct? A Not to my knowledge, sir. Q Are you in the Army Reserve? A No, sir, I'm not. Q Are you familiar with Army regulations about guns? A Somewhat, yes, sir. Q Do you know or have you heard that M-14's are being sold all over the country by the thousands after being converted merely by welding the selector switch into the semi-automatic position? A If it's being so done, I'm not aware of it, no, Q I'll just have you look at this. This will be F. I'll just mark it for the time being. This is Army Regulation 9-20-25. THE COURT: We will mark that F for identification. THE CLERK: E or F, your Honor? THE COURT: There's no E. We'll mark it E. What has been referred to as F, we will mark E. (The exhibit referred to was marked Defendant's Exhibit E for identification.) BY MR. SYKES: Q Now that's a true copy of an Army regulation, and if the Army is correctly quoting your boss, then your boss has decided that by welding the certain parts of the M-14, it could be sold as a sporter to civilians isn't that true? A According to this regulation; however, I'm not aware of any such release of weapons by us, sir. Q And that certainly was a gun that was originally designed as a machine gun; isn't that correct? A That's correct, sir. MR. SYKES: I will move to admit that, your Honor. MR. DIER: I'll object on the basis there has been no foundation for it. MR. SYKES: All right. THE COURT: Well, you can check quite readily, can't you, Mr. Dier, to see if this is a valid regulation? MR. DIER: I can at a recess. MR. SYKES: Well, I think we can lay a sufficient foundation, but let's just keep it for identification while Mr. Arnold testifies. THE COURT: Is this a regulation in the Code of Federal Regulations? MR. DIER: I'm not familiar at all with it, your Honor. MR. SYKES: That's okay, your Honor. THE COURT: All right. BY MR. SYKES: Q Now just so we go over it again, you agree that the FAL which we have under discussion, this machine that comes in a model semi-automatic and a model semi and fully automatic, was developed from the FN rifle? A Yes, sir. Q And the FN rifle was a semi-automatic rifle only? A The Model 49, yes, sir. Q And you agree that whoever put Mr. Arnold's gun that you want to take away from him in its present condition intended for that to fire only semi-automatic? A Yes, sir. Q And that he did a good job? A Yes, sir. Q In fact, of all the guns other than the Browning that we have in court today, it would be the most difficult to put into the machine gun category; isn't that true? A No, sir. Q Which one of these other guns do you think would be more difficult? A This one here, the AR-15 sporter. Q The one that hasn't been marked, the AR-15? A Yes, sir. Q Have you ever tried to convert an AR-15? A Yes, sir. Q And have you been successful? A Yes, sir. Q And how long did it take you? A Oh, a number of hours, It was -- it took most part of a day, sir. Q And certainly, I take it then that you regard the AR-15 as not readily convertible? A That's correct, sir. Q Now if that's the one that is more difficult than Mr. Arnold's gun, which you call illegal, then I take it that the other three guns are easier to convert, the Armalite, the AK-47 and the legal FAL? A The Armalite easier, the M-62 or the AK-47, as you call it, about the same par, and the legal FAL, of course much easier, so-called legal FAL. Q And the M-1 carbine, considerably easier? A It's on a par with the admitted FAL, yes, sir. Q In other words, it's on a par with the legal FAL? A It is merely inserting parts, yes, sir, Q And every one of those guns are legal guns? A Yes, sir. MR. SYKES: That's all. Excuse me. I think we should have the gun in front of the gentleman marked next in order, your Honor. THE COURT: We'll have that marked F. Do you want to describe that weapon that's in front of you? THE WITNESS: It's a Colt AR-15 sporter, Serial No. SPO1627. THE COURT: Thank you. (The exhibit referred to was marked Defendant's Exhibit F for identification.) REDIRECT EXAMINATION BY MR. DIER: Q What do you mean when you talk about a legal FAL? A I meant the ones that are bearing the serial numbers that we did not prosecute over, the so-called legal FAL, using Mr. Sykes' terminology, sir. Q Are you implying by that that there is something physically different that makes that gun not designed to shoot fully automatic? A No, sir. Q What are you implying when you use that term? A I was merely using the same terminology as Mr. Sykes was using to answer his questions. Q Do you understand what he means by that term? A Yes, sir. Q What does he mean as far as you understand? A To me he means a gun that is legally importable into the United States and is legal for a person to own. Q Are there any such guns being imported today? A Not of that type now, no, sir. The new FAL, the new semi-automatic FAL, being produced by Browning does not contain the cut-out to allow the insertion of the secondary sear, the safety sear. Q Do you know the circumstances under which the guns like the "legal FAL" were imported into this country? A Just through talk at the office, sir. I was not working for the Treasury, an employee of the Treasury, at that time. MR. DIER: Thank you. THE COURT: Anything further, Mr. Sykes? MR. SYKES: Yes. RECROSS EXAMINATION BY MR. SYKES: Q Now the new FAL that's being imported as the sporter is in every respect identical to this highly convertible FAL except that there's no cut-out to stick in the secondary sear? A The safety sear, that's correct, sir. Q Well, the safety sear and secondary sear are the same thing. A I made a mistake when I said the secondary sear. The safety sear is what they term it. Q The safety sear is the additional sear needed to make a machine gun go? A Yes, sir. Q And you only need the selector switch to put it in the proper position to go? A That's correct, sir, Q And all you have to do then is cut a hole in the side of the receiver, and then you make this new sporter model identical to this one? A It would be a milling operation much the same to reconvert the FAL bearing the serial No. 40199. Q You only have to cut a hole in the side of the receiver? A No, sir. You'd have to make a recess into which the secondary sear would fit, the