ATF has a FOIA link on its home page (www.atf.gov); also, be sure to read the Department of Justice FOIA Reference Guide at http://www.usdoj.gov/oip/04_3.html.
   

Readers should understand that the author of article referred to in the document that Mr. Hardy posted ("ATF Under Seige," by Erik Larson, published in Time magazine on July 24, 1995) is not the same Eric M. Larson who has encouraged ATF, via Congressional testimonies and statements from 1996 to 2001, to render the NFRTR accurate and complete.

Mr. Hardy is a former attorney for the U.S. Department of the Interior, and brings a D.C. insider's perspective to the ATF situation. Mr. Hardy's blog entry states, and NFAOA quotes him exactly, as follows:

Posted by David Hardy - 30 September 2007 09:49 AM
I've received the attached pdf file (small, 134K) from someone in the know. It details ATF agents' complaints regarding how managers are conducting themselves. Here are a few snippets:

" Field agents have attempted to challenge the un-ethical, and illegal actions of field managers through various means in recent years only to meet with retaliation so destructive it almost inevitably results in the challenges or allegations being withdrawn."

" Fear of ATF leadership has replaced transparency. Lack of trust and the absence of good faith in trying to resolve these issues have caused a growing number of Agents to rely upon legal means to invoke the protections and seek redress. Record numbers of EEOC, OIG, OSC, whistleblower and internal grievances face the new management team. Requests for congressional intervention by Agents across the country..."

"The EEOC complaints over the last 2 years number in the hundreds. The overwhelming percentage of which contain allegations of retaliation. "

" First impressions in the field are that Acting Director Michael Sullivan is a competent and professional leader who possesses the skill to lead the Bureau of ATF&E. However, he continues to act on filtered information from those who have created these problems. These problems and those responsible must be dealt with before the Bureau can restore trust in it management team. With the appointment of Deputy Director Ronnie Carter and Assistant Director Billy Hoover, the signal was clear. The intent is/was to restore ethical and professional leadership to the Bureau. Perhaps the problems are too significant to place on the shoulders of 3 men, or maybe the Bureau is beyond repair. Either way, the complaints continue as does the retaliation, abuse of authority and the climbing number of EEOC, OSC, OIG and internal grievance complaints."

Having worked in the bureaucracy, I can see the comment about the incoming director. The guy on top may be good, but he knows only what his assistant directors tell him, and they know only what the guys below them tell them, etc., etc. At each stage of this, information is filtered to remove bad news, protect your unit, protect your buddies, etc.. If you send up info that makes your unit look bad -- that's gonna hurt you when your superior does your yearly evaluation, right? By the end of the filtration, the guy in charge hears nothing but "Everything is being run perfectly, and there are no problems, and anyone who managed to get your ear about problems is a lying sack of offal." Then of course they hunt down the guy who talked. He's not a team player. He makes his bosses look bad. Jack him around, transfer him around, seek out excuses to give him a bad evaluation, maybe see if you can tag him with misconduct (hmmm... did he use his official car for a grocery run?).

The greatest fear of mid-level is that the boss may get unfiltered information. At Interior I was a simple staffer. Even my secretary didn't work for me -- she reported, like me, to my boss. Yet one day we received written orders that if the Secretary of Interior called us to ask for data on a legal case, we were to refuse to talk to him and tell him to go thru channels. (The order was given, and stuck, because our ultimate boss had in fact better White House connection than the Secretary. Our ultimate boss was a good guy, not a bureaucrat, so I'd wager the mid-level folks had gone to him with horror stories about the Sec. becoming a loose cannon if he got real data, and sold him on the idea).
   

GLENN HARLAN REYNOLDS
University of Tennessee College of Law
1505 West Cumberland Avenue
Knoxville , TN 37996-1810
United States
865-974-6744 (Phone); e-mail reynolds@libra.law.utk.edu
   

The first-class scholarship and citation of sources in this exchange makes this debate particularly informative.
   

This web site, linked here for convenience of NFAOA readers, was created and is maintained by Alan Gura, one of the attorneys for the plaintiff. As attorney Gura states: "We've established this website to better inform and communicate with the public about our case, Parker v. District of Columbia, challenging the constitutionality of Washington, D.C.'s various gun bans," further noting that "this blog will also contain news update, insights, and other commentary about this historic case."

