U.S. v. Jacques, partial trial transcript, Crim. No. 51375 (W.D.Wa September 11, 1968) IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WASHINGTON NORTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, vs. Number 51375 HERBERT ENGLAND JACQUES, Defendant. TRANSCRIPT of PROCEEDINGS Before the Honorable WILLIAM J. LINDBERG, United States District Judge Seattle, Washington September 11, 1968 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WASHINGTON NORTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, vs. Number 51375 HERBERT ENGLAND JACQUES, Defendant. Transcript of extract of proceedings had in the above-entitled and numbered cause before the Honorable WILLIAM J. LINDBERG, a United States District Judge, at Seattle, Washington, on September 11, 1968. A P P E A R A N C E S JOHN M. DARRAH, Assistant United States Attorney, Western District of Washington, 1023 United States Courthouse, Seattle, Washington, and TIMOTHY TUERCK, Senior Attorney, Regional Counsel's Office, Internal Revenue Service, 447 Sutter Street, San Francisco, California, appeared for and on behalf of the Plaintiff; and MURRAY B. GUTERSON, of Gulp, Dwyer, Guterson and Grader, 812 Hoge Building, Seattle, Washington, appeared for and on behalf of the Defendant. WHEREUPON, the following proceedings were had: P R O C E E D I N G S (Whereupon, trial having commenced at 11:00 o'clock, a. m., on September 11, 1968, testimony and other evidence having been offered and received, the following proceedings were had:) MR. DARRAH: The government will call Mr. Harold Johnson to the stand. THE COURT: You stipulate that in the event in order to hear this matter, to renew the motion in some fashion so that that may be done? MR. GUTERSON: Yes, your Honor. MR. DARRAH: Yes. HAROLD EARL JOHNSON, upon being called as a witness by and on behalf of the plaintiff, and upon being first duly sworn, testified as follows: DIRECT EXAMINATION By Mr. Darrah: Q Will you state your full name, Mr. Johnson? A Harold Earl Johnson. Q What is your present employment, sir? A I am employed by the United States Army. I am the foreign small arms - senior foreign small arms analyst for the United States Army Foreign Science and Technology Center. Q Where is that? A This is in Washington, D. C. Q What is the - what are the duties - briefly, what are your duties in connection with that? A Among other things my duties involve the examination and analysis of all types of foreign small arms weapons and weapons mechanisms with a view towards investigating those features that may be usable by the United States research and development activities. Q How long have you held this position? A Something over three years, sir. Q And what was your experience prior to this employment? A I was a Marine ordnance officer prior to this job. Right prior to my retirement I was in charge of the instruction for the Marine Ordnance School in the field of small arms and artillery weapons. My duties in the Marine Corps primarily were in the ordnance field and I have had much experience in the instruction on small arms and small arms mechanisms in the Marine Corps. THE COURT: What is the definition of "small arms"? THE WITNESS: A small arm is any weapon with a bore whose diameter is under six-tenths of an inch, .60 caliber. This is the standard government definition for small arms weapons. By Mr. Darrah: Q Now, I will ask you whether you are presently an advisor to any governmental agency or institution with regard to your duties, or with regard to your extra duties? A Yes, I am. I am an advisor to the Alcohol and Tobacco Tax Unit of the Internal Revenue Service and I act as an advisor in some instances to the Federal Bureau of Investigation and I have given testimony in front of the House of Representatives on two different occasions and I am available as an advisor and so act for many minor government offices such as the Munitions Control Board and the like of this. MR. DARRAH: Thank you. Now, I will ask that the weapons involved here be shown to the witness and I would ask at this time, your Honor for a stipulation that the weapons that are being shown to the witness are the weapons which were seized at the home of Mr. Jacques at his business premises. THE COURT: Very well. That is stipulated? Do you say "yes"? MR. DARRAH: With the exception, your Honor, of the magazine. MR. GUTERSON: That was Mr. Jacques' concern but these are the guns and now there is a magazine. THE COURT: A magazine on one of them. With the exception of the magazine that is attached. MR. DARRAH: With the exception of the magazine. MR. GUTERSON: Stipulated. THE COURT: It might be easier for you, sir, if you were down on a table, would it? THE WITNESS: Yes, sir, it would. THE COURT: I wonder if we could find a little table here of some kind that might make it possible so - - (Bailiff placed table in front of courtroom.) THE COURT: That is all right. THE WITNESS: Your