5
6 From its inception, this has been a prosecution in search of a standard.
7 Specifically, a standard of federal criminal liability.
8 At trial, the government’s evidence has raised the spectre of abuse by a
9 federal agency of its rule-making authority that has resulted in the filing of
10 an indictment against an innocent individual, defendant Joseph Roh, based
11
on conduct that, at most, violates the agency’s internal policy or practice, but
12
does not in any way violate any law – no statute or C.F.R. provision.
13
As such, the government’s case is legally flawed and should therefore
14
be rejected outright by the issuance of a judgment of acquittal under
15
Fed.R.Crim.P. 29.
16
17
In light of the filing of this criminal case based only on agency policy
18 alone, the defense further requests that this Court consider making a formal
19 recommendation to the U.S. Attorney General that an internal review be
20 conducted within the U.S. Department of Justice in regard to the internal
21 decision-making at the Bureau of Alcohol, Tobacco & Firearms (“ATF”) that
22 led up to this prosecution, and whether the filing of this case against Mr. Roh
23 is indicative of a wider practice at ATF to pursue federal criminal charges
24
based on violations of agency policies that have not undergone formal rule-
25
making procedures to achieve codification as law under the Code of Federal
26
Regulations. Such an internal review would include a determination as to
27
28
3
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22 analysis:
23 First, the use of the NC machine and manual drill press at Mr. Roh’s
24 business to machine an AR-15 blank into a finished blank constituted the
25 manufacture of a “receiver”;
26 Second, a receiver constitutes a “firearm” under 18 U.S.C. 921(a)(3),
27 which states in pertinent part:
28
5
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 6 of 39 Page ID #:1273
9 flawed because under the applicable legal standard, a fully machined AR-15
10 blank does NOT constitute a receiver and therefore is not a firearm. On this
11 basis, the government’s prosecution theory is unsustainable as a matter of
12 law and is therefore the type of case wherein no jury could reasonably find
13 Mr. Roh guilty beyond a reasonable doubt.
14
15
C. 27 C.F.R. 478.11: The Legal Standard Applicable To The
16
Manufacturing Charge In The Indictment Under Which
17
Defendant Roh Is Innocent
18
19
On cross-examination, defense counsel confronted government
20
21
witnesses with the legal standard applicable to the manufacturing charge: 27
9 part requirement, as section 478.11 begins with the term, “[t]hat part,” thus
10 requiring that all of the required technical features be contained within a
11 single part, which a fully machined AR-15 blank lacks.
12 Therefore, it is a simple and clear conclusion to draw that a fully
13 machined blank does not qualify as a receiver under section 478.11. Plain
14 and simple. The government’s witnesses acknowledged this during the trial;
15
and the government cannot deny it in post-trial briefing.
16
For the simple reason that a fully machined blank does not qualify as a
17
receiver, it also does not constitute a firearm under 18 U.S.C. 921(a)(3).
18
Therefore, the machining of the AR-15 blank through the use of the NC
19
machine and drill press did NOT constitute the manufacture of a firearm.
20
21
As the remainder of Mr. Roh’s business, Rohg Industries, involved the
22 sale of parts and accessories, and the assembly of parts into a completed rifle,
23 there is nothing else about Rohg Industries that could arguably entail
24 manufacturing. Indeed, during questioning by the Court, agent Joshua
25 Jackson acknowledged that assembly does not constitute manufacturing.
26 Therefore, the inescapable conclusion is that Mr. Roh is innocent of the
27 manufacturing charge as a matter of law and should therefore be acquitted
28
7
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 8 of 39 Page ID #:1275
1 by this Court pursuant to a Rule 29 judgment, without the need for closing
2
argument or a verdict.
3
4
D. The ATF’s Internal Policy That Masquerades As Law: The
5
“Classification” Of A Finished AR-15 Blank As A Receiver /
6
Firearm
7
8
9 Despite Mr. Roh’s innocence under the law, the government brought
10 this prosecution based on an entirely different standard that does not
11 constitute binding law, namely the ATF’s in-house policy of treating a fully
12 machined AR-15 blank as a receiver and thus a firearm. To sound official,
13 the ATF has given this in-house decision the fancy name of “classification.”
