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Thread: 'Broken gun' conviction upheld by court

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    Let this poor man out of prison already.

    -----------------------------------------------------------

    By Bob Unruh
    2009WorldNetDaily

    What a federal agent did during a testing procedure to result in "automatic" fire from an AR-15 has no bearing on the case of a man convicted of transferring a "machinegun" after he loaned to a prospective buyer the gun he considered a semi-automatic rifle, according to a ruling from a panel of appellate judges.
    The ruling has come in the case of David Olofson, a Wisconsin man sent to prison for 30 months after a semi-automatic rifle he loaned to a prospective buyer unleashed several bursts of multiple rounds and then jammed.
    His defense team had explained the case is about nothing more than a malfunctioning gun, and there was evidence to support that. But according to judges Daniel Manion, Michael Kanne and Virginia Kendall of the 7th U.S. Circuit Court of Appeals the weapon is a machinegun, and government information about the tests that determined that are not pertinent.
    Constitutional lawyer Herb Titus, who argued at the appellate level on behalf of Olofson, said the government's case was simple: "Olofson's malfunctioning semi-automatic rifle functioned as a machine gun because it fired more than one shot at the single pull of a trigger."
    However, Titus contended the government's position is contrary to fact, established law and precedent.

    The government even, in Olofson's case, applied a definition "contrary to the Bureau of Alcohol, Tobacco, Firearms and Explosives own definition in a guide to law enforcement," Titus had argued.
    Under this government definition, regardless of the reason, a gun is a machine gun if more than one bullet is fired with a single pull of the trigger. That could apply to grandpa's double-barreled as well as the local police sidearm, if it malfunctions similarly, he said.
    The normally accepted definition of a machine gun is a weapon that will fire repeatedly until the trigger is released or the ammunition exhausts. But in Olofson's case, the trigger was pulled, the first tests showed no "automatic" action.
    Then the government reported a change in the type of ammunition used and the rifle loosed off several shots and jammed.
    "By this time, the weapon had been in the hands of the ATF for four months. What caused the functional change in the weapon to fire as it had not done before is unknown, although the ATF agent did acknowledge that the change in the outcome from the October test resulted from a change to 'softer primer' ammunition," the appellate documents said.
    But the court ruling said neither documentation of the procedures used by the ATF to test the AR-15 nor correspondence between the ATF and the maker about the ability of the AR-15 to fire automatically were needed to reach a guilty verdict.
    "Regarding the first non-disclosed item – the ATF's internal procedures for test-firing AR-15 rifles – Olofson says he wanted that information because '[f]ailure to follow those procedures by changing the type of ammunition in the second test could demonstrate that the tests had been manipulated to arrive at a reversal of the results of the first test,'" the court said.
    "We do not see how that information 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 ammunition or in the prohibited fashion during the first test-fire.
    "The government’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 confidence in the outcome of the trial," the court said.
    "With respect to his request for the ATF's correspondence with the manufacturer of his AR-15 concerning the use of M-16 parts in early AR-15 rifles, the defendant contends 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 document in camera, stated that it was not exculpatory, and placed it under seal. We subsequently ordered that document to be unsealed," the appellate judges wrote.
    "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-15 receivers may permit the weapon to fire automatically even though an automatic sear is not present," the court ruled. "It has no bearing on Olofson’s knowledge of whether his AR-15 was a machinegun."
    Olofson also argued documents relating to the ATF's registry procedures were needed "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."
    "We do not see how the ATF's opinions or positions regarding the presence of M-16 parts in AR-15 rifles are the least bit germane," the judges wrote.
    One Internet observer wrote that in light of the Olofson decision, the Miranda warning, well-known for its directed advisory to suspects about their rights, would begin like this:
    You have the right to remain silent and refuse to answer questions. Not that it will do you any good. Do you understand?

    Anything you do say, or we say you say if we have more witnesses than you, will be used against you in a court of law, if we think we can get away with it. Do you understand?

    You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. You will not have a chance to challenge our lack of standards or scientific method in our lab results and your expert witness will not be allowed to witness anything if we can help it. Do you understand?...
    A participant at the forum page on David Codrea's gun page said, "Did anyone seriously think that this would go any other way? The judges had this thing 'fixed' before it went to court the first time."
    "Chugachugachuga CHOO CHO! Another railroad job," said another.
    The defense has explained that the rifle involved, the AR-15, is made with some of the same parts as the automatic M-16, and the problem was caused by "a malfunction, known as 'followdown' created by the failure of the disconnector to retain the hammer in a cocked position after the discharge of each round."
    WND reported earlier when the Gun Owners of America launched a campaign to help support Olofson's family.
    Olofson, of Berlin, Wis., surrendered to federal authorities last July to begin his 30-month prison term.
    "A gun that malfunctions is not a machine gun," Larry Pratt of Gun Owners of America said that the time. "What the [federal Bureau of Alcohol, Tobacco, Firearms and Explosives] has done in the Olofson case has set a precedent that could make any of the millions of Americans that own semi-automatic firearms suddenly the owner [of] an unregistered machine gun at the moment the gun malfunctions."
    ATF officials have declined to speak with WND on the record.
    "It didn't matter the rifle in question had not been intentionally modified for select fire, or that it did not have an M16 bolt carrier … that it did not show any signs of machining or drilling, or that that model had even been recalled a few years back," said a commentary in Guns Magazine on the case.
    "It didn't matter the government had repeatedly failed to replicate automatic fire until they replaced the ammunition with a softer primer type. It didn't even matter that the prosecution admitted it was not important to prove the gun would do it again if the test were conducted today," the magazine said. "What mattered was the government's position that none of the above was relevant because '[T]here's no indication it makes any difference under the statute. If you pull the trigger once and it fires more than one round, no matter what the cause it's a machine gun.'
    "No matter what the cause."