Honor, may I leave the witness box? THE COURT: Oh, yes. Wouldn't it be better for all concerned for him to be here? MR. DARRAH: Yes, your Honor. THE COURT: Yes, very well. Then bear in mind that the Reporter has to record this so that anything you can do in your testimony that will help the Reporter to know what you are referring to, it will be helpful. Go ahead. By Mr. Darrah: Now, I would like you, Mr. Johnson, to explain first of all the working of the mechanism which determines whether or not the weapon fires automatically or semi automatically and describe the parts involved and describe the way these parts interrelate and the way that a person would have to change the weapon from what it is, how he would do it, in order to obtain an automatic function. A The rifle here is the Belgian light automatic rifle commonly known as the FAL. It is probably the most widely distributed arm used in the free world, in the noncommunist countries. They have been in production in Belgium since probably the mid-1950's and thousands upon thousands have been produced. The standard Belgian model is a selective firing gun. This is the regular military model. This gun has a switch on the side which may be positioned in one of three positions. In one position the weapon is safe and can not be fired. The next position down, the weapon is semi-automatic. That is, with a loaded magazine in place and the magazine properly adjusted, every time you pull the trigger the weapon will fire one shot and reload itself. To fire a second shot the trigger must be released and repressed. When the lever is swung into the third or "A" position, automatic position, the weapon will continue to fire so long as the trigger is pressed and there are cartridges in the magazine. This is like a machine gun. This is the standard model weapon. Sir, I have the Belgian manual that specifies this. MR. DARRAH: Perhaps counsel would like to see it. MR. JACQUES: That is K-6? THE COURT: You are familiar with it, Mr. Jacques? MR. JACQUES: Yes, sir. I have - - THE COURT: You have. MR. JACQUES: (Continuing) Some of mine are marked K-7. A (Continuing) I have here the manual on the FAL light automatic rifle put out by the maker, Fabrique Nationale, S.A., Belgium. In the manual on page 6, paragraph two, it says: "The rifle can be fired in two ways either semi or full automatic by manipulating the machine gun position on the left hand side of the trigger frame." The particular rifle I have here was made at the factory as an automatic rifle but some changes have been made to it. The most important change to it was the removal of what the Belgians call the safety sear and in our business we usually refer to it as the automatic sear because of the function it performs. In the side of the rifle you can see the small cut where this automatic sear would normally fit. In addition to that, a normal change lever, a three position change lever, has been fitted to the rifle but this rifle has a small stock shoulder on it that limits at only to two positions. Finally, a third change, a plunger behind the trigger has a collar around it to limit the travel of the trigger. When these three features are in place on these rifles they fire only semi-automatically. It can not go to full automatic. However, the necessary part for it are quite small and simple. THE COURT: The necessary parts to modify it from its present - - A (Continuing) The original parts, sir. THE COURT: I see, the original parts. A (Continuing) Are quite small and simple. Actually, the Belgian manual, for example, on this change lever refers to it as a special change lever. This is the semi- automatic or the two-position change lever. THE COURT: That is safety and - - A (Continuing) Safety and semi-automatic fire. On page 117 of the Belgian manual it says: "Semi-automatic change lever. "Under certain conditions (insufficient training, tactical reasons, etc,) it may be desirable to make it impossible for the soldier to use automatic fire, For this reason a special lever can be supplied to replace the normal change lever. The special lever has a stock which prevents it from taking up the automatic fire position. Changing the lever is done as for stripping." And then there is a paragraph on stripping. The lever is quite easily changed. However, the mere fact of changing the lever does not make the rifle into an automatic gun. To remove the lever you just rotate it out and pull it out and replace it with the three position lever. The important feature of this gun and the one part that is absolutely necessary for it is the automatic sear. This part can also be inserted in just a moment's time. By Mr. Darrah: Q For the record, Mr. Johnson, will you describe how big that sear is? A The automatic sear is roughly triangular shape. It is about an inch and a half long and about a half an inch deep and it has approximately three-eighths inch hole drilled through it and an