safety sear would fit. Q In this one you seem to think that the safety sear has had apart cut off of it, and it's been put in place and welded? A Yes, sir. Q Are you certain that that's a safety sear and not just a piece of metal that's been welded in there? A No, sir, it's a safety sear. You can see the cut-off and the place where the spring was. Q The end of it looks like it might be a safety sear? A Well, you can very readily see that it was by comparing it with a safety sear, sir. Q There is a considerably greater milling operation necessary for Mr. Arnold's gun than there would be for the new sporter model; isn't that true? A No, it would be the same operation, sir. MR. SYKES: All right. That's all. THE COURT: Thank you very much, Mr. Scroggie. (Witness excused.) THE COURT: Call your next witness, Mr. Dier. MR. DIER: The Government will rest at this point, your Honor. THE COURT: All right. Mr. Sykes? MR, SYKES:. Yes, sir. We will call Mr. Arnold. THE COURT: Mr. Arnold. JOHN F. ARNOLD, called as a witness by the defendant, having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SYKES: Q Mr. Arnold, let's get the Browning out of the way. You registered or attempted to register the Browning automatic rifle we have on the floor before you; is that correct? A The BAR? Q Yes, sir. A Yes. Q And that is your gun? A I presume so. They took it from my place. Q All right, And it appears now that you made a mistake in the last number of the serial number; is that a fair statement? A That's what appears. Q And you have always carried that gun in your gun register under the serial number which you registered it ending in an 8; is that correct? A That is correct. Q I take it that you did the best you could? A Oh, yes. Q How long have you been in the gun business? A 25 years. Q For how long have you been registering guns? A I have been registering machine guns since 1956. Q Have you ever had an error in the number registered to a machine gun either made by you or made by the registry in Washington? A I would guess about 20. Q Has the Government sometimes made errors in registering them when you would send them in with one number and they'd come back with a mistake in the number? A Not exactly. Q Go ahead and explain. A When I would purchase machine guns from another machine gun dealer and they would check, say, 200 guns to me, they might make an error and probably would in one out of every 100 guns shipped. When I got it and had to file a certain form showing receipt, I would have to correct -- I would have to file it under the correct number. That meant that the seller's filing and my filing did not match, so it would have to be resolved as to whether I had made the mistake or whether the seller made the mistake. In some cases, I would make it, and in some cases, they would make it. The Government can't make a mistake in effect, because all the filing starts with the seller or the buyer. Q All right. And did you have any problem correcting those errors? A No. The problem is it might take two or three months to get it all settled by paperwork, hut that would be all there would be to it. Q Prior to the time that the Government took this gun away from you, did you have any clue that the serial number which you registered it under was incorrect? A No. Q All right. So that's your only defense to that; isn't that correct? We don't have any other defenses. This is a machine gun, it belongs to you, you did register it, but you made a mistake with the last number? A That's all I can say. Q Evidently, a 3 looked like an 8? A Obviously, it did to me, or I wouldn't have written it that way. Q How is your eyesight, Mr. Arnold? A Not so good. Q How bad is it? A About 20/200. Q How long have you had eyesight problems? A Couple of years. Q And you did your level best to get this right? A That's it. Q With respect to the FAL, let's talk about you as a gun expert. Tell us a little bit about your background, where you learned about guns, machine guns, how long you have been dealing in these things, that sort of thing. A I have been playing with guns ever since I was six or seven. I have been a dealer in guns, since 1946, '47, somewhere in there. I have been a dealer in machine guns officially since 1957, I believe. I'm currently a manufacturer of rifles and pistols. I've probably made about 50,000, 100,000 guns. I've designed guns. Q Have you done any writing in the field of guns? A Yes, I've written books and I've lectured on them, things like that. Q Have you ever been a manufacturer of machine guns? A Yes. Q Have you been licensed by the Federal Government and the state government to handle, possess and transport machine guns? A Yes. Q And you have imported machine guns of all sorts? A Oh, yes, all types. Q Now you know a little bit about the FAL? A I think so. Q Have you ever been to the factory? A Yes. Q When were you last at the factory? A Oh, about 10, 11 years ago. Q Have you actually seen an assembly line of these guns go through? And I am speaking of Exhibit A which is a FAL semi- automatic that we've been calling a legal FAL. Have you seen those go through on an assembly line? A Yes. Q And do you agree with the Smith brothers, father and son Smith, whoever they are, and their Book of Rifles? A They're not related. Q Do you agree that the FN, was a development of the FN semi-automatic rifle? A Yes. Q That the prototype was a semi-automatic gun? A To the best of my knowledge. Q Now you've seen FAL's that were machine guns and you've seen FAL's that were semi-automatic guns coming off the same assembly line; is that correct? A That is correct. Q Have you talked to the people who were then producing them and designing them? A I've talked to the people who were producing them; people who have done design work would be at different times. Q You have talked to the design people at some time? A Yes. Q Now with respect to those guns as they get off the assembly line, how do they make some into fully automatic guns and others into semi-automatic only? A Well, I wouldn't know every type of procedure used but one method is simply to leave out two of the parts. Q And can you make this Exhibit A, which we have referred to