Vasquez, Subject: FW: Order on Historic Arms Historic Arms - Order Granting SJ.pdf | read over every word of the opinion in th spent many hours working with {JJ and FTB on the classification, and analysis came through loud and clear in the opinion. (QMO NG) se, and | want to give my thanks to all of you. | know that the time you spent on the Congratulations to all of you, and keep up the good work! From: (XG) Sent: Friday, August 20, 2010 4:03 PM Fw: Order on Historic Arms Here's the order. NOTICE: This electronic transmission is confidential and intended only for the person(s) to whom it is addressed. If you have received this transmission in error, please notify the sender by return e-mail and destroy this message in its entirety (including all attachments). From: To: Sent: Fri Aug 20 15:55:19 2010 Subject: FW: Order on Historic Arms 1429Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 1 of 23 IN THE UNITED STATES DrstaxcT court — FILEDINGLERKs g FOR THE NORTHERN DISTRICT OF GEORGIA Use. an Orr nee ATLANTA DIVISION AUG 2.0 2019 UNITED STATES OF AMERICA, JAMES N. Ha) pr Plaintiff, . crv acrzox NO. 1:0s-ev-0292-cer ONE HISTORIC ARNS MODEL SéRces rn 62XS4R CALIBER CONVERSION SYSTEM’ NACHINGGUS, SERIAL NO “ Defendant. HISTORIC ARMS, LLC, | Claimant. ORDER The above-styled matter is presently before the court on: 1) Plaintiff's motion for summary judgment [docket no. 43]; ana 2) Claimant Historic Arms, LLC’s motion for summary judgment: {docket no. 38]. This is a forfeiture action filed by the United states (yplaintiff” or the “government”) on January 23, 2009, pursuant to 26 U.S.C. § 5872, to forfeit and condemn one Historic Arms Model S4RCCS “7.62x54R Caliber Conversion System” Machinegun, Serial Number V1 (the “defendant”), as a firearm involved in a violation of 26 U.S.C. §§ 5841 and 5861(d). The complaint alleges that onCase 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 2 of 23 April 21, 2008, Mr. Lennis Savage, president of Historic Arms, LLC (“claimant”), a federally-licensed firearms manufacturer, provided notice that claimant had manufactured the defendant, a “short- barreled rifle.” The defendant was subsequently classified by the Firearms Technology Branch (*FTB’) of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF” or the “Bureau") as a “machinegun," but claimant disagreed with the classification and refused to file an amended ATF Form 2 Notice of Firearms Manufactured or Imported ("Form 2”) reflecting that classification. The government asserts that the defendant is subject to forfeiture on the grounds that it is unlawful to possess a machinegun which is not properly registered in the National Firearms Registration and Transfer Record ("NFRTR”). Claimant contends that the government has failed to satisfy the burden required to justify the forfeiture because it has not shown that the defendant contains a machinegun receiver, or that it is a weapon that “shoots automatically," is “designed to shoot” automatically, or that it can be “readily restored” to shoot automatically under the National Firearms Act’s definition of a machinegun. Claimant filed an answer to the complaint for forfeiture on February 10, 2009. On the same date, claimant filed a claim of legal interest requesting that the defendant property be returned because claimant designed, manufactured, registered, and voluntarily Page 2Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 3 of 23, submitted the property to the ATF for technical evaluation as requested by FIB Chief John Spencer. In claimant’s view, a disagreement over the defendant’s proper classification does not create a violation of federal criminal law requiring forfeiture of the property. Discovery in the case was extended by consent of the parties until October 8, 2009. On October 28, 2009, claimant and the government each filed a motion for summary judgment. The motions have been fully briefed and are now ripe for review. Applicable Law Under 26 U.S.C. § 5872(a), property involved in a violation of the National Firearms Act ("NFA"), 26 U.S.C. Chapter 53, is subject to seizure and forfeiture to the United States. However, a person may file a claim of ownership of the property seized by the government for forfeiture. 19 U.S.C. § 1608; Rule G(5), Fed. R. Civ. B., Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. Once a claim of ownership is filed, the government must satisfy its initial burden by demonstrating that it had probable cause to believe that the property was involved in a violation of law. Once the government establishes probable cause, the burden shifts to the claimant to establish by a preponderance of the evidence that the item was improperly seized. summary judgment ordering forfeiture is appropriate when the government establishes probable cause, and the claimant fails to show that the facts constituting probable cause did not exist. See United Sta’ Page 3Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 4 of 23 vw. Two Parcels of Real Prop., 92 F.3d 1123, 1128 (11th Cir. 1996). In other words, once the government meets its initial probable cause showing, the claimant must set forth facts showing that the government's classification of the defendant as a machinegun is not entitled to deference in order to avoid summary judgment. There is inconsistent authority on the amount of deference ATF firearm classifications merit. Cf. Mode: ing, Inc. w. Magaw, 18 F. Supp. 2d 29, 35-36 (D.D.C. 1998) (explicitly applying Chevron deference to review of ATF classification of Knight Disc Rifle as a firearm), with York v. Higgins, 774 F.2d 417, 419-20 (loth Cir. 1985) ("Although an interpretive rule like the one involved in this case is not granted the ‘force of law’ of legislative rules, it still requires deferential treatment by the court."). However, the courts have consistently recognized that when such decisions are shown to be the product of substantial agency expertise, experience and analysis, they are entitled to at least the standard of Skidmore deference, under which the weight of an agency's interpretation “depend[s] upon ... all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134 (1944). See also United States v, Mead Corp., 533 U.S, 218, 229 (2001) (“The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency’s care, its consistency, formality, and Page 4Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 5 of 23 relative expertness, and to the persuasiveness of the agency's position”). Accordingly, ATF firearm classifications are usually reviewed under an “arbitrary and capricious” or similar standard. See Akins v. United States, 312 F. App’x 197, 200 (11th Cir. 2009) (holding that ATF’s decision reclassifying an apparatus as a machinegun was not arbitrary and capricious). Under 26 U.S.C. § 5861(d) of the NFA, it is unlawful for any person to possess a firearm that is not properly registered with the federal government, punishable by a fine and/or up to 10 years in prison, id. § 5871. ‘The NFA includes within the term “firearm” a machinegun, id. § 5845(a) (6), and further defines a machinegun as “any weapon which shoots, ... or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger," id. § 5845(b). Staples v. United tates, 511 U.S. 600, 603 (1994). Possession of an unregistered machinegun also is prohibited under Section 922(0) of the Gun Control Act of 1968 ("GCA”), 18 U.S.C. §§ 921-929, as amended in 1986. United States v. Bailey, 123 F.3d 1361, 1385 n.3 (11th Cir. 1997) ("It is a federal crime for anyone, including a licensed firearms dealer, to possess a machinegun unless (1) the weapon is being transferred by a licensed dealer to a state or federal governmental agency, such as a police department, or (2) the weapon was manufactured and lawfully possessed prior to May 19, 1986, theCase 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 6 of 23 effective date of the federal law banning possession of machineguns.”) . Under the NFA, each manufacturer must register in the NFRTR central registry each firearm that it produces, 26 U.S.C. § 5841(b). To register the firearm, the manufacturer is required to complete and file an accurate Form 2 notice, executed under the penalties of perjury, no later than the close of business the next business day after the firearm’s manufacture. The notice must accurately identify the firearm by date of manufacture, type, model, length of barrel, overall length, caliber, gauge or size, serial number, the name and address of the manufacturer, and the place where the manufactured firearm will be kept. Id. § 5841(a); 27 C.F.R. § 479.103. As mentioned above, any firearm involved in a violation of the NFA is subject to seizure and forfeiture. 26 U.S.C. § 5872(a). Accordingly, the dispositive issue in this matter is whether the defendant property is an unregistered “machinegun" as defined by the NFA. Standard Courts should grant summary judgment when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any’ which it Page 6Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 7 of 23 believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548 (1986). That burden is “discharged by ‘showing’—that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party’s case.” Id, at 325; see also United States v. Four Parcels of Real prop., 941 F.2d 1428, 1437 (11™ Cir. 1991). Once the movant has met this burden, the opposing party must then present evidence establishing that there is a genuine issue of material fact. Celotex, 477 U.S. at 325. The nonmoving party must go beyond the pleadings and submit evidence such as affidavits, depositions and admissions that are sufficient to demonstrate that if allowed to proceed to trial, a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 8. Ct. 2505 (1986). If he does so, there is a genuine issue of fact that requires a trial. In making a determination of whether there is a material issue of fact, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Id, at 255; Rollins v, TechSouth, Inc., 833 F.2d 1525, 1529 (a1 cir, 1987). However, an issue is not genuine if it is unsupported by evidence or if it is created by evidence that is ‘merely colorable” or is “not significantly probative.” Anderson, 477 U.S. at 249-50. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential Page 7Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 8 of 23 element of the nonmoving party's case. Id, at 248. Thus, to create a genuine issue of material fact for trial, the party opposing the summary judgment must come forward with specific evidence of every element essential to his case with respect to which (1) he has the burden of proof, and (2) the summary judgment movant has made a plausible showing of the absence of evidence of the necessary element. Celotex, 477 U.S. at 323. Facts In light of the foregoing standard, the court finds the following facts for the purpose of resolving the parties’ motions for summary judgment only. As a Special (Occupational) Taxpayer ("SoT") and Federal Firearms Licensee ("FFL"), claimant is permitted under federal law to manufacture and sell NFA firearms. Because it is unlawful for persons to own, transfer or possess machineguns manufactured after May 19, 1986, it is not uncommon for owners of “pre-ban” machineguns to look for ways to equip the guns with caliber conversion devices so that the machineguns may be used to shoot a variety of ammunition calibers. For example, with the use of a caliber conversion device, a Military Armament Corporation (°MAC") type machinegun (designed originally to use .380 ACP, 9 mm and .45 ACP pistol caliber ammunition) can be converted to shoot rifle caliber ammunition. Claimant is an experienced designer and manufacturer of firearm systems and components. In order to avoid regulatory issues with Page 8Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 9 of 23 its designs and inventions, claimant often submits a prototype of the item to the ATF’s FITB for classification in advance of manufacture. on or about April 21, 2008, claimant completed the design and fabrication of defendant to act as a caliber conversion device for a MAC-type machinegun so that when defendant is installed on a MAC machinegun, the MAC can fire automatically multiple rounds of 7.62x54R caliber ammunition. Claimant