arm extending up from one end of it This is the part of the automatic firing mechanism of this rifle. THE COURT: Should these be identified as exhibits? MR. DARRAH: I think it might be well, your Honor. THE COURT: You might make that Exhibit Number - You can take those little parts and after they are numbered - - MR. DARRAH: May we mark as exhibits the three parts you brought with you? THE WITNESS: That is what he (the bailiff) has. THE CLERK: Plaintiff's Exhibits 2, 3 and 4 marked for identification. (Plaintiff's Exhibits Number 2, 3 and 4 marked.) THE CLERK: This is what? THE WITNESS: The change lever. THE COURT: That is on the original equipment? THE WITNESS: On the original equipment. THE COURT: Is that Exhibit 1? THE CLERK: That is 2, your Honor, 1 has already been marked. THE COURT: What was 1? I just want to be sure. THE CLERK: That was Jacques' statement. THE COURT: I see. THE CLERK: So Exhibit 2 would be the change. THE WITNESS: Automatic change. THE CLERK: Automatic change lever. Exhibit 3 will be the sear. THE WITNESS: Automatic sear. THE CLERK: Automatic sear and Exhibit 4 - - THE WITNESS: The automatic trigger plunger. THE CLERK: Automatic trigger plunger. A (Continuing) While the exhibits were being marked I put the original two position or semi-automatic selector I switch back in. What I would like to do now is disassemble the rifle. THE COURT: Should that rifle be marked as an exhibit, probably number 5? Are they all the same? MR. DARRAH: No, your Honor. There are significant differences. THE COURT: Then mark the next one you are going to use now, Mr. Johnson, as 5. MR. DARRAH: You can tell us what the serial number is. THE CLERK: Plaintiff's Exhibit 5 marked for identification. (Plaintiff's Exhibit Number 5 marked.) THE WITNESS: Exhibit 5 is FAL rifle serial number G2701. A (Continuing) What I am going to do now is put the automatic sear in the rifle. The rifle is broken open and a large-headed screw unscrews and a pin forced out of the rifle. The automatic sear then slips into place in the recess in the receiver Provided for it at the factory. I replace the large pin and the screw that holds it on. I am going to take the breach cover off this particular rifle - it slides off - to show your Honor the action of the hammer in the rifle. The weapon still has the semi-automatic trigger. Now, if there was a loaded magazine in the rifle and a loaded cartridge in the chamber, when I pull the trigger the hammer would swing forward and strike the firing pin and fire the weapon and the gas mechanism would thrust the bolt to the rear and extract the fired cartridge and the mechanism would expel it out and the driving spring in the butt would then reload the rifle. Now, holding the trigger - this takes place in a very fast fraction of a second and you do not have time to release the trigger. The reaction is like that. If you notice, the hammer stays back. To fire another shot, I would have to release the trigger and pull it again. THE COURT: That is on semi-automatic. THE WITNESS: This is semi-automatic. A (Continuing) Now, in full automatic - and I am going to replace the semi-automatic selector switch with the three position automatic switch. THE COURT: That is Exhibit Number? THE WITNESS: This is Exhibit Number 2. A (Continuing) And I am going to remove the trigger plunger and replace it with Exhibit Number 4, the automatic trigger plunger. This is done by undoing a screw and removing the pistol grip and swinging the trigger guard down and easing the plunger and spring out of engagement with the trigger. These two plungers are very similar in design except that the automatic plunger has two collars on it, the foremost collar to limit the travel, and the full automatic plunger has the one collar and it does not have the travelling limitation feature on it. (Brief pause.) This particular rifle now, with the exception of the dust cover being removed, is the condition that the regular or normal FAL leaves the factory. It has the three position change lever, and it has the automatic sear in it, and it has the full automatic trigger plunger. Now, when set to the "R" position, or repeat, the function is still the same. You pull the trigger and the hammer remains back after each shot. But, when I swing the lever forward to the "A" position, and when I pull the trigger, it starts off normally but when the bolt comes home it trips the hammer and it will fire another shot as long as the trigger is held. This is, as I say, the factory configuration of the rifle. There are several other ways of accomplishing this. For example, if you have a rifle with just the - (Brief pause.) I am removing Exhibit 2, the fully automatic selector, and replacing it with the original two-position or semi-automatic selector. THE COURT: That was the one that was in the gun? THE WITNESS: This is the one that was in the gun originally, yes, sir. By Mr. Darrah: Q By "originally", you