as the legal FAL, into a machine gun with two small parts in about three minutes? A That's correct. MR. DIER: I think the record should show, your Honor, that that is Exhibit C, not Exhibit A. MR. SYKES: It says Exhibit A. MR. DIER: Then we have a difficulty, because I had on my list A and B as the FAL that we are seeking to forfeit and C as the BAR. THE COURT: No, the FAL; you are seeking to forfeit is Exhibit 1, and the BAR is 2. MR. DIER: Thank you, sir. BY MR. SYKES: Q Have you seen this gun in this very building within the last week? A Well, if you have a FAL in your hands, yes. Q All right. I will bring it closer to you. What are the two parts you need to change this gun into a machine gun? A You need a safety sear, or I prefer to call it a secondary sear, and a switch lever. Q And with those two parts there's no machining, no milling or anything else? A No, you just break the gun, drop them in and close it up again. Q Now I have here in front of me Exhibit E which is Army Regulation 9-20-25 entitled "Marksmanship Rifles, M-14M and M-14NM for Civilian Marksmanship Use." Did you give me this? A I did. Q Where did you get it? A I don't know exactly. I think I got it out of -- I had one of my friends get it from a National Guard unit. Q All right. Now I ask you something else, have you ever seen an M-14 converted as described in that Army regulation? A Yes. Q How many have you seen? A Oh, four or five. Q To your personal knowledge, are they being sold in the open market here in the United States, the converted model? A Well, they're being sold to -- as it says here, they're being sold to the members of the National Rifle Association. They have been sold to members of the National Guard. They, I believe, have been sold at the national rifle matches. They're not sold through local stores, but they're obtainable through the Army. Q Now you're familiar with gun regulations inasmuch as that's your business; is that correct? A Yes. Q Do these M-14's as converted pursuant to that Army regulation have to be registered so far as you know? A No. Q Now with respect to this conversion, in your opinion as an expert, how long would it take to take that M-14 which was designed as a machine gun and then make it into a semi-automatic gun pursuant to this Army regulation -- how long would it take to restore that to use as a machine gun? A With a file or a handy grinder, 15, 20 minutes. Q With respect to this FAL that the government wants to take away from you, in your professional opinion how long would it take to take that FAL and restore it -- or not restore it -- make it into a machine gun? A Without any parts from the factory, I would say, if no mistakes were made, it would probably take about four or five days with a machine shop. Q Has just about everything been done to that gun to keep it from being made into a machine gun? A As far as I can tell, it has. Q Now is the secondary or safety sear which is welded into place in that gun? A No, in my opinion as far as I could tell when I examined it the last time, it is very similar to a secondary sear, but it's just -- it's a piece of steel that was made up to specifically fit the slot where the secondary sear went. Q Where did you get that gun that the Government wants to take away from you? A I imported it from Parker-Hale. Q Tell the court about Parker-Hale. Who are they and where are they? A Parker-Hale is located in Birmingham, England, and I would say the primary manufacturer of guns in England. Q How many guns were available for you at that time at Parker-Hale of that exact type for importation? A One or two thousand. Q And did you have a desire to import them? A Yes. Q How many did you import? A Four. Q Were they all identical? A Yes. Q They all had this conversion? A That is correct. Q Did it appear to you that the conversion of this gun to insure that it would only fire semi-automatic was a factory job? A It looked it to me. Q Was it a good job? A Oh, yes, very professional. Q And to your knowledge, what happened to the remaining one or two thousand guns? A I understood they sold them to Biafra. Q Now the gun we brought down here, the AR-15 which is lying on the floor, that's your gun? A Yes. Q Can that be converted to fully automatic? A Readily so. Q How long would it take? A After you have made the part, about 30 seconds. Q How long would it take you to make the part? A Oh, an hour and a half. Q How about the AK-47 or the gun designed after the AK-47 that we brought down here which is marked C? That's your gun, isn't it? A Yes. Q And how long would it take to convert that gun? A I'd say about three hours. Q All right. And how about the Armalite gun? A Again, if you have the parts, just a matter of minutes. Q How long would it take you, Mr. ArnoLd, to convert an M-1 carbine to an M-2 carbine with the illegal parts? A Ten to fifteen minutes. Q All right. Now, I'm going to hand you this gun, which up to this point you are the owner of and is the gun marked Government's Exhibit No. 1, and ask you to describe to the court just what you'd have to go through to make that thing into a machine gun. (Brief pause.) A The place where the secondary sear goes is at this hinge pinpoint here (indicating). Maybe I should take that apart, too. (Brief pause.) THE WITNESS: Do you see the hole there (indicating)? THE COURT: Yes. THE WITNESS: This was about an eighth of an inch deeper, see. Well, it doesn't show very well, but anyway, this top part wasn't there (indicating). It was just milled down about an eighth of an inch. There's a tail that comes up through here and comes through that hole right here (indicating). There's no hole there now, of course. That's where the secondary sear went. That's part No. 1. The way this worked -- this is a lock for each gun (indicating). When the bolt is recoiled, it's in that position (indicating). When the bolt goes in the battery, it goes up like this (indicating), and this comes down and locks on this pin that's crosswise here (indicating). This -- (Brief pause.) THE WITNESS: I should take another one apart so you can see the difference. This surface back here has been partially milled away so that in the old type of gun as this