It would be impossible to duplicate the work that has gone into Mr. Gura's website on the NFAOA website, and by making a link to Mr. Gura's website available here, NFAOA hopes to assist in making information available about this important case.
   

Shortly after Mr. Bardwell entered the private practice of law in Colorado in 2001 and discontinued his work on what has become known as the "Bardwell NFA Law" site, he granted a permission for Daniel Brewster of South Elgin, Illinois, to post his work on TitleII.com. In the interest of assisting the Class III community, NFAOA is posting this link so readers will have access to this historic and valuable resource. The description of the Bardwell site posted on Title II.com is as follows, and quotes Mr. Brewster's introduction to it:

"Welcome to the James Bardwell NFA Site. This site, www.titleii.com/BardwellOLD, is a mirror site of the James Bardwell site. It is current as of January 17, 2002. I created this mirror site because of the tremendous value of the information contained within. I'm going to slowly change the format, layout, and indexing of this information over time, but all of the data will remain. Please direct questions and comments to danbrew@titleii.com. James has granted permission for the mirror site to exist."

NFAOA urges readers to donate what they can to Mr. Brewster to help defray his costs of providing information to the NFA community, which includes providing current copies of virtually all ATF forms used by collectors, dealers and citizens. Forms for individuals include Form 1, Form 4, Form 5, Form 5320.20, and Certificate of Compliance. Forms used by dealers include Form 2, Form 3, Form 4, Form 5, Form 6, Form 6a, Form 9, Form 10, Form 11, Form 5300.38, Form 5330.4, Form 5300.42, and Form 5630-7. Following a tradition established by Mr. Bardwell, Mr. Brewster has always offered key services free of charge.
   

To read a copy of "Institutional Perjury" published in the Congressional Record (Extensions of Remarks), Vol. 142, August 2, 1996, pages E1461-E1462, click here.
   

On September 25, 2007, Dario Giambro of Auburn, Maine, was convicted of the felony charge of Possession of Unregistered Firearm, a Model 1908 Marble's Game Getter Gun. The case is United States vs. Dario Giambro, Criminal Number 07-41-P-S, United States District Court, District of Maine. Before trial, on August 17, 2007, Chief United States District Judge George Z. Singal denied motions in limine to allow testimony by Eric M. Larson as an Expert Witness on the NFRTR, and in seeking to have the NFRTR declared insufficiently reliable for purposes of criminal prosecution (click here to read the motions). Judge Singal determined that Mr. Larson's statements "largely contain conjecture, speculation, and lack any scientific basis" (click here to read Judge Singal's order), referring to July 18, 2007, Declaration by Mr. Larson (click here to read it).

In his order, Judge Singal also cited United States vs. Rith (164 F.3d 1323, 10th Cir. 1999) as the most reliable evidence of the reliability of the NFRTR (click here to read the Rith case), which cites a 1996 audit of the NFRTR by the Audit Services Division, Department of the Treasury, that reported a "critical-error" rate of "no more than 1.5%," and rejected what he termed "outdated" records. In fact, the NFRTR was partially audited by the Treasury Department Inspector General in 1998, and published audit results indicate "critical error" rates of 4.3% for Form 4467, 8.4% for "Letter" and 7.9% for "Other" NFRTR records. Importantly, unpublished Work Papers from the 1998 audit disclose that Treasury IG auditors initially found an 18.4% "critical error" rate for Form 4467; the results for "Letter" and "Other" categories were redacted completely. In response to these initial audit findings, ATF changed the definition of "critical error," as the error summary table shows, to lower the "critical error" rate to that reported in the published report. The same sample of NFRTR data was analyzed for both sets of results. The difference was how "critical error" was defined; that is, analyze the Form 4467 data one way, the results are an 18.4% critical error rate; analyze it using a different definition for critical error, and the critical error rate drops to 4.3%. Indeed, the reaction of NFA Branch staff during "a review and discussion of database error analysis" by Treasury Department IG auditors, held June 17, 1998, was that "the results obtained by the OIG audit were disappointing at best and could have serious consequences for the ATF firearms registry mission."
   