mean when it came into the courtroom? A Yes, sir. This is the one that was in the gun when it came into the courtroom. And I am going to replace the automatic trigger plunger with the original semi-automatic trigger plunger that also was in it when it first came into the courtroom. In other words, when I an finished the rifle will be in the same configuration with the exception that it will still have the automatic sear in position in the mechanism. (Brief pause.) Now, at this stage, with the exception of the dust cover removed, to show the mechanism, the rifle is, to most outward appearances, exactly the same way it came into the courtroom. The only difference in the rifle right now is the fact it still has the automatic sear in it. I can do one thing to this weapon, though. I can put a small shim under the tail of the trigger sear and I have a fully automatic weapon again and, if the Judge does not mind, I can show you how you do this. I am using paper because it is convenient. Any little piece of metal will do this. This shimming the tail of the sear has been quite a problem to the Canadian army authorities. They use this rifle, or a similar rifle, that they call a C-1, as an automatic rifle and they have indicated their soldiers are somewhat prone to put a shim on the back end of the sear to make these a fully automatic weapon. (Brief pause.) There is a small detainer that has moved out of position in here. THE COURT: A small what? THE WITNESS: There is a small detainer that has moved out of position in the rifle. I think I have got too big a shim in here. (Brief pause.) A (Continuing) I want to remove this particular piece of paper and place a smaller one in there. (Brief pause.) A (Continuing) Now, sir, the rifle is again back into the condition it was when it came into the courtroom except the dust cover is removed and it does have the automatic sear in it, and it has a shim under the trigger sear. I will set it in the semi-automatic position and push the trigger and your Honor will notice every time the bolt comes home the gun will fire. THE COURT: You can not see the shim from the outside. THE WITNESS: No, sir. The shim is hidden in the interior mechanism. A (Continuing) Now, the Browning Arms Company - THE COURT: The what? THE WITNESS: The Browning Arms Company, A (Continuing) - - the maker of this rifle recognized this and I can not remember the exact date but it was something over a month ago that I examined a new rifle of this pattern that they desired to import into the country and one of the things, in fact the only major change between that rifle and the one that they had once imported were that all the machine cuts to provide for the automatic sear were no longer there. They were never even made. The receiver was solid in the area where the automatic sear fits in, so that the Browning Company recognized the crux of the matter in making the weapon an automatic weapon was the provision of an automatic sear. They have now removed the automatic sear in the semi-automatic version. These new rifles can not be converted to full automatic fire. The earlier ones, as long as you have the automatic sear, it is the work of just a few seconds to convert them to full automatic by adding one part to the mechanism by putting a small piece of paper or small metal shim under the tail of the sear. THE COURT: And that one piece is what beside the shim, other than the shim? THE WITNESS: The automatic sear. THE COURT: I see, but that can not be replaced under the new - - THE WITNESS: It can not be replaced in the new ones. A (Continuing) These automatic sears were not in these original semi-automatic rifles and this automatic sear was not in position in any of these rifles that we have in evidence in this case. It was lacking from all of these. There was just the hole. But all of them have the provision to fit the automatic sear into them. The automatic sears are commercially available. I saw a copy of Shotgun News, a trade paper, that listed these for sale. Additionally, the FN rifle is a standard military rifle, with the FN varying, in many, many different countries and it is made, offhand, in Canada, in the United Kingdom, in Israel, in Austria, in Argentina, as well as in Belgium. The Canadians issue this automatic sear as an organizational spare part. Each unit that holds 250 of these rifles gets three extra automatic sears given to them and the Canadians quite frequently put their military weapons parts on sale. A perusal of the trade papers, for example, will show that all the parts for the Sten gun are available for purchase in Canada as ex Canadian military rifles. These safety sears probably would be readily available on the commercial market to anyone who wants one. Your Honor, one last thing on these rifles. We have two basic patterned rifles here. This particular rifle, the one I am talking about, the number G-2701, could really be described