14 Throughout the government’s case-in-chief at trial, witness after
15
witness repeatedly referred to the AR-15 blank as a “lower receiver,” not
16
only in terms of its casual use in the firearms community but, more
17
importantly, in terms of how the ATF “classifies” the blank. Witnesses such
18
as James Palm, Joshua Jackson and the government’s expert, Daniel
19
Hoffman, all spoke of the ATF’s treatment of the fully machined blank as a
20
21
receiver for purposes of qualifying as a firearm under the law. In so doing,
1 items.3 Mr. Hoffman confirmed that such classification decisions are made
2
without consultation with ATF’s legal department. When pressed on the
3
subject, Mr. Hoffman could not articulate any specific criteria or standards
4
that define the so-called “classification” system at the ATF.
5
Of particular importance is Hoffman’s acknowledgment on cross-
6
examination that the ATF’s position in this case that Mr. Roh was engaged in
7
8
the manufacture of firearms was indeed based on the ATF’s classification of
22
3
23 The term “classification” appears in quotations because at trial, government
witnesses, including the government’s expert, Daniel Hoffman, who is from the FTB branch,
24 failed to demonstrate that FTB, or the ATF as a whole, has developed a formal classification
25 system by which a fully machined AR-15 blank is deemed to be a receiver. The term
“classification” or “classify”, while implying a formal system of criteria, appears to be
26 synonymous with “treat” or “consider” – that is, the FTB treats or considers the machined
blank as a receiver, without having any formal criteria or standard by which this decision is
27 made.
28
9
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 10 of 39 Page ID #:1277
9 personnel who staff the FTB office in West Virginia, including Mr. Hoffman.
10 Beyond the non-public nature of the so-called “classification” system is
11 the seemingly ad hoc nature of the decision-making process. During both
12 cross-examination and in response to the Court’s questions, Mr. Hoffman
13 acknowledged that the only way the general public would be able to know
14 how the classification system worked was to make a direct inquiry of the FTB
15
branch, typically by submitting a letter together with a sample (a firearm
16
part) seeking guidance from the ATF as how the item was classified; and the
17
ATF would send a responsive letter. Hoffman further acknowledged that
18
decisions would be made on a case by case basis as his department reviewing
19
incoming samples.
20
21
The government’s reliance on an in-house classification system to bring
22 this prosecution became readily apparent only as the case reached the trial
23 stage, nearly four years after being filed, as testimony from government
24 witnesses began to reveal how the ATF made internal decisions that were
25 completely contradictory of the legal standard in the C.F.R. and used their
26 in-house standard as the measure of noncompliance, even to the degree
27 where, as here, the in-house standard served as the basis for bringing a
28
10
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 11 of 39 Page ID #:1278
1 criminal prosecution.
2
Perhaps the most important admission by the government witnesses,
3
and in particular by Hoffman himself, was the acknowledgment that the ATF
4
never initiated any procedure by which to amend 27 C.F.R. 478.11 to bring it
5
into conformity with its own in-house “classification” standard. Instead, the
6
agency disregarded the rule-making process available to a federal agency to
7
8
codify policy as law in the C.F.R., opting for more convenient – albeit illegal –
22 manufacturing firearms without in any way allowing him to know that the
23 ATF’s conclusion is based entirely on an in-house classification and that the
24 opposite conclusion would be reached under the legal standard set forth in 27
25 C.F.R. 478.11. The C&D Letter is a clear-cut illustration of the ATF acting
26
27 4
Defense Exhibit 1016 in evidence.
28
12
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 13 of 39 Page ID #:1280
1 solely on the basis of agency policy without any regard for the law and
2
essentially throwing its weight around as a federal agency to bully Mr. Roh
3
into discontinuing a business practice that is legal but which the agency
4
simply wants him to stop doing. And so the agency misrepresents to Roh that
5
his actions are illegal.
6
It would not be until the eve of trial that the ATF’s reliance on its
7
8
classification process as the basis for its actions in this case would be
9 that the above-quoted excerpt from Exhibit 134 is a statement by the FTB
10 branch of the ATF that in its opinion, based on the agency’s classification
11 process, a fully machined blank is treated as a receiver and thus a firearm;
12 and that the ATF therefore views the manufacturing of fully machined
13 blanks as constituting the manufacturing of firearms.