come into battery, it kicked down the little point sticking up here, this end back here in this area did (indicating). When that kicked down -- there used to be another sear notch in here (indicating). In fact, there is a sear notch in here. This is not the hammer that came with this gun; somebody substituted. There's a sear notch here (indicating). There's one here, but there isn't in the gun that I received. Without that sear notch being there to hold it back in that position, once the ordinary sear is pulled, it fired. Not only has it been taken apart and put together incorrectly -- that's besides the point. Anyway, this is the sear. This is not the switch that was in the gun (indicating). This has been substituted by somebody else, because this slot that was in here was no longer a slot, It was a perfectly round surface. BY MR. SYKES: Q Now, what effort would it take to convert your gun, as it was back to a machine gun? A Are you speaking of this gun? Q Well, now, you've indicated there are some parts in this gun which have been substituted. Assuming your gun was in the position that it was, what effort would it take to make it into a machine gun? A Well, as I said, you would have to replace -- you would have to replace or remachine the bolt carrier. Q When you say remachine, you mean start out with a piece of metal and make a new one? A No, you could take a welder and weld it up back there, build it back up. In fact, I believe that this has also been replaced now that I look at it. It's been six years since I've looked at it, and as I remember, this step here was machined away (indicating). This step -- this trip cog or trip part was machined away. In fact, I know it was machined away. You'd have to rebuild this up with weld or build a new one and then remachine it to that configuration. This part here would have to be remachined with the slot in it (indicating). The hammer that I showed you would have to be remachined from the very beginning. It couldn't -- well, no, it could be built up with weld, with hard weld, and then remachined again. I would say it would take four or five days, the main problem being the receiver -- as I last saw it, the main problem being to get this additional part, I guess you would call it, out and get a little square slot cut down through the metal. That would take a great deal of work. Q All right. Now have you seen the sporter model which is currently being imported, which doesn't have the cut-out in the side of the receiver? A I know nothing about it at all. Q You've heard the description given here in court that it is like this gun except it doesn't have the cut-out on the side of the receiver so that you can stick the secondary sear in there? A It would appear that what is called the secondary sear position was just never made. That's the only change. In other words, it's like this now. Q What does it take to make that position? A Well, to do it easily, you'd have to set up and make one mill cut, countersink, and you'd have to come in the top and cut a square hole, which without special equipment would be difficult just like it would be with this. Q Now would you say that your gun is at least as difficult to convert as that one now being sold as you heard described here in court? A My gun as I had it, yes. Q Now Exhibit D is a letter, a copy of a letter, from Dwight E. Avis to Mr. John B. Browning. Have you seen that before? A Yes, I brought it in. Q And where did you get it? A I have no idea. Q Well, think real hard and tell me if you think it's a genuine copy of a real letter that was ever written. A Oh, in that respect, I got it from one or two or three of my friends, I don't know which one, who told me they got it from Browning. Q All right. Now have you looked at that letter? You've read it, I take it, of course? A Yes. Q Is it consistent with things you have heard from the Government about their position on the FAL and Browning as an importer? A I don't quite follow. Q Have you heard the sane type of talk from people with the Alcohol, Tobacco and Firearms Unit? A I don't think I've ever heard anything. Q You've had some letter from the ATFU people and you've talked to agents? A No, I don't think I've talked to agents. I may have had letters, but -- Q The last paragraph states: "There are a number of weapons in this country which were developed as full auto- matic, and at some later time other models of these weapons were introduced as semi- automatic only. This division" -- meaning the ATFU -- "did not consider such models as being machine gun category." Now have you heard that type of thing from the ATFU in any kind of a publication from anybody? A Well, I'll say for 20 years I have been arguing over this point with the head office in Washington, without resolving anything. Q All right. I think I have asked all the questions I know about, Mr. Arnold. If you have anything you want to tell the judge about our position in connection with the FAL, please remind me. A No, I believe that everything has been said. I don't particularly like the gun that I received here; it's been monkeyed with. The only thing that hasn't been monkeyed with is the part that was not monkeyable by ordinary circumstances, and that's the safety sear. Even so, the gun is no more convertible to a full automatic -- in fact, it is less so -- than a FAL that they call legal. Q All right. Mr. Arnold -- A If -- Q Go ahead. A If -- on the other hand, if they want to go back to the question of design, then I think the M-14 must be taken into account. I'm conceding their point for the purpose of argument. The M-14 was designed and manufactured as a full automatic weapon. You take a Torch, fly it for 30 seconds, and now they say it's legal, and that can be converted in five or ten minutes with a handy grinder or file. This can't. I don't think I have anything more to add than that. MR. SYKES: All right. Your Honor, I would ask for the introduction of Exhibit E. That's the Army Regulation. THE COURT: Is there any objection to E? MR. DIER: Yes, your Honor, I would like to reserve objection to that. We are attempting to find out now what our position on that regulation is, and I would ask the