as an infantry rifle. THE COURT: What kind? THE WITNESS: Infantry rifle. A (Continuing) It is representative of the modern selective fire shoulder weapon, used by the average infantry soldier, in many of the free world's armies. Now, modern tactical concepts historically since the First World War normally require that an infantry unit in combat have what they call a base of firing, one weapon that can deliver an intense volume of fire against a target while the soldiers in the squad, the unit I am talking about, can maneuver. The automatic weapon, the light machine gun, is intended to keep the enemy's heads down and if they have their heads down they can't shoot back. So that most modern infantry squads have some type of a squad-like machine gun in it. This particular rifle that I am holding here, serial number GL5467 - - THE COURT: GL? THE WITNESS: GL, yes, your Honor. THE COURT: I see. THE WITNESS: 5467. MR. DARRAH: Can we have that marked too, your Honor? THE CLERK: Plaintiff's Exhibit 6 marked for identification. (Plaintiff's Exhibit Number 6 marked.) A (Continuing) As received by the Internal Revenue is capable of firing semi-automatic fire only because it does not have the safety sear in it. This particular one, however, has had the selector modified so that it is now an automatic selector, a three position selector. You can see where the shoulder was removed and the bare metal covered with paint. It does have the semi-automatic trigger plunger in it. The other rifle of this type, the reverse holds true. It has the semi-automatic or two-position selector but the stop shoulder on the trigger plunger has been removed. These conversions of these two parts obviously can be readily done and were done by somebody. The main point that I want to bring out on these rifles, though, is that these are not rifles, they are squad-like machine guns. This was their original purpose. This is a type of weapon known as a machine rifle. This is borne out by the design features, the characteristics of this rifle. It has a heavier barrel, much heavier than the barrel in the normal shoulder rifle. This barrel sops up the heat because the rifle is intended to fire automatic fire over a longer period of time than the normal rifle. Additionally, the flash suppressor on the muzzle is fitted for a bipod. The bipod is not on this rifle but it has all the cuts to do this. The butt plate of the rifle is equipped with a hinged strap to rest the rifle on the front of the shoulder. These weapons are fairly heavy and they are normally fired in the prone position, rested on the bipod, with the butt strap carrying the butt weight of the rifle on the gunner's shoulder. The normal firing position of this rifle is with both hands at the back of the rifle and' the one hand on the stock to control it and the other hand, of course, holding the pistol grip and the weight of the rifle generally borne between the bipod and the butt rest. My FN manual shows a picture of these particular rifles and they caption it, on page 98, as: "The automatic rifle with heavy barrel and bipod, supplied with a heavier barrel and a suitable bipod, this rifle can compete favorably with machine rifles which are considerably heavier with the added advantage of having the majority of its components interchangeable with those of the light model" The earlier rifles I discussed. "thus simplifying provision of magazines and spare parts as well as making true construction easier." Basically, what you have is a machine gun with exactly the same mechanism as the rifle. This is a true machine gun, a squad machine gun. It was designed like that from scratch and this is its tactical use. This is the store on these two rifles. They were designed originally as machine guns. They have all the cuts in them to fit the necessary parts and the manufacturer has recognized this and his current rifles now no longer have these cuts on them. There is a version of this rifle equipped with those parts that are characteristic of a true machine gun utilizing exactly the same mechanism and the same parts as the regular rifle. The conversion of the rifle is dependent primarily upon the availability of the automatic sear, which is an organizational spare part in many, many armies in the world, and it is made in four or five different nations. This just about sums it up, sir. By Mr. Darrah: Q May I ask you, Mr, Johnson, to bring forward the other three weapons and indicate to the Court differences for each weapon. MR. DARRAH: I would like to have each one of them marked as an exhibit along with the serial numbers on the weapons. THE CLERK: Plaintiff's Exhibit Number 7 marked for identification. (Plaintiff's Exhibit Number 7 marked.) THE COURT: The first gun was G-2701. That was Exhibit 4? THE CLERK: Exhibit 5, your Honor. GL-5467 was Exhibit 6. A Exhibit 7 is a gun that the - of a pattern that the intelligence community usually refers to