14 In short, Gov Exhibit 134 is a blatant admission by the ATF that the
15
premise of the government’s case against Mr. Roh is based on its in-house
16
classification process, rather than the legal standard under 27 C.F.R. 478.11.
17
As such, the ATF has abused its authority as a federal agency in treating its
18
internal policy as a legal standard for purposes of pursuing a search warrant
19
to shut down Mr. Roh’s business and pursuing a criminal prosecution.
20
21
22 E. The ATF’s Treatment Of Its “Classification” Of A Finished AR-
23 15 Blank As A Firearm As Tantamount To Law, Without Having
24 Complied With The Rule-Making Process Under The
25 Administrative Procedure Act, Is An Abuse Of Its Authority As
26 A Federal Agency And Nullifies This Prosecution
27 Based on the authorities discussed below, the inescapable conclusion is
28
14
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1 that the ATF's “classification” upon which Mr. Roh’s indictment was based
2
was made by the ATF in violation of the Administrative Procedure Act
3
(“APA”), 5 U.S.C. 551, et. seq., thus necessitating a judgment of acquittal and
4
dismissal of the Indictment.
5
In order to create law that is binding on the general public, a federal
6
agency must engage in the rule making process – that is, promulgate rules
7
8
pursuant to the APA. The terms “rule” and “rule making” are defined in
9 * * *
10 (D) substantive rules of general applicability
11 adopted as authorized by law, and statements of
12 general policy or interpretations of general
13 applicability formulated and adopted by the agency;
14 and
15
(E) each amendment, revision, or repeal of the
16
foregoing.
17
Except to the extent that a person has actual and
18
timely notice of the terms thereof, a person may not
19
in any manner be required to resort to, or be
20
21
adversely affected by, a matter required to be
22 C.F.R. 478.11, pursuant to which a full machined AR-15 blank does not
23 constitute a receiver. At trial, government witnesses acknowledged that to
24 the best of their knowledge, ATF has never undertaken the rule making
25 process to amend section 478.11.
26 A federal criminal conviction cannot be sustained on the basis of an
27 administrative rule that is substantive in nature, but which has not
28
17
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 18 of 39 Page ID #:1285
1 undergone the rule making procedures set forth in the APA to become law.
2
A leading case on this subject is United States v. Picciotto, 875 F.2d 345
3
(D.C. Cir. 1989), in which the D.C. Circuit reversed a conviction for violating
4
a U.S. Park Service condition that was issued by the agency subsequent to the
5
enactment of 36 C.F.R. §7.96, a regulation pertaining to activity on national
6
parks that had undergone the formal rule making process and was therefore
7
8
properly enacted into law. This regulation contained a subsection, referenced
9 in the opinion as Clause 13, which authorized the Park Service to add
10 “reasonable conditions and additional time limitations” to permits for
11 specified activities in parks, such as demonstrations. After 36 C.F.R. §7.96
12 was enacted, the Park Service adopted several “additional conditions,” 875
13 F.2d at 346, one of which the defendant was criminal charged with violating.
14 In reversing the criminal conviction, the Circuit expressly recognized
15
that while the defendant had been given a copy of these additional conditions,
16
such notice was inconsequential because the agency had not complied with
17
the rule making process for notice and comment:
18
19
Appellant received a copy of these “additional
20
21
conditions” from Supervisory Park Ranger Philip
1 assumption that it could unilaterally elect to issue rules and bypass the rule
2
making process:
3
4
The Park Service interprets clause 13 as granting it
5
the authority to impose new substantive restrictions
6
uniformly on all demonstrators in any national
7
8
capital region park, without engaging in notice and
22 for any rule that does not fall within certain express
23 exceptions. See § 553 (b)-(e). The Park Service cannot
24 construct its own veto of Congressional directions.