completed an ATF Form 2, providing notice that it had manufactured one Historic Arms Model S4RCCS 7.62x54R Caliber Conversion System, Serial Number V1. On the form, under the heading, “Type of Firearm,” claimant entered “SBR,” an abbreviation for “short-barreled rifle.” Based on that form, defendant was registered in the NFRTR as a short-barreled rifle. Also on April 21, 2008, claimant submitted the defendant to the ATF’s FTB in Martinsburg, West Virginia for a technical evaluation. In claimant’s letter accompanying the defendant, claimant asked the PTB to verify (1) that the defendant is designed to be fired from the shoulder; (2) that it has a barrel length of less than 16 inches; and (3) that it is designed for exclusive use in MAC-type machineguns as a caliber conversion system. Firearms Enforcement Officer Max Kingery ("FEO Kingery”) was assigned to evaluate and classify the defendant. In FEO Kingery’s four-plus years with the ATF, he has classified over 1,000 firearms. He also has instructed local, state and federal law enforcement Page 9Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 10 of 23 officers on the proper identification and classification of firearms under both the GCA and the NFA. FEO Kingery’s examination noted that the defendant was comprised of the following components: (1) a modified PKM-type receiver ("PKM” stands for Pulemyot Kalashnikova, or "Kalashnikov’s Machinegun," Modernized version), mated with a MAC-type upper; (2) an unmodified PKM-type top cover and feed-tray assembly; (3) a newly-manufactured plastic forearm; (4) a shortened PKM-type gas system; (5) a barrel approximately 15 3/4" long; (6) a modified PKM-type machinegun bolt carrier assembly; and (7) a PKM-type bolt assembly. A receiver is “(t]hat part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is usually threaded at its forward position to receive the barrel.” 27 C.F.R. § 479.11. It is also that portion of the weapon bearing the firearm’s serial number. Id. § 479.102. FEO Kingery observed that the defendant was belt fed, and that it utilized open bolt firing and a fixed firing pin. The defendant, however, as submitted, was not in firing condition, as it lacked a trigger group and rear trunnion/stock mounting block. After examining the defendant, FEO Kingery concluded that in addition to containing a frame or receiver of a machinegun, the defendant could shoot automatically more than one shot, without manual reloading, by a single function of the trigger.Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 11 of 23 To verify that the defendant shot automatically, FEO Kingery tested the defendant by attaching a one-inch by one-and-a-quarter- inch aluminum plate to the rear of the defendant utilizing duct tape and plastic zip ties (due to the absence of a rear trunnion block to hold the recoil spring and guide rod in place). Kingery then loaded the defendant with three rounds of commercially available 7.62x54R Wolf brand ammunition and retracted and released the bolt operating handle to initiate the firing sequence. However, the force of the recoil broke the zip ties and duct tape, and the defendant failed to chamber and fire the second and third rounds. Next, FEO Kingery reattached the aluminum plate to the rear of the defendant utilizing a short piece of chain and a tensioning bolt. The attachment took approximately two minutes and required no special tools or equipment. A belt of three rounds of ammunition was loaded into the defendant; the operating handle was pulled back and released. The defendant fired all three rounds automatically, without manual reloading. This test was repeated and videotaped, with the same result. Based on FEO Kingery’s evaluation and testing, the ATF concluded that the defendant met the definition of a machinegun, under 26 U.S.C. § 5845(b), because it contained the ‘rame or receiver of a machinegun and shot automatically more than one shot, by a single function of the trigger. On June 10, 2008, the ATF sent a letter to claimant informing its president that the defendant had been classified by the ATF as Page 11Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 12 of 23, a machinegun, and therefore the defendant needed to be registered with ATF’s National Firearms Act Branch by the close of business of the next business day following claimant’s receipt of the letter. The eight-page letter was prepared by FEO Kingery, reviewed and approved by FTB Assistant Chief Richard Vasquez and FTB’s counsel, and signed by FTB Chief John Spencer. In a letter dated June 16, 2008, claimant objected to the ATF’s classification and asked that the classification be corrected and that the “short-barrel rifle” firearm be returned. In July 2008, the ATF denied claimant’s request to reconsider its decision to classify defendant as a machinegun, and informed claimant's president that he must amend his Form 2 and register the defendant as a machinegun. Claimant also was notified that failure to provide proper registration documents would result in ATF seizing and instituting forfeiture proceedings against the defendant. Claimant's president refused to amend the Form 2, and in August 2008, the defendant was forwarded to ATF’s Atlanta Field Division where it was seized for forfeiture. Discussion Congress delegated authority to the ATF to interpret and enforce the NFA. 27 C.F.R. § 479. Section 5845(b) of the NFA defines a “machinegun” broadly, including in its description: (1) “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without Page 12Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 13 of 23 manual reloading, by a single function of the trigger”; (2) “the frame or receiver of any such weapon”; (3) “any combination of parts designed and intended for use in converting a weapon into a machinegun”; and (4) “any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” 26 U.S.C. § 5845(b); 18 U.S.C. § 921(a) (23); S.W. Daniel, Inc. v. United States, 831 F.2d 253, 254 (11th Cir. 1987). courts analyzing the statute have observed that in addition to the three ordinary and obvious definitions of machinegun contained in the first sentence of section 5845(b), the statute “creates a class of objects statutorily defined as a machine gun but which might not qualify as a machine gun as the term is commonly and typically understood”; thus, certain parts or combinations of parts which can enable the automatic operation of weapons are themselves considered machineguns under the statute. See, e.g., United State: v. Aguilar-Espinosa, 57 F. Supp. 2d 1359, 1363 (M.D. Fla. 1999) (concluding that a sear, a small piece of machined metal no larger than one’s finger, is a statutory machine gun); F.J. Vollmer Co. Inc. v. Higgins, 23 F.3d 448, 450 (D.C. Cir. 1994) (recognizing that both a modified receiver and a machinegun conversion kit met the statute's definition of machinegun, whether integrated into an operable weapon or not); United States v. Campbell, 427 F.2d 892, 893 (5th Cir. 1970) (holding that conversion kits, assembled on Page 13Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 14 of 23 trigger housings, designed and intended for use in converting a standard M-1 carbine into a machinegun, constituted a “machinegun” under § 5845(b)). A device or item is considered to be a machinegun if it meets any element of the statutory definition. aAguilar- Espinosa, 57 F. Supp. 2d at 1362-63 (concluding that “Congress obviously intended to regulate possession of even an incipient machine gun, i.e., a device the possession of which is either tantamount to possessing a machine gun or the distinctive precursor of the automatic operation of a weapon.”). Longstanding ATF rulings provide that the statute’s term “designed” includes “those weapons which have not previously functioned as machineguns but possess design features which facilitate full automatic fire by simple modification or elimination of existing component parts.” See ATF Rulings 82-2, 82-8, 83-5; W. Daniel, Inc., 831 F.2d at 254-55 (same); United States v. M-K Specialties Model M-14 Machinegun Serial Number 1447797, 424 F. Supp. 2d 862, 866 (N.D. W. Va. 2006) (granting summary judgment in favor of government in forfeiture action where modified receiver had the features necessary to facilitate automatic fire by simple modification, and therefore was “designed” to shoot automatically). None of the cited cases or ATF rulings require possession of all the parts necessary to construct a completed machinegun. In the present case, the ATF initially found that the defendant contains the frame or receiver of a machinegun and is a weapon that Page 14Case 1:09-cv-00192-GET Document 57. Filed 08/20/10 Page 15 of 23 shoots automatically more than one shot, without manual reloading, by a single function of the trigger. FEO Kingery testified that the difference between a semiautomatic PK receiver and a machinegun PK receiver is that the semiautomatic receiver has a machinegun bolt blocking bar attached on its lower shelf and a widened left bolt guide rail. The purpose of those two design features is to prevent the installation and functioning of a PK machinegun bolt carrier and bolt, which facilitate automatic fire. It is undisputed that claimant fabricated the defendant, in part, by removing the lower shelf and machinegun bolt blocking bar on a semiautomatic WiseLite Arms/Vltor PKM-type receiver, and by widening the left guide slot on a PKM machinegun bolt carrier. As the ATF saw it, these modifications removed or altered the only physical design features preventing automatic firing and differentiating a semiautomatic PK receiver from a machinegun receiver. According to the Bureau, a modified receiver that enables automatic firing is considered a statutory machinegun. $ee Vollmer, 23 F.3d at 449 (denying transfer application for rifle with modified receiver and installed machine gun conversion kit). Because the ATF’s examination determined that defendant’s receiver no longer contained the design features required to prevent the installation of machinegun parts and automatic fire, the ATF concluded that the defendant contained the frame or receiver of a machinegun, and thus met the “frame or receiver” prong of the statutory definition of machinegun, Evidence Page 15Case 1:09-cv-00182-GET Document 57 Filed 08/20/10 Page 16 of 23, provided during discovery subsequently led the ATF to conclude that the defendant meets two additional prongs of section 5645(b), namely, that the defendant is “designed” to shoot automatically, and can be “readily restored” to shoot automatically more than one shot, without manual reloading, by a single function of the trigger. Claimant now argues that because the defendant, by itself, cannot shoot, the defendant is neither a firearm nor a weapon, and therefore, the device need not be registered at all, much less as a machinegun (despite the fact that claimant's president testified in his deposition that defendant is a firearm and also swore, under penalty of perjury, on the ATF Form 2 that he filed that the defendant is a short-barreled rifle type firearm required to be registered under the NFA). Claimant further contends that the ATF’s classification of defendant as a machinegun was arbitrary and capricious in light of several prior classifications of other MAC conversion devices as non-firearms. Claimant additionally argues that even if defendant is a weapon, it was not “designed” to shoot automatically, nor can it be “readily restored" to shoot automatically because defendant on its own does not shoot and “never has been fired." As discussed above, the government bears the burden to prove (1) that the defendant property qualifies as a machinegun under the NFA; and (2) that the property was possessed by claimant and was not effectively registered in the NFRTR. To satisfy the first element, Page 16Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 17 of 23 the government must prove that the defendant is classified as a machinegun under the standards set forth in the NFA and that such classification was the product of reasonable analysis and was not arbitrary, capricious, or an abuse of discretion. After careful review of the record, the parties’ arguments and submissions, and the pertinent statutes and