court to reserve the ruling on that. MR. SYKES: That's all right. THE COURT: All right. Very well. MR. SYKES: And then with the understanding that they can be removed from evidence at the conclusion of the trial, A, B, C and F, which are the four guns which we brought down here. THE COURT: Any objection? MR. DIER: No objection. THE COURT: All right. They will be received. MR. SYKES: Thank you, your Honor. (The exhibits marked Defendant's Exhibits A, B, C and F were received in evidence.) THE COURT: Mr. Dier? CROSS EXAMINATION BY MR. DIER: Q Mr. Arnold, you testified that you are familiar with the gun control regulations; is that correct? A If you will speak up, I'll answer you easier. Q You have testified that you are familiar with the gun control regulations; isn't that correct? A Of the ATU? Q Yes. A Yes. Q Have you ever owned a Thompson submachine gun? A A couple of thousand. Q Have you ever had them registered with the Alcohol, Tobacco and Firearms Division? A All of them. Q Have they been operable firearms? A Will you speak a little louder, please? Q Have these Thompson submachine guns been operable firearms at the time you owned them? A Both operable and inoperable. Q And those that were operable, could they be fired fully automatic? A Oh, yes. Q And you registered those? A Yes. Q All of them were fully automatic or just one of them? A No, all the Thompsons that I owned would be the model of the full automatic model. Q And they hadn't been worked on in a way similar to this FAL here had been worked on? A No, I sold them as completely operable shooting or completely welded as Exhibit D was or as unserviceables, meaning that they wouldn't shoot at all. Q The latter two categories that you just mentioned, did you have any dealings with the Alcohol, Tobacco and Firearms people on those guns? Did you have to register those, for instance? A Of which models? Q The last two categories you gave, the inoperable and the completely welded one I think you said. A Oh, yes, yes -- well, yes and no. I have to put it that way. It depends upon the time in history about which we are talking. Q How about since the Gun Control Act of 1968 has come into effect? Have you had to register those? MR. SYKES: Your Honor, that assumes that he had Thompsons since that time, and therefore that assumes a fact not in evidence. THE COURT: The objection is sustained. BY MR. DIER: Q Have you owned Thompsons since the Gun Control Act of 1968 came into effect? A Yes. Q Of which type, the fully operable or the inoperable one or some other kind? A Fully operable -- or I'd rather put it presumably operable. Q But you are aware of the fact that if you had a welded Thompson submachine gun, you still were required to list it and register it under the Gun Control Act of 1968? A Oh, definitely, Q Can you tell us what the difference is between a Thompson that's all welded up and this FAL, that's involved in our lawsuit? A The difference between -- state it again, please. Q In other words, do you know of any reason why you would have to register a welded-up Thompson submachine gun and you take the position that you don't have to register this FAL? A The Thompson, in addition to being a full automatic weapon and custom has so kept it that way, was illegal because of the barrel length, which was less than that required. In other words, it was under 16 inches, so I -- forgetting whether it was full automatic, semi-automatic or no automatic because of its 16- inch barrel, I would have had to have registered it, but I don't think that was the reason I did register. I think it was registered because it's been customary to register a Thompson. There is a model of 1927 Thompson that was ruled on by the ATU, for example, as being -- that's a semi-automatic Thompson -- as being a legal Thompson except that the barrel length was under 16-inches, meaning that if you increased the barrel length over 16 inches, even though it was a Thompson, it was still semi-automatic and therefore, was not required to be registered. Q Do you know what the initials FAL stand for? A Facile -- in my poor French, facile automatic legre. That means light automatic rifle. Q And do you know what the initials FN stand for? A I'm sorry. I didn't hear. Q Do you know what the initials FN stand for? A Yes, Fabrique Nationale. Q Is there any connection between the two? A One is a factory and the other is the name of a gun. Q Fine. The reason for my question, Mr. Arnold, is you've testified I think that the FAL was a development from an FN rifle; wasn't that your testimony? A Fine, FN could mean -- well, all right, yes. Go on. Q Can you show me what the receiver on that FAL in front of you is? What is the receiver? A This piece here (indicating). Q How would you describe it? What's its function? A It's a central part of a weapon to which the barrel is attached at one end, a stock is attached at the other in which the bolt operates back and forth. In this specific case, the magazine also fits into it. Q Is it not true, Mr. Arnold, that that receiver that you have in front of you and the receiver of the FAL rifle that is marked as Exhibit A were designed so that they could be used in a gun that would fire fully automatic? A Do it again, please. I'm not sure if I caught it all. Q Is it not true that the receiver in the FAL that you have in front of you and the FAL that has been received as Defendant's Exhibit A were designed so they could be used in a gun that would fire fully automatic? A Well, I don't like the word "designed." I would rather say manufactured. Q Manufactured. A It depends upon its point in history which would probably be the proper word to use. Q You are aware, are you not, that there are FAL's being manufactured now that can be brought into the country? A That can be brought in? Q That can be brought in. A Not until a couple of hours ago. Q You haven't dealt with any of those? A No, they're undoubtedly solely the proprietary property of Browning in St. Louis or Ogden, however you want to call them. MR. DIER: That's all I have, your Honor. THE COURT: Mr. Sykes? MR. SYKES: I have just a couple more. REDIRECT EXAMINATION BY MR. SYKES: Q Mr. Arnold, you determine what a