In Volume I (click here to read it), the trial groundwork is laid on June 18, 2007. The Judge issues instructions to the Jury on how to receive and interpret evidence in the case, and the charges against Mr. Kwan are laid out by the prosecution and rebutted by defense counsel. As the transcript discloses, since age 18, Albert Kwan has collected military firearms and ancillary items, such as uniforms, and amassed a considerably large collection, which included "fake guns, dummy guns, BB guns, anything that had historical significance." ATF charged him with unlawfully possessing an M-14 machine gun, although it "had been welded shut --- the sear, which is what makes it function as a fully automatic weapon, was welded on to the receiver. The receiver had been physically changed by deep-penetrating welding so that it would not fire in fully automatic mode." Mr. Kwan was also accused of possessing a shoulder stock for a Heckler & Koch VP70, a semiautomatic pistol. ATF contended that because he possessed a stock that would attach to the VP70, and the firearm was not registered as a short-barreled rifle, Mr. Kwan violated the NFA.

In Volume II (click here to read it) ATF Firearms Enforcement Officer Adam Cornell Galbraith testifies on June 19, 2007, how he altered Mr. Kwan's M-14 by using "a Dremel-type tool, a rotary tool, with a cutting wheel to cut through the welded sear release and selector shaft," removed those parts, and "substituted parts from the national firearms collection to determine the ease with which" the M-14 "could be readily restored" to fire in fully automatic mode; that is, as a machine gun. Mr. Galbraith also testified that he attached the shoulder stock described in Volume I to the Heckler & Koch VP70, fired the weapon, and concluded that it was a short-barreled rifle. Under cross-examination, Mr. Galbraith testified that ATF has "a standard operating procedure manual that covers all the different tasks and responsibilities that the Firearms Technology Branch is responsible for," then said he didn't believe the manual was available to the general public, or that there was "a requirement to use a stop watch to determine" how long it would take to convert a semiautomatic firearm into a machine gun. He also said testified that "any semiautomatic firearm could be converted into a full automatic firearm . . . [w]ith enough time and effort."

In Volume III (click here to read it), Albert Kwan testifies on June 20, 2007, about personal background, his hobby of collecting firearms and military items, and the range of items in his collections. Richard Vasquez, Acting Chief, Firearms Technology Branch also testified that it is an "unwritten regulation" and "unwritten policy" for FTB to examine firearms for manufacturers to determine whether or not they are machine guns, and that this service is not available to the general public. Assistant Chief Vasquez also testified that "We have classified firearms that were not machineguns and then reclassified them as machineguns," and acknowledged that "the FTB is human, they make mistakes." This transcript is also interesting because it memorializes how ATF misled the Court regarding the short-barreled rifle charge against Mr. Kwan. As we have seen, Mr. Kwan was convicted of that charge; however, that conviction was overturned on August 3, 2007. To read a copy of the Judge's order overturning the conviction, click here; however, it appears elsewhere in this section under the title "Federal Judge rules ATF acted in bad faith, invalidates conviction for possession of short-barreled rifle."
   

In February 2004, Brian Blakley asked ATF to clarify its position, and in September 2004 ATF responded by reiterating its 1996 determination (click here to read the 2004 letter). Defense counsel made vast use of the September 2004 letter, which resulted in acquittals of charges of possessing unregistered machine guns. The reason is that defense counsel was admitting into evidence and reading to the jury the fact that ATF had determined a shoestring, in and of itself, to be a machine gun. Possibly as a result of these continuing legal setbacks, ATF initiated a review of the "shoestring trick" determination and in June 2007 reversed its position (click here to read the 2007 letter). Importantly, this reversal of position was not done in response to a request by Mr. Blakley or anybody else; it was internally initiated by ATF, and ATF presumably sent the letter to Mr. Blakley to ensure he would not continue to rely on the February 2004 letter as a statement of ATF's position.