as the West German model because they were among the first to use it. It is similar to the first gun, G-2701. This gun is number G-3357. THE COURT: What is that? THE WITNESS: G-3357. A (Continuing) But it differs from the first gun in that a fiber hand guard up on the front of the rifle is on this rifle with a brass - a metal - part with a bipod built into it. This bipod is to allow the gun to be slightly more steady during firing, especially during automatic firing. The mechanism on this rifle is identical to the mechanism on the first two rifles. It has all the cuts to take the automatic sear and the three-position or fully automatic selector and the fully automatic trigger plunger can be installed in the rifle. The major different between this and the G-2701 is that this rifle has a metallic forearm. THE COURT: What do you call that? THE WITNESS: A metallic forearm. A (Continuing) And a bipod. THE CLERK: Plaintiff's Exhibits 8 and 9 marked for identification. (Plaintiff's Exhibits Numbers 8 and 9 marked.) A (Continuing) I would like to discuss Exhibit 9 first. This is another light machine gun version, GL1163. It differs from Exhibit 6 in that it has a slightly different design of the handguard and it has a two position or semi-automatic selector lever installed in it. However, the stock collar has been removed from the trigger plunger thus providing a fully automatic trigger plunger. The trigger plunger in this particular one is home made. It was never made at the factory. It appears to have been made in a drill press and dressed down with a file. THE COURT: The trigger cover? THE WITNESS: The trigger plunger. A (Continuing) To provide an automatic trigger. Exhibit 8 is another heavier barrelled rifle and its number is G-1770. This rifle is similar to the first rifle, Exhibit 5, except that the light barrel has been removed and it has been replaced with a heavy barrel. This was done sometime apparently after the rifle left the factory because there are evidences of wrench marks on the barrel and the old barrel removed and this one screwed into the receiver. In other words, it is standard FAL with all the necessary cuts to provide an automatic trigger mechanism. So that all these rifles vary from one another slightly to one degree or another but all have the capability of being readily converted to fire automatically. The major necessity is one part, the automatic sear, which can be slipped into the weapon in a moment's time. It involves removing a screw, punching the pin out, and putting the screw back and putting a shim under the trigger or replacing the two selector lever with a fully automatic plunger and a three position selector. By Mr. Darrah: Q Mr. Johnson, are you aware of the serial numbers Browning has imported into the country under the Treasury's favorable ruling? A Yes, I am. All of these rifles that were imported into the country under this ruling, the serial numbers off with just a plain G followed by a three or four digit serial number. Some of these rifles we do not know where they came from. These are the two automatic rifles or light machine guns whose serial numbers start with GL. The Browning Arms Company - and I talked with their manager - said that these rifles were never imported into the United States by his concern. They would not import this type of weapon into the United States. I also talked to Mr. Packlin of FN Canada in Montreal and he said they sell these rifles to carefully selected customers. The GL serial numbers are completely new to him. He does not know where these came from. The straight G was imported into the United States under a Treasury Department ruling. The GL, no one knows where they came from. This would require a query to the factory and FN generally does not answer this type of query too readily. Q You don't have a list? A I don't have a list. MR. DARRAH: I have no further questions of Mr. Johnson. CROSS EXAMINATION By Mr. Guterson: Q Mr. Johnson, as I understand it, just briefly, without this automatic sear it is impossible for any of these weapons to be fired automatically? A That is right. Q And none of these weapons, at least in the condition in which you have examined them, have them? A When they were seized and up to the time I looked at them they did not have automatic sears. Q But I think your point is, though, that the way they were originally made by the manufacturer over in Belgium is such that, if somebody had the gun and went out and bought himself an automatic sear and knew how to fit it in as you, as an expert, know, he could make this into the kind of weapon that could be fired automatically; right? A The manual on the rifle explains - I would have to look up the chapter - how to insert this automatic sear in it. Q Also, none of these guns, so far as you know, had a magazine; is that right? A That is right. Q Without a magazine the gun is not capable of being fired? A That is