regulations, the court finds that the government has met its burden. The ATF’s classification of the defendant as a machinegun, upon which the probable cause for seizure was based, has not been shown to be arbitrary, capricious, or an abuse of discretion. The government has presented evidence that the property was properly classified as a machinegun under the NFA, including the testimony of FTB Chief John Spencer, Assistant Chief Richard Vasquez, and FEO Kingery, who drafted the initial classification letter based on his examination and testing of the property. The classification letter issued by the ATF reasonably explained the evaluation process, the applicable law, and the bases for the Bureau’s conclusions and ultimate classification. The eight-page letter also included photographs of the inspection, evaluation and testing undertaken by FEO Kingery. Although claimant objects to the classification, it does not dispute the ATF’s finding that defendant can be converted to fire automatically in a matter of minutes with the addition of a few readily available parts, or that the defendant utilizes open boltCase 1:09-cv-00182-GET Document 57 Filed 08/20/10 Page 18 of 23 firing and a fixed firing pin (design features that the ATF, since 1982, has ruled are design characteristics of machineguns) . Claimant instead argues that the ATF’s decision was arbitrary and capricious because it has not classified a number of other caliber conversion devices as machineguns. However, there are statements in the record outlining important distinctions between those devices and the defendant. For example, none of the other devices included a frame or receiver that had been modified to remove or alter features designed to prevent full automatic firing. In any event, even if the other devices were similar in some or all relevant respects to the defendant, the Eleventh Circuit has held that the ATF has the power to “reconsider and rectify” earlier classifications. Akins, 312 F. App’x at 200 (concluding that ATF’s decision to reconsider earlier classification was not arbitrary and capricious); gee also Gun South, Inc, v. Brady, 877 F.2d 858, 862 (11th Cir. 1989) (concluding that an agency has the power to correct earlier errors). The claimant has set forth no set of facts showing that the ATF’s classification of the defendant as a machinegun was arbitrary and capricious. Claimant's “never been fired” argument also fails. During discovery, claimant provided three video clips of the defendant (or an early version of the defendant) installed on a MAC-10 machinegun being fired automatically prior to its submission to the ATF. Claimant's president also testified that before submitting the Page 18Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 19 of 23 defendant to the ATF, he tested the defendant by firing “several cases of ammunition [a] case being a thousand rounds,” including mult iple *200-round bursts or 250-round complete nonstop Mag or belt dumps.” ATF Ruling 83-5 provides that a firearm can be “readily restored” to shoot automatically if the firearm previously could shoot automatically, but cannot shoot automatically in its present condition. A firearm satisfies the “readily restorable” test for qualification as a machinegun if it can be made capable of automatic operation through some form of restoration, including restoration requiring a degree of skill and the use of tools and parts. Aguilar-Espinosa, 57 F. Supp. 2d at 1362. Here, FEO Kingery was able to convert the defendant to fire automatically in less than two minutes, using readily available materials and no special tools. Claimant does not dispute that defendant can be converted into a machinegun with a collection of parts, but simply argues, without legal support, that “restored” and “converted” are not synonymous, Claimant’s argument, however, is contrary to the weight of persuasive authority. See, e.g., United States v. One TRH, Model M14, 7.62 Caliber Rifle, 441 F.3d 416, 424 (6th Cir. 2006) (“[T]he definition of ‘restore’ does not preclude an object from being considered ‘restored’ without returning it to a condition in which it previously existed.”); id. at 421-22 n.@ ("We have also held that a firearm that can be converted to shoot automatically within two minutes ‘can be readily restored.’ United Page 19Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 20 of 23, States v. Woodlan, 527 F.2d 608, 609 (6th Cir. [1976])”) Thompson/Center Arms Co. v. United States, 924 F.2d 1041, 1044 (Fed. Cir. 1991) ("We can find no principled difference between ‘restored’, as interpreted by the government, and ‘converted’, as commonly understood”); M:K Specialties, 424 F. Supp. 2d at 866 (concluding that defendant was a machinegun as it could be restored to shoot automatically in 50 minutes with the addition of parts purchased off the internet). Even if the defendant had never previously been fired, the ATF did not abuse its discretion in classifying the defendant as a machinegun. Under the NFA, weapons which have not previously functioned as machineguns, but possess design features which facilitate full automatic fire by simple modification, meet the statutory definition of machinegun. $.W. Daniel, Inc., 831 F.2d at 254 (upholding the use of a jury instruction defining a machinegun as “those weapons which have not previously functioned as machine guns but possess design features which facilitate full automatic fire by simple modification or elimination of existing component parts"); York, 774 F.2d at 419 (upholding ATF’s classification of YAC Sten MKIZ as a machinegun because it possessed design characteristics of a World War II submachinegun); United States v. Qne Harrington and Richardson Rifle, Model M-14, 7.62 Caliber Serial Number 85279, 378 F.3d 533, 534 (6th Cir. 2004) (affirming district court holding that a rifle had features necessary to facilitate Page 20Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 21 of 23 automatic fire by simple modification and, therefore, it satisfied both the “designed to shoot” and the “readily restorable" criteria necessary to classify it as a machinegun under the NFA). Here, the ATF determined that the defendant incorporated design features of a machinegun, including a modified PKM-type receiver, a machinegun belt feed ammunition mechanism, a shortened PKM-type machinegun barrel, open bolt firing and utilization of a fixed firing pin. FEO Kingery’s evaluation and testimony establish that the defendant had the features necessary to facilitate automatic fixe by a simple modification, thus meeting the statutory definition of machinegun under 26 U.S.C. § 5845(b). Finally, claimant contends that because it registered the defendant as a short-barreled rifle in the NFRTR, and has not possessed the defendant since it was classified as a machinegun, no statute has been violated that would justify forfeiture. In xesponse, the government argues that pertinent ATF regulations require, at a minimum, that to be effective, the Form 2 notice description must be “accurate.” See 27 C.F.R. § 479.103. Once the AIF classified the defendant as a machinegun, the Bureau notified claimant that its original Form 2 notice was not effective and that claimant needed to amend the notice. Claimant's president declined to do so, stating that he could not swear, under penalty of perjury, that the defendant is a machinegun because he does not believe that it is. Ironically, claimant’s president now concurs with the Page 21Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 22 of 23 government that the defendant is not a short-barreled rifle, as the original registration reflects. Accordingly, the court finds that the ATF was well within its discretion in concluding that claimant's original Form 2 notice was insufficient to properly register the defendant. See Akins v. United States, 82 Fed. Cl. 619, 623 (Fed. C1. 2008) (holding that ATF was acting pursuant to the police power conferred on it by Congress when it reclassified device as a “machinegun” and ordered inventor to register or surrender the device). The government asserts that once defendant was classified as a machinegun, claimant's requests for reconsideration were denied, and claimant refused to amend its Form 2 registration notice, the unregistered machinegun could not be transferred or returned to claimant, as it is unlawful for any person to receive or possess a firearm made or transferred in violation of the NFA, or to receive or possess a firearm which is not registered to him in the NFRTR. 26 U.S.C, §§ 5861, 5872; see also id. § 5812(a) (banning transfer of firearms “if the transfer, receipt, or possession of the firearm would place the transferee in violation of law”). Claimant again objects and seeks the return of defendant, but has provided no legal authority that would authorize the possession, transfer or return of an unregistered machinegun. For the reasons stated above, the court concludes that the government has established probable cause that claimant manufactured Page 22Case 1:09-cv-00192-GET Document 57 Filed 08/20/10 Page 23 of 23 and possessed a machinegun that was not effectively registered in the NFRTR, and claimant has not carried its burden of showing that the property was not related to the violation of federal law. As claimant has not rebutted the government's showing of probable cause, the government is entitled to a judgment of forfeiture. Accordingly, the government’s motion for summary judgment [docket no. 43] is GRANTED; and claimant’s motion for summary judgment [docket no, 38] is DENIED. Summar 1) Plaintiff's motion for summary judgment [docket no. 43] is GRANTED; and 2) Claimant Historic Arms, LLC’s motion for summary judgment [docket no. 38] is DENIED. 3) The court further ORDERS that judgment be entered in favor of plaintiff, and that one Historic Arms Model S4RCCS 7.62x54R Caliber Conversion System Machinegun, Serial Number V1, be FORFEITED to the United States of America for disposition according to law. SO ORDERED, this aor day of August, 2010. ne. G. ERNEST TIDWELL, JUDGE UNITED STATES DISTRICT COURT Page 23To: From: Sent: — Wed 9124/2008 7:59:55 PM Subject Akins v. U.S. In reading over the decision, | believe itis important to note the significance the court put on the fact that the agency published a ruling on the classication of the Akins accelerator and specifically addressed and overruled the prior inconsistent rulings, J Congratulations to all of you for doing an excellent job on a case that was all but impossible to win! 1486To: From: Sent: Mon 8/17/2009 4:20:30 PM Subject: RE: Broughman - here are the opin. and order Congratulations! (ENG) From: (XG) Sent: Monday, August 17, 2009 11:53 AM To: Subject: Fw: Broughman - here are the opin. and order Definitely a surprise NOTICE: This electronic transmission is confidential and intended only for the person(s) to whom it is addressed. If you have recaived this transmission in error, please notify the sender by return e-mail and destroy this message in its entirety (including all attachments), From: To: Sent: Mon Aug 17 08:25:47 2009 ‘Subject: FW: Broughman - here are the opin. and order Ox Well this sa pleasant surprise (QN] (b) (6) Assistant U.S. Attorney P.O, Box 1709, Roanoke, VA 24018 Ox) Broughman - here are the opin, and order <<33 8-14-09 dec for defendant pdf>> <<34 8-14-09 order on decision.pdf>> serSent: ‘Thur 5/10/2007 4:42:37 PM Subject: RE: Blakley discovery requests questions, [GI have never seen the device at b) (5), (b) (6) ssue in this case, so | really cannot answer thes Blakely From: (NG Sent: Thursday, May 10, 2007 12:28 PM ) (6) RE: Blakley discovery requests Do these requests for admission relate to the Akins or the device at issue in the Blakely case? From: (XG) Sent: Thursday, May 10, 2007 11:04 AM To: Cc: Subject: FW: Blakley discovery requests RFAS: 11. The continuous application of sufficient [constant?] rearward pressure on the trigger will cause the firearm to fire additional shots until the [trigger is released or the(?) | magazine is empty or a malfunction occurs. 