In mid-2007, Mr. Blakley was questioned about his motives for making the letters available. Mr. Blakley responded that while he had never to his knowledge disclosed his motives, he had no problem in doing so, and stated: "The initial [February 2004] letter had a very important, serious usefulness (ignoring the 'snicker factor' that many got from it). It has been used in more than one court case to push this point: If ATF has to 'doctor' the gun that they are claiming is a machinegun (during a prosecution) by adding bubble gum, bailing wire, and duct tape to get it to 'go full auto,' then by the logic in the letter, the 'bubble gum, bailing wire, and duct tape' are the machine gun. This is a very important point and I'm not the only person it has mattered to.

Regarding posting the new [June 2007] letter (which I did not request by the way, ATF sent it spontaneously many years after the fact - hmmm, wonder why they did that), the reason I posted it is precisely *because* defense attorneys and experts out there *are* using the original letter (introducing as evidence, using as a basis for arguments, etc.) and I didn't want them to find out ATF modified their position by getting blind-sided in court - I wanted them to know in advance so they could modify their strategies, etc., as appropriate."    

This order for a new trial, written by United States District Judge Thomas S. Zilly, is well researched and suggests that a retrial would not be successful. Long-time NFA attorney David T. Hardy of Tucson, Arizona, made the following comments about this order in his blog, Of Arms and the Law, on August 16, 2007:

One gets the impression the court was a bit put off by ATF. (1) The raid was without any basis. Defendant had been an NFA dealer, and when he went out of that business, transferred an NFA gun to himself. At trial, the U.S. Attorney conceded that was entirely legal. ATF either didn't notice the transfer, or claimed it was illegal in some other way. (2) The court cites an ATF advisory letter which clearly suggests that the count upon which defendant was convicted was without basis.

Basically, he had two shoulder stocks for pistols, and two pistols that would take them. One was a registered full auto pistol, for which the stocks were perfectly legal, and one was an ordinary semiauto pistol ─ which, if a stock were attached to it, would be an NFA short-barreled rifle. The court cites Thompson-Center for the proposition that possession of a set of components that could be made into a short-barreled rifle is not improper if it has "obvious utility" for also making non-NFA handguns or rifles. This is rather the flip side of that: the components had obvious utility for making a registered NFA firearm.

Judge Zilly's order may be cited as United States of America vs. Albert Kwok Leung Kwan, CR06-305Z Order, United States District Court, Western District of Washington at Seattle, August 15, 2007.

The background of the case is that ATF was trying to take Mr. Kwan's FFL for not enough sales and NFA transfers (Mr. Kwan had no paperwork violations). In pursuing Mr. Kwan, ATF did two things: (1) examined every gun in his inventory, by flying out a firearms technology expert, and sending many guns to FTB for further "testing." The ATF took a semiautomatic version of the M-14 and made a machine gun out of it by removing welding and installing full-auto parts (ATF claimed Mr. Kwan's semi-automatic M-14 was a machine gun because it was made from a machine gun ("once a machine gun, always a machine gun"), and that it was also "readily restorable" as well, and it only took a small arms expert, in a government research facility about 30 minutes to make it fire full auto) and (2) later added a superceded charge of possession of an unregistered short-barrel rifle because Mr. Kwan had a Heckler and Koch VP-70 model M (a machine gun), with factory "Holster/Stock" (a plastic version of Luger or High Power wooden holster/stock), a spare "Holster/Stock", and a VP-70 model Z [semiautomatic only]. All these items are perfectly legal. During the attempts to take Mr. Kwan's FFL, the local ATF office came to gather any "post dealer samples" (machine guns manufactured after May 19, 1986). The ATF's own records (the National Firearms Registration and Transfer Record, or NFRTR) are incomplete, and filled with errors. ATF seized Mr. Kwan's VP-70 M machine gun, and stated that according to the NFRTR, this firearm was a "post dealer sample" (later, however, ATF determined it had been imported in 1977 as a dealer sample). ATF left the spare "Holster/Stock," and the VP-70 Model Z (semiautomatic only). ATF later charged Mr. Kwan for "otherwise combined" or constructive possession, because the ATF was able to attach the Holster/Stock to the semiautomatic VP-70 Model Z during a second visit. There was a hearing August 3, 2007, regarding the conviction on the possession of a short-barrel rifle charge, U.S. District Judge Thomas Zilly dismissed the guilty verdict and gave the Assistant United States Attorney the option of retrying the case; click here to read his August 15, 2007, order.    