right. However, the rifles, if I may, are sold complete with one magazine in each rifle. Q None of these had a magazine? A None of these had a magazine. Q These guns, when you call them FN, those initials stand for a manufacturing house in Belgium? A That is right. Q What is - - A (Interposing) Fabrique Nationale, National Factory. Q And they, as you indicated, make these kind of weapons and sell them almost throughout the world; is that a fair statement? A It is the most widely used military mechanism in the free world. Q At a certain time in the mid-50's under some contract with the Browning Company in America they made up a substantial number of these type of weapons that Browning wished to import into the United States; is that true? A To the best of my knowledge, yes, sir. Q Now, you have made reference to a booklet there with an initial K-6 in the corner, is that right? A Yes. Q I have one of these booklets my client provided me with called K-7. I think it is the same kind of book. Will you tell me whether it is? A Yes, except this is the one put out by the Browning Arms Company. Q Right; so that this would relate more strictly just to the ones that Browning got from the FN people and not to the ones that FN put out throughout the world? A May I look at it? Q Surely. THE COURT: Is that printed in this country? (Document handed to witness.) THE WITNESS: No, sir. I believe these were printed in Belgium. By Mr. Guterson: Q (Continuing) Printed by the manufacturer? A By the manufacturer. Q But, as I understand it, and you correct me if I am wrong, this booklet was printed primarily to be distributed with sales that Browning would make in the United States and had a particular application to the batch of these kind of guns that Browning by contract was having made by the Belgian company? THE COURT: Browning in the United States? MR. GUTERSON: Browning in the United States. By Mr. Guterson: Q (Continuing) As I understand it, this company makes this kind of guns and sells them all over the world this case Browning ordered five thousand of them, something like that, and this is the booklet that Browning gave in keeping with the ones they ordered? A May I say something? Q Yes. A An examination of this booklet show the only difference between this one and mine are in the cover where it refers to the FN Browning light semi-automatic rifle, the 308, and an insert page right inside the cover. Q The insert page, if I may, I would like to ask you to direct your attention to. Am I correct, Mr. Johnson, this is a legitimate book? A Yes, sir. Q And the insert page is a legitimate insertion and does it not state, in substance, in the first paragraph that with respect to these guns that are made by the FN people for Browning and for distribution in the United States that they are designed with only the two positions rather than the three, namely the safety position and the semi-automatic position and not with any that are completely automatic? A Yes, sir, you are right. That fact is: "All rifles sold in the United States with special new American models are designed to fire semi-automatic only." Q Right. A This is right. They changed. This model, however, can fire only semi-automatic. However, they are still based on the original selective fire rifle and your manual there mentions exactly the same thing, that this rifle - in fact, I believe it is on the same page - this rifle can fire in two ways, semi or full automatic by manipulating the position on the left hand side of the trigger, and I expect an examination of that particular manual will show the picture of the trigger mechanism with the automatic sear in it. Q I understand. THE COURT: The page - - A The same rifle. They made a few - - they removed one part and put one special part in and made one new part, the trigger plunger, and then said the rifle was designed for semi-automatic. The particular model rifle is intended for semi-automatic fire but it is based on a rifle that was originally designed for full automatic fire and it still has all the necessary recesses and cuts in it to accept those parts necessary to make it fire full automatic. Q Will you take a look at another one. I take it these manuals are printed according to directions? A Yes, sir. Q This one is called G-5 and again it seems to me it refers to the same gun. If it does, will you look at the insert put on page 18 of this manual? They say the American model, the mechanism is designed so that the sear is always in contact with the hammer before the hammer commences forward motion. Thus, full automatic fire is possible. A pull of the trigger must be executed for each shot. Yes, sir, this is done because they removed the automatic or safety sear out of the gun. Q Isn't - - A Pardon me. The diagram underneath that shows a picture of the mechanism with the automatic sear in position in the mechanism and an explanation of automatic fire. Q Is it