25 See Federal Election Commission v. Democratic
26 Senatorial Campaign Committee, 454 U.S. 27, 32, 70
27 L. Ed. 2d 23, 102 S. Ct. 38 (1981).
28
20
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 21 of 39 Page ID #:1288
9 F.2d at 348, the Court began its discussion of this issue by observing that “the
10 APA's notice and comment exemptions must be narrowly construed(,)” 875
11 F.2d at 346, and proceeded to note that “an interpretive rule explains an
12 existing requirement; it does not impose an ‘additional’ one;” that there was
13 no evidence that the agency intended the additional condition to merely serve
14 as a construction of 36 C.F.R. §7.96; and that the additional condition did not
15
even make reference to the CFR provision. 875 F.2d at 346.
16
The conclusion reached in Picciotto does not stand alone and has been
17
further addressed in depth by the body of case opinions vacating convictions
18
and dismissing indictments arising out of sex offender registration
19
prosecutions. A case in point is United States v. Cain, 583 F.3d 408 (6th Cir.
20
21
2009), in which the Sixth Circuit vacated the defendant's conviction under
1 similar to those in Cain, where the defendant had been convicted of a sex
2
offense prior to the enactment of SORNA but was being prosecuted for
3
violating the Attorney General's Interim Rule making the SORNA
4
registration requirement retroactive to pre-SORNA offenders.
5
In vacating the defendant’s conviction, the Court cited Picciotto and
6
Cain with approval, recognizing that strict adherence with the APA is
7
8
required, particularly where criminal penalties are involved:
9
10 . . . we agree with the D.C. Circuit that “a criminal
11 prosecution founded on an agency rule should be
12 held to the strict letter of the APA.” United States v.
13 Picciotto, 875 F.2d 345, 346, 277 U.S. App. D.C. 312
14 (D.C. Cir. 1989); accord Cain, 583 F.3d at 422;
15
Johnson, 632 F.3d [912 (5th Cir. (2011)], at 930. The
16
liberty interest at stake is greater than the ordinary
17
civil interests litigated in administrative cases. This
18
forecloses our adoption of the Government's position
19
that notice and comment are somehow less important
20
21
in criminal cases, and thus easier to waive for good
1 478.11 does not. The two produce entirely antithetical outcomes: yes, the
2
finished blank is a receiver under the “classification”; no, it is not a receiver
3
under section 478.11. A contradictory relationship is not an interpretive one.
4
The testimony at trial by government expert Hoffman indicated that
5
the ATF’s decision to “classify” a machined blank as a receiver reflects an
6
intent on the part of ATF to repudiate section 478.11, an intention apparently
7
8
aimed at promoting the agency’s regulatory objective of expanding the
22 concerns would have been to amend section 478.11 pursuant to the agency’s
23 rule making authority under the APA – not to create a “classification” that
24 bypasses the APA requirements altogether and then use that “classification”
25 to pursue criminal charges as if it operates as law.
26 Nor can the government excuse noncompliance with the APA by
27 invoking the “good cause” exception under 5 U.S.C. § 553(b)(B), which allows
28
27
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 28 of 39 Page ID #:1295
1 notice and comment to be waived "when the agency for good cause finds (and
2
incorporates the finding and a brief statement of reasons therefor in the rules
3
issued) that notice and public procedure thereon are impracticable,
4
unnecessary, or contrary to the public interest.”
5
In the case at bar, neither the FTB nor ATF as a whole has ever issued
6
any such statement. There has been no attempt by the ATF to even so much
7
8
as acknowledge the applicability of the APA’s rule making requirements by
9 issuing any type of statement that purports to invoke any of the exceptions set
10 forth in section 553.
11 What we have in this case, quite simply, is a law enforcement branch of
12 ATF that arrogates to itself the right to issue decisions that contradict the
13 C.F.R. and treats such unilateral decisions as binding law, without any
14 regard whatsoever to the APA, and thinking nothing of using their in-house
15
decision as the basis for criminal penalties against an individual such as Mr.
16
Roh, including the destruction of his business.
17
It would be equally absurd for the government to argue that the
18
“classification” of the fully machined AR-15 blank as a receiver is excused
19
from the APA’s rule making procedures under the “public interest” prong of
20
21
the other notice and comment exception set forth in 5 U.S.C. 553(b)(3)(B). As
22 stated in Cain, “the Government's burden to show that good cause exists is a
23 heavy one--the good cause exception is “‘narrowly construed and only
24 reluctantly countenanced.’” [Citations Omitted].” 583 F.3d at 420. The ATF
25 cannot meet this standard in regard to the “classification” at issue.