Mr. Savage apparently so enraged FTB by the time of the Wrenn trial that a few months after the trial, ATF declared one of his company's products to be "illegal contraband" and a "machinegun." FTB had classified this device as a "non-firearm" nine months earlier. Mr. Savage had been in production for months after receiving the "non-firearm" determination letter--and suddenly, for no apparent reason other than spite, his investment was wasted, and he was in jeopardy of becoming a criminal. With his living and freedom in jeopardy, Mr. Savage notified the United States Federal District Court, and the Department of Justice, of ATF's apparent malfeasance. Predictably, the Department of Justice (of which the ATF is a subsidiary) claimed to have investigated itself and found itself faultless. Years after Mr. Savage first began asking questions, the FTB still does not have a documented firearms testing procedure. Today, defense attorneys use an October 2005 Congressional Research Service report to demonstrate the ATF's lack of credibility (click here to read the report).

Unsurprisingly, federal prosecution of "mystery machinegun" crimes have dropped drastically, if not stopped altogether. This is a good thing for justice, because for years too many innocent people were railroaded into prison. Mr. Savage's circumstances are less bright, because ATF has forbidden him to contact ATF in any way other than by written correspondence--which puts him at a disadvantage to all his competitors, who may still freely call ATF to ask questions. Also consider that ATF has "lost" many of Mr. Savage's letters, and not answered some of his correspondence for 14 months, which for all intents and purposes has shut down his business, Historic Arms, LLC, of Franklin, Georgia. This illegal de facto shutdown has occurred without cause or court order, and without the due process allegedly guaranteed by the United States Government. Is Mr. Savage now an enemy of the United States Government?    

IMPORTANT NOTE: Sen. Sarbanes is a co-sponsor of S. 645, the Assault Weapons Ban and Law Enforcement Protection Act of 2005, introduced March 16, 2005. It is heartening to see that an anti-gun Democrat like Sen. Sarbanes is open-minded enough to look beyond partisanship and politics and in effect insist on "good government," which is the real issue here. The NFRTR problems are not "gun control" issues per se, but issues of good government, fair government, and legally principled federal law enforcement. Many if not most politicans refuse to become involved or quoted on any NFA or NFRTR issues---it is a testament to how well our political system can work if we involve our Congressional representatives. For Sen. Sarbanes to be the first Member of the United States Senate to raise the NFRTR problems with the Department of Justice, is a high ethical and legal honor.
   

James Bardwell's comments on United States vs. Whalen, quoted from his mirror web site. "This is a sad one. It happened soon after the 1968 Amnesty, (1970) and after the change to require DEWAT's be registered. Whalen was a cop from Westchester County, NY who had a bunch of mg's (9) acquired while he was a cop. Even though they were live while he was a cop they were apparently not registered. When he left the force he had them welded up, and only one was ever registered as a DEWAT. Then he put an ad in the paper to sell his war memorabilia collection, including the mg's. Needless to say, the folks who showed up with cash were ATF agents. He got busted for 8 counts of unregistered mg's, and 9 counts of transfer without the tax (ATF didn't like the welding job), or an application. The issue here was, were DEWAT's now subject to registration, and the NFA? The court said yes. I don't know what happened to Whalen, he had some defenses to raise at trial as well (like the sufficiency of the DEWATting (as to the tax), and whether he had actually tried to transfer the guns, ATF may have arrested him too early in the negotiations...). The court goes over the ATT Rulings that created the DEWAT program, and the legal distinction between a DEWAT and an unserviceable gun, which was erased by the 1968 changes to the NFA. The case also notes ATF retained all the initial registrations of guns that were re-made as DEWATs and removed from the need to have a transfer application after that. A gun was supposed to be registered, then if it was steel welded in front of an ATT inspector, the gun need not be transferred in compliance with the NFA (i.e., sold by mail without a transfer, or tax). According to the 1980 Senate hearings into the ATF, the DEWAT records were destroyed, without any legal justification, at some point before 1975. This case cites the three Revenue Rulings that created the DEWAT program, and which are on the server as well." NOTE: All the Revenue Rulings cited in United States vs. Whalen are also posted in this section.