fair, Mr. Johnson, to conclude that the Browning people were aware of some of these problems when they put in this order with the company in Belgium and as a result of their awareness when they asked for the group that they wanted manufactured for importation into the United States they purposely asked it be designed in such a fashion that there would not be the safety sear? A I am quite sure they did. Sir, may I quote you another example? I sit over in the Internal Revenue from time to time and look at weapons of this general type that are desired to be imported into the United States. You must bear in mind when a manufacturer such as FN makes a rifle like this he tools up not for 5,000 or 50,000 but he tools up with the idea he is going to make a million of them and he whips these parts out. Q Right. A He may have orders for them or he may not, but he gets a good stock of parts in and when he gets an order such as this from Browning he wants to, if possible, utilize his existing parts. I know, for example, of a Swiss rifle desired to be imported into the United States where they took the existing Swiss military selective firing rifle and they ground one piece off and put a little stock on one side. I know of an Italian rifle where they just ground a stud off on one side. I know of a .223 rifle where they just ground a couple of gears off. None of these are acceptable because the rifle, even though the manufacturer in Europe says they are designed to fire semi-automatically, meet the criteria established by the Internal Revenue Service by the statute that the rifle must not have been designed originally to fire automatically and these particular batch of rifles even though the brochure says that they are semi-automatic rifles, and no one can but concede in their present configuration that these rifles as received by Internal Revenue that they are capable of firing anything but semi-automatic, but they are based originally on a selective firing machine gun. Q I understand what you say but I think you will have to agree up until 1963 the Internal Revenue didn't make that position on this gun and they said it was perfectly O.K.? A Sir, I can't talk, I have no personal knowledge of - - Q (Interposing) But it isn't such an open and shut thing. There have been various judgments rendered about this particular rifle from time to time. A I can talk only from a technical viewpoint and these particular rifles were originally designed as automatic rifles. Q And for a time the Internal Revenue said, notwithstanding that, we will let them come in and then they changed their minds. A They were sold in the States. Q Sure; and when they changed their mind they put a caveat on that says that all those here before the cut off date are O.K. but no more can come in. A This is what I understand but again I can not testify to that because I don't know. Q Would there be any way in your expert judgment, Mr. Johnson, to distinguish between one of these guns that came in in April, 1963, as opposed to ones that came in after April, 1963? A I would imagine this could be done by serial numbers. Q I mean other than by - - by physical characteristics? A No, sir. There are a number of sub-varieties of this rifle. I can not give them to you off the top of my head because it involves such things as whether it does or does not have holes in the front sight. The earlier versions, for example, did not have a reinforcing part in the front of the butt. There are other various versions. Most of the ones from what I have seen from personal observation back in those days conform to this model here. This is Exhibit Number 5. It has a reinforced fibreglass handguard and it has a reinforcing stock in the front of the butt and it has a plastic pistol grip. This, I believe, is the model that actually was imported by FN. Q To your knowledge and your experience, the change in position that the Internal Revenue made in 1963 was made pursuant to correspondence between it and the Browning Company? A I don't know, sir. Q Do you know whether there has ever been any published regulations to the industry at large announcing this change in position? A I don't know. MR. GUTERSON: I have nothing further. MR. DARRAH: Mo further questions. THE COURT: That is all, Mr. Johnson. MR. DARRAH: May Mr. Johnson be excused at this time? THE COURT: I assume, Mr. Guterson, you have no objection. MR. GUTERSON: None at all. MR. DARRAH: He tells me he can not get an airplane anyway. (Witness excused.) REPORTER 'S CERTIFICATE I, Earl V. Halvorson, Official Court Reporter for the United States District Court for the Western District of Washington, do hereby certify that the foregoing is a true and correct transcript of extract of proceedings had in the within-entitled and numbered cause on the date hereinbefore set forth; and I do further certify that the foregoing transcript has been prepared by me or under my direction. [signed]