26 In conclusion, it is clear that the ATF's decision to “classify” a
27 machined AR-15 blank as a receiver and thus as a firearm constituted a
28
28
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 29 of 39 Page ID #:1296
1 substantive rule that required compliance with the APA's rule making
2
requirements, which the ATF failed to do. Moreover, the ATF did not seek to
3
bypass those requirements by invoking the good cause exception. Nor does
4
any other exception to the notice - comment requirement apply under 5
5
U.S.C. 553. Accordingly, the "classification" does not constitute binding law
6
and therefore cannot serve as the basis for the Indictment in this case.
7
8
Inasmuch as the machining of an AR-15 blank does not produce a receiver
9 under the existing law contained in 27 C.F.R. 478.11, and thus does not
10 produce a firearm, the government's allegation that Mr. Roh engaged in the
11 business of manufacturing firearms is unsustainable. Accordingly, a Rule 29
12 motion for judgment of acquittal on the manufacturing charge should be
13 issued.
14
15
F. A Jury Cannot Reasonably Find That Mr. Roh Acted Willfully
16
Because He Cannot Know His Conduct Is Illegal When In Fact It
17
Is Not
18
In the context of firearms offenses, the government must prove beyond
19
a reasonable doubt that a defendant knew his conduct was unlawful. Bryan
20
21
v. U.S., 524 U.S. 184, 195 (1998). The government’s contention at trial was
22 that Mr. Roh knew his conduct was unlawful, and thus acted willfully,
23 because he had been put on notice by the ATF through the C&D letter and
24 also through the controversial letter dated November 15, 2013 (Gov Exh 134),
25 which was purportedly sent to Mr. Roh a month prior to the C&D letter. But
26 as discussed in this brief, the evidence at trial established that the only thing
27 the ATF put Mr. Roh on notice of was the ATF’s so-called “classification” of
28
29
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 30 of 39 Page ID #:1297
9 videos, which are replete with Mr. Roh’s repeated statements to the agents
10 that he will not violate the law for anyone, and his repeated refusal to provide
11 services that he does know are illegal, such as the assembly of a short-
12 barreled rifle. The trial record establishes Roh’s good faith commitment to
13 the law and his genuine belief that his conduct which is the subject of this
14 prosecution is lawful.
15
16
III.
17
A RULE 29 JUDGMENT OF ACQUITTAL
18
SHOULD BE GRANTED AS TO THE
19
ALLEGATION THAT MR. ROH ENGAGED
20
21
IN THE BUSINESS OF DEALING IN FIREARMS
1 An important fact that came out at trial is that the customers paid up
2
front. Agent Joshua Jackson acknowledged on cross-examination that he
3
was presented with an invoice for the cost of the entire service including the
4
parts and assembly, and this was paid prior to the blank being machined.
5
Thus, by the time the blank was being machined, the customer already owned
6
that blank; and by the time the parts were being assembled into a completed
7
8
rifle, the customer already owned all the parts. Therefore, before the rifle
9 was fully assembled, the customer had already paid and thus owned all the
10 parts at the time the blank was being machined and the parts were being
11 assembled into a completed rifle. Clearly, Mr. Roh did not sell completed
12 rifles as an licensed dealer would hand a customer a rifle over the counter
13 who had walked into the store to purchase a ready-made rifle.
14 Accordingly, a jury could not reasonably find that Mr. Roh engaged in
15
dealing in firearms.
16
17
For the reasons discussed above, this Court should grant Mr. Roh’s
18
Rule 29 motion and issue a judgment of acquittal on all charges in the
19
Indictment.
20
21
IV.
1 A. General Standards
2
A law that is void for vagueness violates the Fifth Amendment by
3
taking away someone’s “life, liberty, or property, without due process of
4
law.” U.S. Const. amend. V. The Due Process Clause “requires that a penal
5
statute define the criminal offense with sufficient definiteness that ordinary
6
people can understand what conduct is prohibited and in a manner that does
7
8
not encourage arbitrary and discriminatory enforcement.” Kolender v.