thing is designed for on the basis of how it works; isn't that a fair statement? A Possibly. Q Now the receiver you have before you of your gun which has been taken away from you, looking at that receiver, is that a machine gun receiver or not? A What are we talking about? Q The receiver of the gun in front of you which is Government's Exhibit No. 1, which is your FAL that they're trying to take away from you. A Oh, all right. Q As that thing sits there today, is that a machine gun receiver or not? A No, it's not a machine gun receiver. Q And that gun, if you put it all back together, would it shoot automatically? A No. Q And that gun, can you readily restore it to shoot automatically? A No. Q You don't have enough parts there in front of you to make a machine gun, do you? A No. MR. SYKES: That's all, your Honor. THE COURT: Mr. Dier? MR. DIER: May I have this marked as plaintiff's next in order. THE CLERK: Plaintiff's No. 5. (The exhibit referred to was marked Plaintiff's Exhibit 5 for identification.) MR. DIER: Your Honor, I have a couple of things just furnished me, one dealing with our position, I think, on the M-14. Would this be a good time -- THE COURT: We will take a recess for ten minutes. MR. DIER: Thank you, your Honor. (Recess.) MR, DIER: I would withdraw my objection to Defendant's E for identification, THE COURT: Are those the Army Regulations? MR. DIER: Yes. MR. SYKES: Yes. THE COURT: All right. Very well, They will be received. (The exhibit marked Defendant's Exhibit E was received in evidence.) MR. DIER: And I would also offer the exhibits that we have marked 5 and 6 for identification. MR. SYKES: One of them is a self-serving document from the Treasury Department. That's all right. The other is a letter directed to Mr. Arnold from the Alcohol, Tobacco and Firearms people. That's all right. THE COURT: All right. 5 and 6 are received in evidence. (The exhibits marked Plaintiff's Exhibits 5 and 6 were received in evidence.) MR. DIER: Your Honor, I have nothing further. MR. SYKES: I have nothing further. THE COURT: All right. Fine. Thank you, Mr. Arnold. You may step down. (Witness excused.) THE COURT: Does the defendant rest, Mr. Sykes? MR. SYKES: Yes, sir. THE COURT: Any rebuttal? MR. DIER: No rebuttal, your Honor, We rest. THE COURT: Fine. All right. You may argue, Mr. Dier. MR. DIER: Thank you, your Honor. OPENING ARGUMENT ON BEHALF OF THE PLAINTIFF MR. DIER: First of all, our position on the BAR, it is our contention and I believe it is proven by Exhibit 3 in evidence that this BAR that is under seizure was not registered as a machine gun. It's been admitted that it was a machine gun. There has been testimony that the last number was mistakenly changed and a different serial number was registered, but it's the same gun. Our position on that is that it makes no difference whether that is true or that it is not true. In the forfeiture statute, except for the liquor forfeiture statute, the courts have no power to accept that equitable kind of evidence, and they have no power to give equitable relief. The only question in our position is whether or not this gun was registered, and if it was not, it must be forfeited. That remedy sounds harsh and it sounds strange. However, the courts have repeatedly held that as true, and if Mr. Arnold wants relief for this kind of mistake, he must get it from the administrative or executive branch of the Government. I can cite any number of cases recently that have held that in the Ninth Circuit here, as well as in other Circuits. So it is a clear proposition and rather unfortunate and the court might be inclined to give the gun back because of what appears to be a mistake, but that power rests only with the executive branch. So we come to the FAL. I would like to say -- first of all, I would like to have leave to file a brief trial memorandum. It came to my attention over the lunch hour that there is a case, United States v. Jacques, J-a-c-q-u-e-s, that was decided in the Western District of Washington but had not been reported. That is a copy of the transcript there. That case dealt with these guns, the FAL's that came into this country, and to give some of the history of what happened -- and I think it will be very informative to the court -- is that the essential holding there in that case was there was some administrative consideration given to Browning's application to import these guns, and later the Internal Revenue Service reversed itself but because there had been a large number of guns brought in, they gave assurances to Browning that they would not prosecute anybody for possession of these guns that were brought in during this two-year time period between 1961 and 1963, and the court up there -- THE COURT: Well, Mr. Dier, I'm really faced with just one question of fact as I see it in the case that involved the FAL, and that is whether or not that weapon can be readily restored to shoot automatically. MR. DIER: I would respectfully differ from the court, I think the language in the statute that we rely upon is the language in Section 5845(b). THE COURT: "Is designed to shoot"? MR. DIER: "Is designed to shoot," yes, your Honor, and it is to that language that I would want to cite this Washington case because in that case the gun, too, could not fire automatically and could not be readily converted. The court held that it was designed to shoot automatically, and therefore it was an unlawful firearm and would be forfeited. THE COURT: How can the Government justify its position as far as the accused rifle in this case is concerned when the evidence that has been presented in this court apparently shows that the other weapons that have been referred to and have been received in evidence are more readily and can more easily be restored or made to shoot fully automatic as machine guns? MR. DIER: The only answer I could have to this, your Honor -- or two answers, first of all, the Alcohol, Tobacco and Firearms people are working under a definite statute; perhaps, on occasion they misinterpret the language in that statute as to what they can do and what they cannot do. There's nothing before me to indicate that in good faith the Alcohol, Tobacco and