12. The amount of rearward pressure on the trigger that is required to cause the firearm to fire additional shots, as described in Request No. 11, is not greater than the amount of pressure required to initiate the firing sequence, as described in Request Nos. | and 2 1887From: Sent: Tue 5/27/2008 3:10:00 PM Subject: RE: Akins Complaint round 2 ) Associate Chief Counsel Litigation Division ATIORNEY-CLINT PRIVILEGED COMMUNICATION red above. I my contin infront content and protected frm dln soe work peeduc dovrne, or exempt fom dsclonue under her applicable ws, Any ue, dtibuton, copy ‘eansnsion in eto, please notify the sender at the munber or eal above “ ~ May 27, 2008 10:55 AM Akins Complaint round 2 Attached is the “new* complaint in Akins v. US, challenging the machinegun classification in a court that has jurisdiction. 1582Ce: From: Sent: Thur 7/24/2008 9:04:34 PM Subject: RE: Akins Spencer, nn as Many thanks to everyone who worked on this case. From{QKG) Sent: Thursday, July 24, 2008 4:40 PM pencer, John Subject: FW: Akins, See attached, order dismissing the Akins case in the Court of Federal Claims, Sy From: (3) Sent: Thursday, July 24, 2008 4:34 PM. To: (NGI Subject: Kins Hi - Attached is the opinion, It will be interesting to see if they appeal 1563ox Sent. ‘Thur 7/24/2008 9:07:06 PM Subject: RE: Akins From: (3G) |. Sent: Thursday, July 24, 2008 4:40 PM To: cc: Spencer, John R. Subject: FW: See altached, order cismissing the Akins case in the Court of Federal Claims. rs From: (OG Sent: Thursday, July 24, 2008 4:34 PM To: Subject: Akins Hi - Attached is the opinion. It will be interesting to see if they appeal 15841583,‘Spencer, John RDI) Sent: Wed 6/24/2009 5:15:23 PM Subject: Discovery Request US v One Historic Arms Model S4RCCS 7.62xS4R Caliber Conversion System Machine Gun, Serial No.V1:09-CV-00912 We are in the discovery period for the above-mentioned case. Please search your files for any emails or other documents (memos, reports, letters, notes, etc) related to ATF's classification and seizure (ATF Case Number 771010-08-0084) of the Historic Arms Model 54RCCS 7.62x54R Caliber Conversation System machinegun that was submitted by Historic Arms LLC (Len Savage) to FTB in April 2008, Also, please forward this request to any additional ATF employee who was not included in this email, but who may have such information. Please forward the documents to me by Wednesday, July 1* at the address below, Thank you in advance for your assistance in this matter. o Bureau of Alconol, Tobacco, Firearms and Explosives 2600 Century Parkway NE Atlanta, Georgia 30345 1683To: ‘Spencer, John R. ce: From: Sent: ‘Thur 10/22/2008 6:48:45 PM Subject: RE: Support from Field Counsel Thanks for the kind words (QXGHONG (b) (5), (b) From: Spencer, John R. Sent: Thursday, October 22, 2009 2:47 PM Cc: ‘Subject: Support from Field Counsel Greetings, I wanted to let you know that (XQ) as gone above and beyond the call of duty to assist the Firearms Technology Branch during our civil forfeiture case with Historic Arms. John R. Spencer Chief Firearms Technology Branch 1684ms Division Mfice Fax 1685To: From: Ficarelta, Teresa Sent: Thur 10/22/2009 6:59:59 PM Subject: RE: Support from Field Counsel Thanks for taking the ass on your kind wor (b) (6), (b) (5) Sent: Thursday, October 22, 2009 2:49 PM To: Spencer, John R.; (ONG! : Support from Field Counsel ‘Thanks for the kind words, John. (ORGANS) (b) (6), (b) (5 Spencer, John R ohn (OS) From: Spencer, John R. ‘ (OC aa Subject: Support from Field Counsel Greetings, | wanted to let you know that QEG) has gone above and beyond the call of duty to assist the Firearms Technology Branch during our civil forfeiture case with Historic Arms. 1686John R. Spencer Chief Firearms Technology Branch Firearms Programs Division ffice Fax 1667= Oo Fem: reson Sent: Thur 10/22/2009 6:46:31 PM Subject: Support from Field Counsel Greetings, | wanted to let you know tha@G} has gone above and beyond the call of duty to assist the Firearms Technology Branch during our civil forfeiture case with Historic Arms. John R. Spencer Chief Firearms Technology Branch rearms Programs Division fice Fax 1688Vasquez, ‘Sent: Mon 8/23/2010 9:25:59 PM Subject: RE: Order on Historic Arms It would not have been possible without the assistance of the Division Counse| and AUSA EGR John R. Spencer Firearms Technology Branch From: (5G ‘Sent: Monday, August 23, 2010 2:16 PM To: Spencer, John R. Vasquez, Ce: Subject: FW: Order on Historic Arms | read over every word of the opinion in this Harry spent many analysis came through loud and clear in the opinion. se, and | want to give my thanks to all of you. | know that urs working with Max and FTB on the classification, and the time you spent on the Congratulations to all of you, and keep up the good work! From:(QG) Sent: Friday, August 20, 2010 4:03 PM as Fw: Order on Historic Arms Here's the order. NOTICE: This electronic transmission is confidential and intended only for the person(s) to whom itis, addressed. If you have received this transmission in error, please notify the sender by return e-mail and destroy this message in its entirety (including all attachments), From To} Sent: Fri Aug 20 15:55:19 2010 Subject: FW: Order on Historic Arms 1689Vasquez, From: Spencer, John R Sent: Mon 8/23/2010 9:34:36 PM Subject: RE: Order on Historic Arms Itwould not have been possible without the assistance of the Division Counsel ond AUSA (XG John R. Spencer Firearms Technology Branch From: an sent 10 2.1500 Tor Vasquez, Richard Ce! ‘Subject: analysis came through loud and clear in the opinion. Congratulations to all of you, and keep up the good work! From it: Here's the order, NOTICE: This electronic transmission is confidential and intended only for the person(s) to whom itis. addressed. If you have received this transmission in error, please notify the sender by return e-mail and destroy this message in its entirety (including all attachments). From: To: Sent: Fri Aug 20 15:55:19 2010 ‘Subject: FW: Order on Historic Arms 1670Direct) Cell) (b) (6 1872or Subject: RE: This shall be interesting, Why/how does an ATF employee have an informant passing, on information about Mr. Savage's litigation strategy against the government?! This can't be good. I am copying Ralph, the CC and DCC to immediately report this troubling development. ATTORNEY WORK PRODUCT PRIVILEGED DOCUMENT This leone transmissions intend only fr the person) named above. It may conan information tht is conden an protested fom disclose by the atorney len privilege aor work product doctrine, r exempt ttom dslsure under other applicable laws, Any se, stibuton copying, or other ddsclonue by any person sty probed. Do at forward or rast without he prion ofthe sender or ATF. IEyou have rcv hi transi ner please not the wera the ber or eal above From: (0G) Sent: Wednesday, August 27, 2008 11:00 AM Tis shall be interesting... From: Vasquez, Richard Sent: Wednesday, August 27, 2008 10:31 AM his shall be interesting... EG) for your information Richard Vasquez Assistant Chief Firearms Technology Branch The accomplishments of great men cause regular men, as ourselves, to quote their words. Our goal should be to aspire to the accomplishments not the words of these men. “found on Wikipedia” From: ‘Sent: Wednesday, August 27, 2008 9:36 AM To: Vasquez, Richard Subject: FW: This shall be interesting... xe) jor her FY 1708From: Vasquez, Richard Sent: Wednesday, August 27, 2008 8:09 AM is shall be interesting... Richard Vasquez Assistant Chief Firearms Technology Branch Or The accomplishments of great men cause regular men, as ourselves, to quote their words Our goal should be to aspire to the accomplishments not the words of these men. “found on Wikipedia” From: len savage [mailto:lensavag@bellsouth.net] Sent: Wednesday, August 20, 2008 5:48 PM Subject: This shall be interesting... I received my "Notice of Forfeiture" on firearm serial number fi from ATF this week. If Historic Arms LLC chooses to contest the forfeiture, A claim of ownership must be filed within twenty days. A cost bond of $40 certified funds must be submitted with it [ATF valued the firearm at $400, cost bond is %10 of ATF assigned value] Some very interesting things will happen when claim of ownership is submitted: The ATF must forward to the US Attomeys Office who then will issue an arrest warrant for the firearm S/N V-1. A US Marshall will travel to FTB to place firearm S/N fj under arrest. [the ATF no longer has control over the firearm or the case] The US Attorney has 60 days to issue a libel or complaint on the firearm. It will read literally UNITED STATES ys firearm: Historic Arms LLC 54rCCS, s\e Ifthe US Attomey does not do so within 60 days the firearm must be returned. Ifthe US Attorney does issue the libel, then as the petitioner, I get to: Depose ATF personnel involved in the classification in firearm S/N jj I get to depose them on methods used, internal policies, communications, ete. Including the acting director....all personnel involved. also get to submit discovery requests for documents concerning the testing methods used at FTB, internal memos or written communications, notes, ete. 1709With no criminal liability a trial would be held in front of a US District Court Judge, the only issue is the validity of FTB testing methods applied to firearm S/N J) If Historic Arms prevails, I get the firearm back and enter production, and have everything documented in Federal Court, citizens get an impeachment tool to be used against future ATF wrongful prosecutions. Any legal fees are recoverable right then and there If Historic Arms fails, It's out the firearm already taken by ATF and $40, As I said, this will get interesting, I will forward the company’s official response to you upon finalization Len a0ATTORNEY WORK PRODUCT PRIVILEGED DOCUMENT ATTORNEY-CLIENT PRIVILEGED COMMUNICATION don fr the persons) aed or work predict devrne,o ex sin information tat i conidial and protest fom disclose by the applicable a bution copying. or oer ATE. IFyou ave rsevod this Associate Chief Counsel araLitigation Division ATTORNEY WORK PRODUCT PRIVILEGED DOCUMENT ATTORNEY-CLIENT PRIVILEGED COMMUNICATION tee only fr the esons oto thats conti and prtsted rom distur by dlslosue by any person is tely prohibited. Do not forward or re-ranst without the permission ofthe sender oe ATE. Ityou have received this Sent: Wednesday, August 27, 2008 11:00 AM To: Subject: FW: This shall be interesting... FYI From: Vasquez, Richard Sent: Wednesday, August 27, 2008 10:31 AM To: Oe | Subj Tis shall be interesting... EIGN for your information Richard Vasquez Assistant Chief Firearms Technology Branch 304-260-1699 The accomplishments of great men cause regular men, as ourselves, to quote their words. Our goal should be to aspire to the accomplishments not the words of these men “found on Wikipedia” Sent: Wednesday, August 27, 2008 9:36 AM To: Vasquez, Richard Subject: FW: This shall be interesting... CXS «5-0 From: Vasquez, Richard Sent: Wednesday, August 27, 2008 8:09 AM : This shall be interesting... Richard Vasquez a8Assistant Chief Firearms Technology Branch The accomplishments of great men cause regular men, as ourselves, to quote their words. Our goal should be to aspire to the accomplishments not the words of these men, “found on Wikipedia” From: len savage [mailto:lensavag@bellsouth.net] Sent: Wednesday, August 20, 2008 5:48 PM Subject: This shall be interesting... Ireceived my "Notice of Forfeiture” on firearm serial umbergiifrom ATF this week. If Historie Arms LLC chooses to contest the forfeiture, A claim of ownership must be filed within twenty days. A cost bond of $40 certified funds must be submitted with it [ATF valued the firearm at $400, cost bond is %10 of ATF assigned value] Some very interesting things will happen when claim of ownership is submitted: must forward to the US Attorneys Office who then will igsue an arrest warrant for the firearm AUS Marshall will travel to FTB to place firearm SINfiencter arrest. [the ATF no longer has Control over the firearm or the case] The US Attorney has 60 days to issue a libel or complaint on the firearm. It will read literally UNITED STATES ys firearm: Historic Arms LLC 54rCCS, SN a Ifthe US Attomey does not do so within 60 days the firearm must be returned. Ifthe US Attomey does issue the libel, then as the petitioner, I get to: Depose ATF personnel involved in the classification in firearm S/N [ get