9 Lawson, 461 U.S. 352, 357 (1983). See, Johnson v. United States, 135 S.Ct.
10 2551, 2556 (2015).
11 There are two independent reasons for declaring a statute
12 impermissibly vague. City of Chicago v. Morales, 527 U.S. 41, 56 (1999).
13 First, the law may fail to “give the person of ordinary intelligence a
14 reasonable opportunity to know what is prohibited, so that he may act
15
accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
16
Second, a law may be void for vagueness if it “authorize[s] and even
17
encourage[s] arbitrary and discriminatory enforcement.” Morales, 527 U.S.
18
at 56. While both factors are important, “the more important aspect of
19
vagueness doctrine is not actual notice, but . . . the requirement that a
20
21
legislature establish minimal guidelines to govern law enforcement.”
22 Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974))
23 (internal quotation marks omitted).
24 “Vagueness challenges to statutes not threatening First Amendment
25 interests are examined in light of the facts of the case at hand; the statute is
26 judged on an as-applied basis.” Maynard v. Cartwright, 486 U.S. 356, 361
27 (1988). As-applied challenges ask whether the defendant “received fair
28
33
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 34 of 39 Page ID #:1301
1 warning of the criminality of his own conduct from the statute in question”
2
because “[o]ne whose conduct a statute clearly applies may not successfully
3
challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756 (1974).
4
In this case, section 922(a)(1)(A) of the GCA, codified in 18 U.S.C.
5
Chapter 44, is impermissibly vague as applied to Mr. Roh because it failed to
6
give fair notice of the prohibited conduct and it encouraged arbitrary and
7
8
discriminatory enforcement, particularly where the ATF applied the statute
22
23 When 18 U.S.C. § 922(a)(1)(A) is read in conjunction with 27 C.F.R.
24 478.11, there is no constitutional vagueness issue because section 478.11
25 makes it clear that a machined AR-15 blank is not a receiver and that Mr.
26 Roh therefore was not producing firearms through the use of the machinery
27 at his business. Under the reading of section 478.11, Mr. Roh is innocent of
28
35
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 36 of 39 Page ID #:1303
1 v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000)) (internal quotation marks
2
omitted).
3
While 18 U.S.C. § 922(a)(1)(A) prohibits “any person except a licensed
4
importer, licensed manufacturer, or licensed dealer, to engage in the business
5
of importing, manufacturing or dealing in firearms . . . .”, the statute and its
6
related statutes cited earlier in this brief and also in the defendant’s trial
7
8
brief do not provide definitional guidance as to what it means to be a
22 publications.
23 Moreover, as to dealing, there is nothing in the statute or C.F.R.
24 provisions that speak to the illegality of the type of business operated by Mr.
25 Roh, where customers buy parts and accessories and assemble their own AR-
26 15 with assistance from Mr. Roh and his staff.
27 At trial and also in the course of pretrial motions, this Court has been
28
37
Case 8:14-cr-00167-JVS Document 124 Filed 03/09/18 Page 38 of 39 Page ID #:1305
1 made aware of ATF Ruling 2015-1 that was issued in January 2015 - a year
2
after the ATF shut down Mr. Roh’s business. ATF Rul. 2015-1 addressed
3
with precision the specific business practice that Mr. Roh was engaged in. To
4
the extent agency guidance through formal rulings can suffice for purposes of
5
fair notice under the due process standard, no such guidance was provided
6
by the ATF to Mr. Roh prior to the execution of the search warrant in
7
8
February 2014.
9 But once again, even if the ATF had issued ATF Rul. 2015-1 back in the
10 period when Mr. Roh was operating, that ruling was defective in its analysis
11 because it was based on a false premise, namely that the machining of a blank
12 constitutes the manufacture of a receiver - firearm, which it clearly does not.
13 Thus, we have a classic due process violation here where the ATF did
14 not issue any formal agency guidance addressing the business practices until
15
a year after the business was shut down through ATF Rul 2015-1; but even if
16
such guidance had been issued in a timely manner while Roh was operation,
17
it is analytically defective, which means that ATF Rul 2015-1 could not have
18
been constitutionally sufficient as notice even if it had been issued back in
19
year 2013.
20
21
In short, the government’s case is a mess from a constitutional