Firearms people are not trying to regulate as much of the machine gun activity as they can regulate. Apparently they have taken a position that the other guns were not designed to shoot fully automatic. It is true they can be converted quite simply and that is one of the things that troubles me personally. I personally feel they should be put off the market but we are working under the statute, and the statutory language is "designed to shoot." THE COURT: Well, the so-called legal FAL apparently can be converted for fully automatic firing just in a matter of seconds with two parts. MR. DIER: Yes, and I again would cite the Washington case which uses this language: "However, the decision of the IRS is not to prosecute with respect to guns imported before the date of its later letter is a matter of executive grace, and the defendant cannot rely on it. The question before the court is thus whether on these clear facts the FN FAL rifles involved here are as machine guns within the meaning of the statutory term." The court went on and found that they are because it was designed to fire fully automatic. I think that is the same evidence that we have before us by Mr. Arnold and our witness; that the original design of these guns was so that they could be fired fully automatic, and this later alteration, our position is, does not change the original design and I think comes within the statutory language. THE COURT: Of course, Mr. Sykes' argument is that the accused weapon was remanufactured and redesigned so that it was not designed to shoot automatically. MR. DIER: Yes, I can understand that. THE COURT: What's your answer to that? MR. DIER: I think -- I don't think that's a correct argument because the gun was manufactured with the slot in it. There's testimony from the Government's side that there are FAL's now being manufactured that are designed not to shoot fully automatic, and those can come in. I think if we get to the point where we interpret this language to say that every time when some minor operation is done to a gun it is the remanufacturing of the gun, I think that's hypertechnical and not within the spirit of the law. The law is designed to control this kind of weapon. Exhibit 5 in evidence will show that Mr. Arnold, the claimant here, was well aware of the Government's position within the amnesty period. He knew that we considered these guns to be machine guns and still he chose not to register it. He's made almost no effort to have done so and there has been no penalty to him. So we don't think we are being arbitrary in this particular case. He knew what our position was and he chose not to follow it. THE COURT: Well, I haven't read the entire exhibit. Would you just take a red pencil and mark that pertinent portion of the exhibit that you just referred to, and I will read it. (Brief pause.) THE COURT: I've read Exhibit 6. MR. DIER: I think our positions are clear and our differences are clear, and I would submit it on the record we have. MR. SYKES: I'll be very brief, your Honor. THE COURT: Let me look at the serial number on the BAR. Is that on the outside of the receiver? MR. SYKES: Right on the top, Judge. (Brief pause.) THE COURT: The correct number of the last digit was 3? MR. DIER: Pardon me, your Honor? THE COURT: The correct number of the last digit was 3? MR. DIER: Yes, your Honor, THE COURT: Not an 8? MR. DIER: The correct number ends with a 3. THE COURT: Ends with a 3, all right. ARGUMENT ON BEHALF OF THE DEFENDANT MR. SYKES: And Mr. Arnold through his 20/200 vision evidently read that as an 8. Counsel says he has numerous cases he can cite to show that the Government can take this position, and he says that there are so many cases he won't bother to cite them. I can tell you that there's no case interpreting the Firearms Act in that way and indeed no case interpreting at all other than -- THE COURT: I think, Mr. Dier, if you look at that number you have to look at it closely to really determine if it's an 8 or a 3, when I first looked at it, it looked like an 8 to me. MR. SYKES: I'd better stop talking. MR. DIER: I can't dispute that, your Honor. MR. SYKES: Let me talk about the FAL, Judge I'll be very brief. This Machine Gun Act is clear and it doesn't make any sense if you insert the words "originally at the inception." That's the argument the Government has to take, and the words "originally at the inception" aren't in there, and the evidence is not clear that that is the case. It merely says, "A weapon that shoots." We don't have one except the BAR that shoots, and that has been registered, no argument. "Is designed to shoot" -- well, God in heaven, we've got one that can't shoot; somebody put it together so it won't shoot. It's been described by the Government in one of their exhibits that it has to be designed not to shoot, so it doesn't fit. "Or can be readily restored to shoot" -- well, this is the one that can't be readily restored to shoot. There's no question about that. Then the Government says, "Oh, my, what a terrible thing will happen to us. These people will get these guns and they'll change them all around and shoot up the country," but it's ten years in jail and a felony, you can never carry a gun again, to enjoy those things, if you've got the parts to make a machine gun. That's the way I see that statute. With respect to authorities, a District Court in Washington in some case found -- he says that a FAL to be a machine gun. I don't know whether it was a criminal case or a forfeiture case, but the District Court next door last week found a FAL identical to this one, which can be restored in three minutes -- in fact, less than three minutes by Mr. Arnold, but the Government expert said it would take about three to five -- found one identical to this but with a serial number that didn't fit the legal guns, and Judge Curtis found it to be legal on the basis of this statute because he said that this gun was not designed to be a machine gun because of the new sear. Even though it could be changed, it wasn't designed, and there's some authority if we're looking for authority. However, I don't think we need to do that. The facts are clear in this case; that that