to depose them on ‘methods used, intemal policies, communications, etc. Including the acting director...all personnel involved. also get to submit discovery requests for documents concerning the testing methods used at FTB, internal memos or written communications, notes, etc. With no criminal liability a trial would be held in front of g US District Court Judge, the only issue is the validity of FTB testing methods applied to firearm S/N ji If Historic Arms prevails, I get the firearm back and enter production, and have everything documented in Federal Court, citizens get an impeachment tool to be used against future ATF wrongful prosecutions. Any legal fees are recoverable right then and there. If Historic Arms fails, Its out the firearm already taken by ATF and $40. As I said, this will get interesting, I will forward the company’s official response to you upon finalizationLen a6CxS) From: @NG) Sent. — Wed 8/27/2008 5:57:32 PM Subject: RE: This shall be interesting b) (5), (b) (6 (b) (6) ‘of Alcohol, Tobacco, Firearms and Explosives (ATF) Office of Chief Counsel Mail Stop - 4.E-362, Room 4B443 99 New York Ave, NE Washington, DC 20226 WARNING: This electronic transmission is intended only for the person(s) named above. It may contain information that is confidential and protected from disclosure by the attorney-client privilege and/or work product doctrine or exempt from disclosure under other applicable laws. Any use, distribution, copying or other disclosure by any other person is sirictly prohibited. Do not forward or re-transmit without the permission of sender or ATF Chief Counsel's Office. If you hhave received this transmission in error, please notify the sender at the number or e-mail above. ATTORNEY WORK PRODUCT PRIVILEGED DOCUMENT ATTORNEY-CLIENT PRIVILEGED COMMUNICATION Subject: Re: This shall be interesting. (OXGHOKS) NOTICE: This electronic transmission is confidential and intended only for the person(s) to whom it is addressed. If you have received this transmission in error, please notify the sender by return e-mail and destroy this message in its entirety (including all attachments),Sent: Wednesday, August 27, 2008 1:07 PM a(b) (6) ‘Subject: Re: This shall be interesting, (b) (5) NOTICE: This electronic transmission is confidential and intended only for the person(s) to whom it is addressed. If you have received this transmission in error, please notify the sender by return e-mail and destroy this message in its entirety (including all attachments), Ce: Sent: Wed Aug 27 13:02:14 2008 Subject: RE: This shall be interesting... Litigation Division ATTORNEY-CLIENT PRIVILEGED COMMUNICATION 1754Se ee Ce: Spencer, John R. ce | conducted a similar search last week as well which produced the same result. | also searched various bulletin board sights for the same info. | have not seen discussions describing the procedures either. | have heard some anecdotal comments where an individual “overheard” a discussion in an airsoft retail outlet; during which the process was discussed. However, there is no hard way to confirm if or exactly what was actually discussed. There was a couple of news articles some time ago detailing a few interviews (one such from Mr. Len Savage) who did indicate the conversion was easily possible, but no. discussion on how it could actually be completed. Bureau of Alcohol, Tobacco, Firearms & Explosives Firearms Technology Branch OS CONFIDENTIALITY NOTE This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and is legally privileged. This 1808Co (b) (6) Sent: ‘Tue 6/16/2009 11:50:02 AM Subject: RE: Need help--amendment on firearms testing standards a Seni ‘Tuesday, June 16, 2009 7:48 AM 1G) ‘Subject: Fw: Need help--amendment on firearms testing standards Importance: High We need to prepare talking points in short order. EPS or CC may have this info already canned. Not the first time we have seen this issue. Thanks NOTICE: This electronic transmission is confidential and intended only for the person(s) to whom itis addressed. If you have received this transmission in error, please notify the sender by return e-mail and destroy this message in its entirety {including all attachments) Froy To: Sent: Tue Jun 16 05:47:54 2009 ‘Subject: Fw: Need help~amendment on firearms testing standards ‘Good moming. Can you get a quick read on this please. Floor action starts today From: To} Sent: Tue Jun 16 01:25:08 2009 ‘Subject: Need help--amendment on firearms testing standards Need DO1's position on this first thing tomorrow AM (this morning?2??). Sec. 601, None of the funds appropriated by this Act may be used by the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives to pay the compensation of employees of the Bureau of Alcohol, Tobacco, Firearms and Explosives to test and examine firearms without written and published testing standards. b) (5) 1821From: Sent: ‘ue 6/16/2009 12:43:06 PM Subject: Re: Need help-amendment on firearms testing standards concur. NOTICE: This electronic transmission is confidential and intended only for the person(s) to whom itis addressed. If you have received this transmission in error, please notify the sender by return e-mail and destroy this message in its entirety (including all attachments). From: To: Ce Sent: Tue Jun 16 07:50:02 2009 ‘Subject: RE: Need help--amendment on firearms testing standards From: Sent: Tuesday, June 16, 2009 7:48 AM Subject: Fw: Need help-amendment on firearms testing Importance: High We need to prepare talking points in short order. EPS or CC may have this info already canned. Not the first time we have seen this issue. Thanks NOTICE: This electronic transmission is confidential and intended only for the person(s) to whom itis addressed. If you have received this transmission in error, please notify the sender by return e-mail and destroy this message in its entirety (including all attachments). From: To: Sent: Tue Jun 16 05:47:54 2009 ‘Subject: Fw: Need help~-amendment on firearms testing standards ‘Good moming. Can you get a quick read on this please. Floor action starts today Sent? Tue Jun 16 01:25:08 2009 1822From: Sent: Subject: FW: 08-2294 opn. pdt (08-2296 opn.pdf Please see attached, Firearms, Explosives and Arson Division Bureau of Alcohol, Tobacco, Firearms and Explosives 99 New York Ave., NE, Room 6E-363, From: Vasquez, Richard Sent, To: Ce: ‘Subject: 08-2294 opn.pdf 1824 an Spencer John RsJn the United States Court of Appeals Hor the Seventh Circuit No. 08-2294 UNITED STATES OF AMERICA, Plaintiff-Appellee, DAVID OLOFSON, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Wisconsin, No. 06 CR 320—Charles N. Clevert, Jr, Judge ARGUED JANUARY 22, 2009—DECIDED MAY 1, 2009 Before MANION and KANNE, Circwit Judges, and KENDALL, District Judge.* MANION, Circuit Judge. David Olofson was indicted for knowingly transferring a machinegun in violation of 18 U.S.C. § 922(0). A jury convicted Olofson of the charged offense following a two-day trial, and the district court * Hon. Virginia M. Kendall, District Judge for the Northern District of Illinois, is sitting by designation. 652 No. 08-2294 sentenced him to thirty months’ imprisonment. Olofson appeals his conviction. For the following reasons, we affirm, 1. Background Robert Kiernicki saw a “for sale” advertisement for a Colt AR-15 rifle that David Olofson had posted at a gas station in New Berlin, Wisconsin. Kiernicki called Olofson at the phone number listed on the ad to inquire about the weapon. Olofson informed Kiernicki that the adver- tised gun was no longer available but agreed to order and assemble another Colt AR-15 for Kiernicki. In the meantime, Olofson loaned Kiernicki an AR-15! and hun- dreds of rounds of ammunition on four separate occa- sions. The selector switch on the borrowed AR-15 had three positions: one marked “fire,” one marked “safety,” and one that was unmarked. Olofson and Kiernicki dis- cussed the unmarked setting on July 13, 2006, which was the fourth time that Olofson loaned Kiernicki the weapon. Olofson told Kiernicki that putting the selector switch in the unmarked position would enable the AR-15 to fire a three-round burst with a single pull of the trigger, but the gun would then jam. While at a shooting range that same day, Kiernicki (for the first time since using the gun) switched the AR-15 to + Four of the AR-I5's fire control components were parts from MA-16 rifles: the trigger, hammer, disconnector, and selector switch.sr No. 08-2294 3 the unmarked position and pulled the trigger; three or four rounds were discharged before the gun jammed. Kiernicki fired the weapon in that fashion several times, and each time it jammed after a short burst of three or four rounds. Police received a telephone complaint of automatic gunfire at the shooting range. When officers arrived at the range, they confiscated the AR-15 from Kiernicki. Kiernicki told the police that he had borrowed the gun from Olofson. Several days later, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) interviewed Olofson while executing a search warrant at his home. During that conversation, Olofson acknowledged loaning the AR-15 to Kiernicki On December 5, 2006, a grand jury indicted Olot for knowingly transferring a machinegun in violation of 18 US.C. § 922(0). Shortly before trial, Olofson filed a motion to compel the government to disclose evidence of the ATF’s firearms testing procedures, correspondence between the ATE and the manufacturer of Olofson’s AR- 15 about the use of M-16 parts in AR-I5 rifles, and the ATY’s registration history of AR-15 rifles that contain M- 16 parts. The district court denied that motion on the first day of trial after concluding that the information the defendant was seeking was not exculpatory under Brady v. Maryland, 373 U.S. 83 (1963). At trial, the government asked the district court to exclude Olofson’s expert witness from the courtroom during the testimony of its firearms expert. Over Olofson’s objection, the court granted the government’s request The government's expert testified that he used military-4 No. 08-2294 grade ammunition the first time he test-fired the AR-15 with the selector switch in the unmarked position and that the gun fired only one round. Later, using civilian-grade ammunition, he conducted two more test-fires of the weapon in the unmarked mode. In one of those tests, he held the trigger down and the gun fired all of its ammuni- tion (twenty rounds) before stopping. He also emptied two twenty-round magazines in five- or ten-round bursts by depressing, holding, and releasing the trigger several times. The government’s expert stated that such firing capabilities did not result from a “hammer-follow” mal- function but rather were intended features of the gun. After the close of the evidence, the court used the definition of a “machinegun” from 26 U.S.C. § 5845(b) to instruct the jury and chose not to define the word “auto- matically” from that statute as the defendant had re- quested. Following deliberation, the jury returned a guilty verdict. Olofson then moved for a judgment of acquittal, arguing that the evidence presented at trial was insufficient to convict him of the charged offense and that the statutes under which he was prosecuted are unconstitutionally vague. The district court denied that motion and sentenced Olofson to thirty months in prison. Olofson appeals, challenging his conviction on five grounds. Tl. Discussion A. Olofson’s Proposed Jury Instruction Title 18 U.S.C. § 922(0)(1) provides that, subject to exceptions not relevant here, “it shall be unlawful for6a No. 08-2294 any person to transfer or possess a machinegun.” The applicable definition’ of a “machinegun” is any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or re- ceiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. 26 U.S.C. § 5845(b) (emphasis added). The district court instructed the jury using the first sentence of § 5845(b) but did not give any guidance on the meaning of the word “automatically.” Olofson contends that the court inaccurately stated the law when it did not instruct the jury using the definition of “automatically” that derives from Staples v. United States, 511 U.S. 600, 602 n.1 (1994), and that we allegedly adopted in United States v, Fleischli, 305 F.3d 643, 655 (7th Cir. 2002).’ Whether jury ® According to 18 U.S.C. § 921(a)(23), “[a]s used in this chap- ter[] [t]he term ‘machinegun’ has the meaning given such term in section 5845(b) of the National Firearms Act (26 U.S.C [g] 5845(0).” * The defendant contends that if that instruction had been given, the jury could have found him not guilty because a (continued...6 No. 08-2294 instructions correctly state the law is a matter we review de novo. United States v. Thornton, 539 F.3d 741, 745 (7th Cir. 2008). We will reverse only if the instructions viewed as a whole misled the jury to the defendant's prejudice. Id. In Staples, the defendant was convicted of poss of an unregistered machinegun. 511 U.S. at 603-04, At trial, the defendant insisted that he did not know that the weapon was capable of firing automatically (which is one of the features of a “machinegun” under § 5845(b)) and requested a jury instruction that the government must prove beyond a reasonable doubt that he knew the ion gun could fire in such a manner. Id. The district court refused to give the defendant's proposed instruction; instead, it gave an instruction that discounted the defen- dant’s need for knowledge of every characteristic of the weapon that made it subject to regulation. Id. at 604. The Tenth Circuit affirmed, holding that “the Government need not prove a defendant's knowledge of a weapon's physical properties to obtain a conviction.” Id. In reversing, the Supreme Court held that the govern- ment was required to prove that the defendant knew of the characteristics of the gun that brought it within the ambit of the statute. Id. at 619. At the beginning of its opinion, the Court quoted the statutory definition of “machinegun” from § 5845(b) and * (continued) malfunction was the reason the weapon stopped firing or, alternatively, was what caused the gun to fire more than one round with a single trigger pullot No. 08-2294 7 stated that “any fully automatic weapon is a ‘firearm’ within the meaning of the Act.” Id. at 602. In a footnote, the Court then said the following: As used here, the terms “automatic” and “fully auto- matic” refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted Such weapons are “machineguns” within the meaning of the Act. Id. at n.1 (emphasis added). ‘The narrow holding from Staples is that nrens rea was an element of the crime in question—ie,, that the gov- ernment had to prove the defendant's knowledge of the features of the weapon (including automatic firing cap- ability) that brought it within the proscriptive purview of the statute. Id. at 619. The precise definition of “automati- cally” was not at issue; therefore, the Court's discussion of the terms “automatic” and “fully automatic” was immate- rial to its holding. Indeed, the Court prefaced its explana- tion of the terms “automatic” and “fully automatic” with the phrase “[als used here.” Thus, rather than interpreting a statute, the Court simply was providing a glossary for terms frequently appearing in the opinion. Therefore, Staples did not establish a requirement for district courts to instruct juries on the meaning of “automatically” from § 5845(b). ‘The same is true of our decision in Fleischli. In that case, the defendant was convicted of two counts of possession8 No. 08-2294 of machineguns in violation of 18 U.S.C. § 922(0)(1) Fleischli, 305 F.3d at 647, The defendant argued that a certain weapon was not a machinegun under § 5845(b) because it did not fire automatically and did not have a trigger. Id, at 654. Fleischli relied upon the definition of a semiautomatic rifle from 18 U.S.C. § 921(a)(28) to assert that a gun does not fire automatically “unless it uses a portion of the energy of a firing cartridge to extract the fired cartridge and chamber the next round without a separate pull of the trigger.” Id. at 655. This court con- cluded that the gun’s electronic on/off switch that initiated the firing sequence was a trigger and, having quoted from footnote one in Staples, stated that if the gun continued to fire until that switch was turned off or until the ammunition was exhausted, it was a machinegun. Id. at 655-56. Olofson suggests that Fleischli obliged the district court hli we to give his proffered instruction. True, in Fleis did borrow terminology from Staples in order to stamp out the appellant's “disingenuous argument’; id. at 655; however, we never purported to be setting forth a com- prehensive definition of “automatically” from § 5845(b). Indeed, we described the Staples footnote as merely “offerling] commonsense explanations” of the words “automatic” and “semiautomatic,” which confirms that we did not consider that passage to be precedentially binding. As we explain below, a weapon does not have to continue to fire until its trigger is released or its am- munition is exhausted in order to qualify as a “machinegun” under § 5845(b). Therefore, Olofson’s reliance on Fleischli for that proposition is misplaced63 No. 08-2294 9 We turn now to address what the word “automatically” means as it is used in the definition of “machinegun” in § 5845(b). “Statutory interpretation begins with the plain language of the statute.” United States v. Berkos, 543 F.3d 392, 396 (7th Cir, 2008). We assume that the purpose of the statute is communicated by the ordinary meaning of the words Congress used; therefore, absent any clear indication of a contrary purpose, the plain language is conclusive. Id. Again, “[t]he term ‘machinegun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b). “The most relevant time for determining a statutory term’s meaning” is the year of the provision’s enactment. MCI Telecomms. Corp. v. Ant Tel. & Tel, Co., 512 U.S. 218, 228 (1994) (citing Perrin v, United States, 444 U.S. 37, 42-45 (1979). Therefore, we examine how “automatically” was commonly used and understood in 1934, the year in which the definition of “machinegun” became law with the passage of the Na- tional Firearms Act, Pub. L. 73-474, 48 Stat. 1236. A leading dictionary from 1934 tells us that “automatically” is the adverbial form of “automatic.” WEBSTER’S NeW INTERNATIONAL DICTIONARY 187 (2d ed. 1934). The adjectival form of “automatic” is relevantly defined by that dictionary as “[hlaving a self-acting or self- regulating mechanism that performs a required act at a predetermined point in an operation[.|” Id. Another contemporaneous dictionary similarly describes “auto- matic” as “[s]elf-acting under conditions fixed for it, going10 No. 08-2294 of itself.” OXFORD ENGLISH DICTIONARY 574 (1933).¢ Thus defined, in § 5845(b) the adverb “automatically,” as it modifies the verb “shoots,”* delineates how the dis- charge of multiple rounds from a weapon occurs: as the result of a self-acting mechanism. That mechanism is one that is set in motion by a single function of the trigger and is accomplished without manual reloading, ‘That interpretation clearly forecloses the argument that a weapon is not a machinegun merely because it stopped firing due to a malfunction; indeed, the reason a weapon ceased firing is not a matter with which § 5845(b) is concerned. Under that interpretation, however, a defen- dant can still argue that the reason a gun fired more than ‘one round (with a single pull of the trigger without manual reloading) was due to a malfunction—ie,, the additional rounds fired resulted from a mishap rather than from a regular self-acting mechanism In light of the foregoing interpretation, we conclude that Olofson’s proffered instruction was not an accurate statement of the law and that the district court properly rejected it. Moreover, the district court correctly used § 5845(b) to instruct the jury. As used in the statute, * Modern versions of those two dictionaries define “automatic” in the same terms. WEBSTER’S THIRD NEW INTERNATIONAL DicTIONARY 148 (2002); OXFORD ENGLISH DICTIONARY 805 (2d ed. 1989). 5 For the sake of efficiency and readability, we use the term “shoots” as shorthand for “shoots, is designed to shoot, or can be readily restored to shoot,” unless otherwise indicated.6s No. 08-2294 u “automatically” comports with its ordinary moder meaning, see note 4, that is readily accessible to laypersons and is in no sense confusing; therefore, the district court was not required to define that term for the jury. United States v. Castillo, 406 F.3d 806, 821 (7th Cir. 2005); Miller v. Neathery, 52 F.3d 634, 638 (7th Cir. 1995). B, Sufficiency of the Evidence Olofson contends that the evidence presented at trial was insufficient to sustain his conviction. When a defen- dant challenges the sufficiency of the evidence, we view the evidence in the light most favorable to the government and will reverse the conviction only if no rational jury could have found the defendant guilty beyond a reasonable doubt, United States v. Castaldi, 547 F.3d 699, 705 (7th Cir. 2008). In order to convict a person of violating 18 U.S.C. § 922(0)(1), the government must prove that 1) the defendant possessed or transferred a machinegun 2) with knowledge that the weapon had the characteristics that bring it within the statutory defini- tion of a machinegun. United States v. McGiffen, 267 F.3d 581, 590 (7th Cir. 2001). Regarding the first element, Kiernicki testified that Olofson loaned him the AR-15 on four occasions, the last of which was July 13, 2006. An ATE agent also testified that Olofson admitted loaning the gun to Kiernicki, In addition, Kiernicki stated that the gun fired three or four rounds (on several occasions) with one pull of the trigger. The government's expert who test-fired the AR-12 No. 08-2294 15 stated that he exhausted a twenty-round magazine with one continuous depression of the trigger and ‘emptied two additional twenty-round magazines in five- or ten-round bursts by intermittently depressing, holding, and releasing the trigger. He also declared that the weapon was intended to fire in such fashions and that a “hammer-follow” malfunction was not the cause. That evidence was adequate to permit a reasonable jury to find beyond a reasonable doubt that Olofson transferred a “machinegun” as defined by § 5845(b). Regarding the evidence on the knowledge element, Kiernicki said that Olofson told him “the three-round burst wouldn't work and that it would jam up.” Kiernicki understood that statement to mean that “[t]hree rounds come out of it when you would pull the trigger” once. That testimony was sufficient for a reasonable jury to find beyond a reasonable doubt that the defendant knew that the AR-15, with a single pull of the trigger and without manual reloading, could shoot more than one round as the result of a self-acting mechanism. For these reasons, the defen- dant’s challenge to the sufficiency of the evidence fails.® C. Unconstitutional Vagueness Olofson argues that 18 U.S.C. §§ 922(0) and 924(a)(2) are unconstitutionally vague. We review the constitutionality “ The jury heard the testimony of the defendant's firearms expert about the AR-15’s supposed malfunctioning and obvi ously rejected it; on a sufficiency-of-the-evidence challenge, we will not second-guess the jury’s credibility determinations. United States v, Brandt, 546 F.3d 912, 917 (7th Cir. 2008).or No. 08-2294 13, of a statute de novo. United States v. Warner, 498 F.3d 666, 697 (7th Cir. 2007). A statute is unconstitutionally vague if it either “1) does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or 2) fails to provide explicit standards to prevent arbitrary and discriminatory enforcement by those enforcing the statute.” United States v. Lim, 444 F.3d 910, 915 (7th Cir. 2006). A vagueness challenge such as this one that does not implicate First Amendment freedoms is analyzed as applied to the specific facts of the case. Id. ‘To the extent Olofson contends that the statutes are fatally vague due to the way “automatically” is used in the incorporated definition of “machinegun” from § 5845(b), we disagree. We have already noted that the common meaning of “automatically” is readily known by lay- persons and thus a specific instruction defining the term for the jury was unnecessary. Similarly, a person of ordi- nary intelligence would have understood the common meaning of the term—“as the result of a self-acting mecha- nism”—and thus would have had fair warning of the relevant features of a weapon that § 5845(b) covers and that §§ 922(0) and 924(a)(2) regulate. Therefore, we reject Olofson’s argument that §§ 922(0) and 924(a)(2) are uncon- stitutionally vague’ Olofson does not present any cogent argument that §§ 922(0) and 924(a)(2) lack standards to prevent arbitrary or discrim- inatory enforcement.4 No. 08-2294 D. Exclusion of Olofson’s Firearms Expert from the Court- room The defendant also argues that the district court improp- erly granted the government's request to exclude his firearms expert (Len Savage) from the courtroom during the testimony of the government's firearms expert, Olofson contends that the presence of his expert during the testi- mony of the government's expert was essential to the presentation of his case. Under Federal Rule of Evidence 615, “[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.” That rule does not authorize the exclusion of four categories of persons, including “a person whose presence is shown by a party to be essential to the presentation of the party's cause.” FED, R, EVID. 615(3). As the party asserting a Rule 615(3) exception, Olofson bore the burden for showing that the exception applied. Opus 3, Ltd. v. Heritage Park, Inc., 91 F.3d 625, 628 (4th Cir. 1996); United States v, Jackson, 60 F.3d 128, 135 (2d Cir. 1995). We review for an abuse of discretion a district court’s decision about the essentiality of a witness’s presence under Rule 615(3). Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912, 916 (th Cir, 2005); Opus 3, 91 F.3d at 629; Jackson, 60 F.3d at 135-36 At trial, Olofson presented two reasons for opposing the government's request to exclude Savage from the court- room. First, he argued that because Federal Rule of Evi- dence 703 permits an expert to base his opinion upon facts6 No. 08-2294 15 or data made known to him at trial, Savage “should be allowed to be present to hear” the government expert's testimony. However, merely because Rule 703 contem- plates that an expert may render an opinion based on facts or data made known at trial does not necessarily mean that an expert witness is exempt from a Rule 615 sequestration order. The text of Rule 615 plainly does not provide for such a per se exception; rather, Rule 615(3) confers discretion upon district courts to determine whether a given witness (of whatever stripe) is essential We agree with the courts of appeals that have addressed the issue that Rule 703 is not an automatic exemption for expert witnesses from Rule 615 sequestration. Miller v, Universal City Studios, Inc., 650 F.2d 1365, 1374 (5th Cir 1981); Morvant v. Constr. Aggregates Corp., 570 F.2d 626, 630 (6th Cir. 1978); see Opus 3, 91 F.3d at 629. Therefore, the mere mention of Rule 703 by Olofson was insufficient to show that a Rule 615(3) exception was warranted. Second, Olofson stated that he “would like to have Mr. Savage present to hear” the government expert's testimony on malfunctions so that he could “rebut or add information” if such testimony was incomplete or incor- rect. While no precise incantation is required, we doubt whether those statements advanced the argument that Savage's presence was essential under Rule 615(3). Olofson did not tell the district court (as he tells us on appeal) that Savage's presence was of critical import to his highly- technical defense that the AR-15 malfunctioned. Even assuming that he did make the argument, Olofson did not carry his burden of demonstrating essentiality. The defen- dant stated that Savage should be allowed to hear the1 16 No. 08-2294 government expert’s testimony so that Savage could “rebut or add information” to any inaccurate testimony about malfunctions, but Olofson did not tell the district court why Savage's presence was necessary to achieve that end. Indeed, much of the data and malfunction information relied upon by the government's expert was already known to Savage due to the pre-trial disclosure of the government expert's reports, and Savage had the op- portunity to respond to such materials during the defen- dant’s case. Regarding any information which was not included in the reports but may have come into evidence during the testimony of the government's expert, Olofson had ample opportunity on direct examina- tion for Savage to rebut, add to, or opine on the implica- tions of such information by asking him to assume its existence. Although it might have been helpful or desirable for Savage to hear the government expert's testimony, Olofson did not show that Savage's presence was essential to the presentation of his case. Therefore, the district court did not abuse its discretion in denying Savage a sequestration exemption under Rule 615(3). E, Denial of Otofson’s Discovery Requests Prior to trial and pursuant to Brady, Olofson made a motion to compel the discovery of evidence he had re- quested but that the government had not produced. The defendant sought: 1) documentation of the procedures used by the ATF in testing the AR-15; 2) correspondence between the ATF and the manufacturer of the defendant'sn No. 08-2294 17 AR-15 concerning the use of M-16 parts in early AR-15 rifles; 3) information about changes in the ATF’s registry of AR-15 rifles with M-16 components; and 4) documents pertaining to the ATF’s refusal to register AR-15 rifles with M-16 parts. The district court denied the defendant's motion on the first day of trial after concluding that the information sought was not exculpatory. On ap- peal, Olofson claims that the district court committed prejudicial error in denying his Brady motion and that he therefore is entitled to a new trial. We review a district court’s decision that evidence need not be produced under Brady for an abuse of discretion. United States v. Dabney, 498 F.3d 455, 459 (7th Cir. 2007). Under Brady, the government is constrained to disclose evidence that is favorable to a defendant and material to cither his guilt or punishment. United States v. Fallon, 348 F.3d 248, 251 (7th Cir. 2003), Favorable evidence includes both impeachment and exculpatory evidence, United States v. Baker, 453 F.3d 419, 422 (7th Cir, 2006). Even when the government has not disclosed such evidence, “strictly speaking, there is never a real “Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Strickler v, Greene, 527 U.S. 263, 281 (1999). “We have described this inquiry as ‘materiality,’ and stated that the demonstra- tion of materiality is the key to obtaining a new trial where a defendant alleges a Brady violation.” Baker, 453 F.3d at 422. Thus there are three parts to a Brady viola- tion: 1) the disputed evidence must be favorable to the defendant, either because it is exculpatory or im-n 18 No. 08-2294 peaching; 2) that evidence must have been suppressed by the government, either willfully or inadvertently; and 3) prejudice must have occurred. Strickler, 527 U.S. at 281-82. Regarding the first non-disclosed item—the ATF’s internal procedures for test-firing AR-15 rifles—Olofson says he wanted that information because “[failure to follow those procedures by changing the type of am- munition in the second test could demonstrate that the tests had been manipulated to arrive at a reversal of the results of the first test.” We do not see how that informa- tion could have exculpated Olofson; section 5845(b) does not require compliance with ATF test-fire procedures in order for a weapon to qualify as a machinegun, nor must the weapon fire any particular grade of ammuni- tion or in the prohibited fashion during the Assuming that such evidence might have had some impeachment value, there was no Brady violation because the government's expert was otherwise sufficiently im- peached. United States v. Ervin, 540 F.3d 623, 632 (7th Cir. 2008) (“Brady does not extend to ‘evidence that impeaches an already thoroughly impeached witness.’” (quoting United States v. Kozinski, 16 F.3d 795, 819 (7th Cir, 1994))). Specifically, Olofson questioned the government's expert at length about ATF test-fire procedures and the types of ammunition used in the tests. In addition, the govern- ment’s expert admitted that the gun fired automatically more than one round with a single function of the trigger without manual reloading in the second test with civilian- grade rounds, but jammed in the first test with military- grade rounds, Even if the second test was inconsistent with ATF procedures, that fact would not undermine st test-fire.n No. 08-2294 19 confidence in the outcome of the trial. Kyles v. Whitmey, 514 US. 419, 434 (1995). Therefore, the district court did not abuse its discretion in denying the defendant's motion to compel the production of that evidence. With respect to his request for the ATFs correspondence with the manufacturer of his AR-15 concerning the use of M-16 parts in early AR-15 rifles, the defendant con- tends that evidence was exculpatory because it was relevant to his knowledge of whether or not his AR-15 was a machinegun. The district court denied Olofson’s request on the first day of trial. At the sentencing hearing, the court revisited the issue; the court inspected a docu- ment int camera, stated that it was not exculpatory, and placed it under seal. We subsequently ordered that docu- ment to be unsealed. ‘That evidence is a 1983 letter from the ATF to the manufacturer of the AR-15 in which the ATF advised the company that the installation of certain M-16 parts in AR-I5 receivers may permit the weapon to fire automatically even though an automatic sear is not present. We agree with the district court that the docu- ment is not exculpatory: it has no bearing on Olofson’s knowledge of whether his AR-15 was a machinegun.’ The ° ‘The government's theory of the case was that the AR-I5 functioned as a machinegun, thus implicating the first sentence of § 5845(b)’s definition of the term. As discussed earlier, the district court instructed the jury using only that part of § 5845(b), and sufficient evidence of Olofson’s knowledge of the AR-15’s firing capacity was presented to convict him. Had the government attempted to prove that a part or combination (continued...)% 20 No. 08-2294 letter has no impeachment value either. Therefore, the district court did not abuse its discretion in refusing to order the production of that evidence, Lastly, Olofson argues that any documents relating to the ATF's change in registry or refusal to register AR-15 rifles with M-16 components were exculpatory because they could have been used to refute the government expert's testimony that the M-16 parts in Olofson’s AR-15 made it a machinegun. But the government's expert did not testify that the AR-15 was a machinegun merely because it had M-16 parts; rather, the expert stated that the AR-15 fired the way it did due in part to the M-16 components. Regardless, like the district court, we do not see how the ATF’s opinions or positions regarding the presence of M-16 parts in AR-I5 rifles are the least bit germane to Olofson’s conviction for knowingly transferring a machinegun. The district court did not abuse its dis- cretion in denying Olofson’s motion to compel the gov- ‘ernment to produce that evidence. I. Conclusion In sum, the defendant's proffered jury instruction was not a correct statement of the law, and the district court * (..continued) of parts in the AR-15 made it a machinegun under the second sentence of § 5845(b), then perhaps evidence about the manu- facturer’s installation of M-16 parts in AR-15s would have been relevant to the defendant's knowledge of those parts in the weapon.6 No. 08-2294 21 properly rejected it. Furthermore, the evidence presented at trial was sufficient to sustain Olofson’s conviction, and 18 U.S.C. §§ 922(0) and 924(a)(2) are not unconstitutionally vague as applied to the facts of this case. In addition, the district court did not abuse its discretion in either ex- cluding the defendant's firearms expert from the court- room during the government expert's testimony or in denying Olofson’s motion to compel the production of evidence he had requested from the government. Accord- ingly, we AFFIRM Olofson’s conviction 51-09To: R. ce From: Vasquez, Richard Sent. Fri 5/1/2009 4:31:25 PM Subject: 08-2294 opn.pdf (08-2296 opn.pdt 1646, John“Tue 10/4/2005 6:50:48 PM Subject: Phone