FAL is a semi-automatic gun, and semi-automatic guns are legal. You don't have to register them. But the other number -- I've just read all this business. All you've got to do is just register it and identify it. They make provisions for guns without serial numbers, All you do is tell them what they are. They knew what this gun was. They didn't have any problems. It's no secret to these people. There are, I believe, seven numbers in the serial number, and the one number easiest to misidentify is a 3 with an 8. That's the easiest to misidentify. Policemen will tell you that. 5's and 2's sometimes, but 3's and 8's are easiest, and that happened to a man who doesn't have perfect vision. THE COURT: Mr. Dier. CLOSING ARGUMENT ON BEHALF OF THE PLAINTIFF MR. DIER: My only comment, your Honor, would be that in the case before Judge Curtis the man was found not guilty, and I don't think there was any finding that that was a legal gun. MR. SYKES: Excuse me. Let me interrupt you. He did make that finding. We got the transcript. It hasn't arrived yet, but I'll tell this court that he did so state that that was designed as a semi-automatic gun, not a fully automatic gun. That's what he told us. And he made some -- you know, when he talks, before he decided the case, he said those words. It sounds like a finding to me. MR. DIER: I would submit it then, your Honor. THE COURT: All right. Very well, As far as Case No. 72-642, the case that involves the Browning automatic rifle, I'm satisfied and I'd find that Mr. Arnold registered that weapon; that according to the evidence that's been introduced before this court, the Browning automatic rifle which is the accused weapon here was the same weapon that he sought to register when by mistake he described the serial number of that weapon as having as the last digit an 8 instead of a 3. Of course, I've examined the weapon. At first sight, the last digit looked like an 8 to me, and I was only able to discern it was a 3 after closer examination. It is certainly reasonable as far as this court is concerned that what happened here was that an innocent mistake was made. It is only on close examination that what at first glance appears to be an 8 is discerned to be a 3. So the court will rule in favor of the defendant on the case involving the Browning automatic rifle. As far as the next case is concerned, 71-2747, the case involving the FAL rifle, first of all, I'd find that based on the evidence that's been introduced before this court that that weapon in its present condition cannot readily he restored to shoot automatically, and although it may have been originally designed to shoot automatically, it appears to this court that it was redesigned so that it was incapable of shooting automatically unless substantial work was performed on the weapon. As Mr. Arnold has testified, I believe he said it would take three or four days' work to restore the weapon to the point where it could be used as a machine gun, and there's also been testimony that the work that was done to redesign the weapon was done at a factory. It just seems to me that based on what I've learned in this case -- and this was the first gun case that I've had -- that it is just logic and reasonableness that compels the court to find that the accused weapon in this case does not fall within the definition of a machine gun, especially when you compare the accused weapon with the other weapons other than the Browning that have been marked for identification and admitted into evidence. I might also add that I was quite surprised to learn that all of these weapons that were introduced into evidence by the defendant were weapons that could be legally possessed in this country. I had no idea that all of that was permitted. Anyway, I rule in favor of the defendant and against the Government in the case involving the FAL rifle. Now, Mr. Sykes, you file with the court within three days proposed findings of fact and conclusions of law and judgment. Is there anything further? MR. DIER: Yes, your Honor. May I request at this time a stay of execution of the judgment so that we can get an opinion from Washington about whether or not we have to appeal? It's another one of these situations where we have to send back our recommendation and receive a response. THE COURT: All right. The Court will grant a stay. MR. DIER: Thank you, your Honor. THE COURT: How much time would you need? MR. DIER: In this case, I can probably get it within, assuming nobody's on vacation, I would think three weeks would do it. THE COURT: The court will grant a stay of 30 days. MR. DIER: Thank you. THE COURT: All right. Fine, But you will have that into me, Mr. Sykes, right away while I've got this on my mind. MR. SYKES: Yes, sir. THE COURT: All right. Thank you, gentlemen. That will conclude this matter, and the court will recess until called. MR. SYKES: Your Honor, will you make an order on the record before you go returning A, B, C and F to the defendant? THE COURT: All right. Those exhibits will be returned to the defendant for safekeeping. Now you hold those exhibits, Mr. Arnold. The Court of Appeals may want to examine them, so you are not to sell them until further order of the court. MR. ARNOLD: Yes, sir. It's part of my collection. THE COURT: They will be returned to you in your custody and to your safekeeping. All of them have been identified as far as serial numbers are concerned. We will recess until called. IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. ONE (1) FAL Fabrique Nationale Civil No. 71-2747-HP RIFLE, Serial No. 40199, Defendant, JOHN F. ARNOLD, Claimant. And Consolidated Case Civil No. 72-642-HP CERTIFICATE I hereby certify that I am a duly appointed, qualified and acting official court reporter pro tem of the United States District Court for the Central District of California. I further certify that the foregoing 92 pages are a true and correct transcript of the proceedings had in the above entitled cause on Tuesday, April 11, 1972, and that said transcript is a true and correct transcription of my stenographic notes. Dated at Los Angeles, California, this 16th day of May, 1972. [signed] Official Court Reporter Pro Tem