calls from Len Savage | had an extremely nasty phone conversation today with Len Savage, an FFL who has a number of firearms classifications issues pending with ATF. | ae Mr, Savage wanted to know why we are reviewing firearms classifications, how long it would take to review the letters, and a variety of other information about our internal operations. When | refused to give him definite dates for when we would finish reviewing his letters, he accused me of conspiring with Firearms ‘Technology to intentionally delay his responses. (b) (5), (b) (6) Ore Oxo Ono) 1888ee (XG) Sent: Wed 6/20/2012 5:00:56 PM Subject: FW: Thornberry Congrerssional 2012 889 MMK Thomberry.const Janes. bmpfire.inqu.congr,Itr.doc. docx MB bere itis. se ofthe addresses) ame above i connection wih cial business This ocasied Ifo th “taal o otheryiseproiied fom being eleased without appropiate iv e-mal mseae ad ay attach fi) in any frm oad of the Bare of Alesho, Tabac, Faroe & ron : june 20, 2012 12:55 PM ‘Subject: RE: Thornberry Congrerssional I believe this letter went out last week. Senior Ooms inforcement Officer Bureau of Alcohol, Tobacco, Firearms & Explosives Firearms Technology Branch 244 Needy Rd, Martinsburg, WV 25405-9431 Ph. Fx. CONFIDENTIALITY NOTE ‘This email is covered by the Electronic Communications Privacy Act, 18 U. S. C. §§ 2510-2521 and is legally privileged. This electronic message transmission, which includes any files transmitted with it, may contain confidential or privileged information and is only intended for the individual or entity named above. If you are not the intended recipient of this email, please be aware that you have received this email in error and any disclosure, copying, distribution or use of the contents ofthis information is strictly prohibited. if you have received this email in error, please immediately purge it and all attachments and notify me immediately by electronic mail tached is are intended soley forthe me ofthe adreace(s) named abo in connection with fic business. Thi 1985somali dain fi cl eas nd ay tach frm Fro 2) ©) arnt Sent: Wedne: 2 June 20, 2012 12: To: Subject: Thornberry Congrerssional IEIEE- | ied calling you, but forwarded to fl phone- anyway, | am getting ready to go into a meeting and |was wondering if you guys had received the Thornberry Congressional- re: bump-fire stocks. If we've drafted anything, could you forward a copy of that to me- please. Thanks. fi NOTICE: This cama message and any atached es ate intended solely forthe ws ofthe adresse) named above in connection th ofa busness. TMS “omavanicaton ay contain Sete Bat Unclassified faformation that maybe stator atherwie pried frm being released withowt appropriate Spproval. Any review, we or Sac mination of hi ma mevsage and any atch (in any form oataid ofthe Berea of Ako, Tbacen earn & 1986‘The Honorable Mac Thomberry Member of Congress 905 South Fillmore St., Suite 520 Amarillo, Texas 79101-3541 Dear Congressman Thornberry This is in reference to your recent correspondence to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATE) on behalf of your constituent, Your correspondence was forwarded to our Firearms Technology Branch (FTB) for response. Your letter indicates that wishes to know the basis for ATFs classification of a device known as a “Bump Fire Stock.” ‘Additionally, he holds the view that the device causes a weapon to shoot automaticaly and thus should be illegal Bump firing and some bump-firing stocks are not “firearms” as defined in the Gun Control Act of 1968 (GCA) or the National Firearms Act of 1934 (NFA) and thus not regulated by these two statutes. However, some “bump-firing stocks” have been classified as “machineguns. ” Currently, ATF is not aware of the commercial sale of any bump-firing stock that we have classified as a machinegun For purposes of our discussion, the GCA, 18 U.S.C. § 921(a)(3), defines the term “firearm” as: (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. Additionally, the NFA, 26 U.S.C. § 5845(a), defines “firearm” to include: (6) a machinegun. Further, “machinegun” is defined in the NFA, 26 U.S.C. § 5845(b), to mean: ‘any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically ‘more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in 1987‘The Honorable Mac Thomberry converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. We should point out that “Bump Fire” is not a specific brand or model name of device but, rather, a general term encompassing both a method of operating a firearm and any number of devices intended to facilitate this method of operation. This method of operation simply allows a user to actuate the trigger of a semiautomatic firearm at an increased speed, so that the firearm seems to replicate the rate of fire associated with a “machinegun.” Further, ATF has examined a number of Bump-Fire stock devices which have been submitted to FTB for evaluation. The device which has most recently received a substantial amount of public and law enforcement attention is the Slide Stock which is manufactured and marketed by Slide Fire Solutions of Abilene, Texas. The Bureau has classified this device as a firearm part not regulated by the GCA or NFA. As is evident from a perusal of the statutes cited above, a “machinegun” is regulated by both the GCA and NFA as a “firearm,” In order to constitute a “machinegun,” a device has to be one of four things: 1) A weapon that shoots (or is designed to shoot) automatically, i. a weapon that shoots more than one shot by method of an automatic sequence of events which will continue repeatedly with only a single input (single function of the trigger) by the user; 2) the frame or receiver of any such weapon described in #1; 3) a part or parts designed to convert a weapon to shoot automatically; or 4) a combination of parts from which #1, #2, or #3 can be assembled. In contrast, firing only one shot with a single funetion of the trigger is not an action applicable to a “machinegun,” Thus, no matter how fast one can actuate a trigger in a specific period of time, as long as the weapon or part(s) do not function as described above, the firing does not result in a “machinegun.” It is quite clear that the Slide Stock noted above does not convert a weapon to shoot automatically. Instead, it still requires the user to continuously and repeatedly apply multiple inputs to actuate the ‘weapon to which the stock is attached. The stock simply facilitates the ease and rapidity with which a person can operate the trigger. We thank you for your correspondence and trust the foregoing has been responsive to your constituent’s concerns. Sincerely yours, Gregory K. Gant Deputy Assistant Director Public and Governmental Affairs 1988,To: From: Sent: 720 Subject: ThomnberryCongressionalT GFedits ‘ThomberryCongressionalTGFedits,docx We should discuss this one — it’s complicated, 1989‘The Honorable Mac Thomberry Member of Congress 905 South Fillmore St., Suite 520 Amarillo, Texas 79101-3541 Dear Congressman Thornberry This is in reference to your recent correspondence to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) on behalf of your constituent, Your letter indicates that wishes to know the basis for ATF’s classification of a device known as a “Bump Fire Stock.” Additionally, he holds the view that the device causes a weapon to shoot automatically and thus should be regulated as a machinegun, ‘The Gun Control Act of 1968, 18 U.S.C. Chapter 44 (GCA), prohibits the transfer and possession of any machinegun, with exceptions for law enforcement and the military. The term “machinegun” is defined in the GCA as in section $845(b) of the National Firearms Act. Additionally, the National Firearms Act, 26 U.S.C. Chapter $3 (NFA),defines the term “firearm” to include a “machinegun and defines the term “machinegun”as follows: any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in 1900The Honorable Mac Thornberry converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. eneral term encompassing a “Bump Fire” is not a specific brand or model name of device but is a method of operating a firearm and a number of devices intended to facilitate this method of operation This method of operation simply allows a user to actuate the trigger of a semiautomatic firearm at an increased speed, so that the firearm seems to replicate the rate of fire associated with a “machinegun.” As is evident from a perusal of the statutes cited above, a {te ren (XO) 1992The Honorable Mac Thomberry Member of Congress 905 South Fillmore St, Suite 520 Amarillo, Texas 79101-3541 Dear Congressman Thornberry This is in reference to your recent correspondence to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) on behalf of your constituent, Your letter indicates that ishes to know the basis for ATF's classification of a device known as a “Bump Fire Stock.” Additionally, he holds the view that the device causes a weapon to shoot automatically and thus should be regulated as a machinegun The Gun Control Act of 1968, 18 U.S.C. Chapter 44 (GCA), prohibits the transfer and possession of any machinegun, with exceptions for law enforcement and the military. The term “machinegun” is defined in the GCA as in section 5845(b) of the National Firearms Act Additionally, the National Firearms Act, 26 U.S.C. Chapter 53 (NFA),defines the term “firearm” to include a “machinegun and defines the term “machinegun”as follows .. any weapon which shoots, is designed to shoot, or can be readily restored to shoot, etomatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. “Bump Fire” is not a specific brand or model name of device but is a general term encompassing a method of operating a firearm and a number of devices intended to facilitate this method of operation, This method of operation simply allows a user to actuate the trigger of a semiautomatic firearm at an increased speed, so that the firearm seems to replicate the rate of fire associated with a “machinegun.” 19932 As is evident from a perusal of the statutes cited above, a “machinegun’” is regulated by both the GCA and the NFA. In order to be a “machinegun,” a weapon or device must be one of the following: 1) A ‘weapon that shoots automatically, ie., a weapon that shoots more than one shot without manual reloading by a single function of the trigger; 2) a weapon that is designed to shoot automatically; 3) the frame or receiver of any weapon described in #1; 4) a part or parts designed to convert a weapon to shoot automatically; or 5) a combination of parts from which a machinegun can be assembled. “Bump stocks” or other bump firing devices would be regulated as machineguns only if they are a part or parts designed to convert a weapon to shoot automatically. Devices that merely assist the user in increasing their rate of fire would generally not be regulated as machineguns. However, devices that require only a single pull of the trigger to initiate an automatic firing sequence would generally be regulated as machineguns. ATF cannot classify a particular device without obtaining a sample and conducting testing. Samples and requests for classification should be submitted to ATF’s Firearms Technology Branch at 244 Needy Road, Martinsburg, WV 25401 We thank you for your correspondence and trust the foregoing has been responsive to your consti concerns. Sincerely yours, Joseph J. Allen Acting Assistant Director Public and Governmental Affairs 1908Subject: FW: airsoft alrsoftma slides.ppt The video that | spoke of during the SAC conference is not ready for display. ‘The attached PowerPoint (6 slides) provides description of steps that our FEO accomplished to convert airsoft rifle to machinegun operation. hin 25 minutes Arthur Sent: Thursday, August 12, 2010 10:51 AM 7 Subject: airsoft To all J thought you should all be made aware of this evaluation which | completed yesterday afternoon, The airsoft 416 was submitted by Umarex USA for evaluation. After approximately 12 minutes of work | was able to fire 3 shots out of it semiautomatically (one shot at a time), After approximately 25 minutes of work the sample was operating as a machinegun. have attached slides which detail the steps which I took and the approximate elapsed time each step took. 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