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    Wow is this disturbing...such a thing could happen to any of us. If we had a legitimate president, now would be a good time for checks and balances, but we unfortunately don't.

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    "It has no bearing on Olofson’s knowledge of whether his AR-15 was a machinegun."

    So, mens rea no longer applies in federal court?

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    And since he was convicted in Federal court, he willNEVER get hissecond amendmentrights back, UNLESS congress restores the funding for the program through the BATFE.

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    Swampbeast wrote:
    Wow is this disturbing...such a thing could happen to any of us. If we had a legitimate president, now would be a good time for checks and balances, but we unfortunately don't.
    Wow, that contibutes to a discussion about a court case.

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    Regular Member SAvage410's Avatar
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    Gun owners of America has set up a donations page to help defray his mortgage/car payments while he's in prison and unable to work. Not certain if it also serves as a defense fund for appeals.

    The link is here:

    http://gunowners.org/olofson.htm

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    The president could pardon him. Not likely to happen though.

    What else do you expect from the ATF? They don't have any real testing standards and if they do they sure don't let anyone know. Hell, this is an agency that said a shoestring is a machine gun. http://jpfo.org/common-sense/cs55.htm

    I don't understand how this crap flies in a courtroom.

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    N00blet45 wrote:
    The president could pardon him. Not likely to happen though.

    What else do you expect from the ATF? They don't have any real testing standards and if they do they sure don't let anyone know. Hell, this is an agency that said a shoestring is a machine gun. http://jpfo.org/common-sense/cs55.htm

    I don't understand how this crap flies in a courtroom.
    Their courtroom.

    Justice system is a misnomer for what we have in the United States now.

    We have state penal codes and federal penal codes.

    Where is the justice in putting a man in jail for 30 months, even if it was for possession of a real machine gun?

    Where's the NRA?

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    It sounds like Mr. Olafson has a great civil suite against the gun manufacturer, the dealer and the ATF for allowing the sale of a machine gun in violation of law. The 7th circuit has ruled it is a machine gun and once a MG always an MG! Obviously the only real "offender" in this case is the Federal government.

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    SOneThreeCoupe wrote:

    Where's the NRA?
    I asked the NRA the very same question. This is the reply I received.

    Thank you for your email to the NRA-ILA regarding the Olofson case. NRA has and will continue to assist Olofson counsel in this and similar cases. As is common practice, NRA seldom publicly discusses our involvement in active criminal cases, to avoid prejudicing the defendant's case.

    The fact that the defendant or his attorney may want to discuss our involvement does not alter our policy in this regard. If you have further questions or need more information, please contact us at (800) 392-8683. We appreciate your support.

    Sincerely,
    Krista Cupp
    NRA-ILA Grassroots Division

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    In other words...."Look over here! Pay no attention to the man behind the curtain!"



    That's terrifying.

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    Wow, wtf is wrong with that court. They know perfectly well that the statute in question was never intended to be used in this manner. Courts are supposed to also rule based on historical legislative intent in cases like this, and they clearly overlooked that aspect entirely. The prosecutor, the original court, and the 7th, were clearly not doing their job properly.

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    You know what really pisses me of is that there's a quick clip in this video that shows someone carrying like10 AR-15's RIGHT AFTER they mention the raid on his house. THOSE WERE NOT HIS GUNS. That was a video clipsome other gun confiscation, yet they make it appear like he had tons of guns at his house.

    Pathetic !

    http://www.cnn.com/video/?/video/bestoftv/2008/03/13/ldt.tucker.govt.guns.cnn

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    "Accidents happen." Chief Justice Roberts, Dean v. United States __ U.S. __ (2009).

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    mark edward marchiafava wrote:
    After reading most of the transcript in this matter, I have a totally different view of this than when the story first broke.
    Seems everything is NOT as it appears. Especially disturbing is GOA's handling of this matter. Olofson is NOT the innocent martyr we've been lead to believe.
    Before anyone sends any money to Larry Pratt, go read the transcript of the trial.

    Starting to smell like something straight out of NRA.............
    I do not agree with your statement. I did read the transcript just now. Specifically, Len Savage, the defense expert witness, declared unambiguously that:
    1. The rifle was malfunctioning
    2. The rifle in question did not have the frame or receiver of a machine gun
    3. The rifle in question had an AR-15 bolt carrier, vs. an M-16 bolt carrier
    4. The rifle in question did not have an auto-sear
    5. He had spoken to the manufacturer, Olympic Arms, and that they had stated to him that, prior to 1986, most AR-15s were manufactured with M-16 fire control components. Specifically, "They would have used an M-16 trigger, disconnector, hammer. Sometimes a selector, sometimes not."
    Item 5, in particular, directly contradicts the testimony of firearms enforcement officer (FEO) Max Kingery, who, based on the presence of these components, concluded that the weapon had been illegally modified so as to operate in full automatic fire mode. Mr. Kingery noted under oath that, unlike Mr. Savage, he had NOT contacted the manufacturer.

    The government in this case makes a point that Mr. Olafson had in his possession a PDF file showing how to convert an AR 15 to full auto fire. They also admitted, however, that this was but one of many documents found on Mr. Olafson's hard drive, and that it appeared that this document, as well as many others was copied from a CD rather than having been specifically downloaded for the purpose of converting his rifle to full auto. In that event, it's entirely possible that Mr. Olafson simply overlooked it. The government's computer forensics expert, Mr. Paul John Harding, was not able to testify, based on the file's last access time, that Mr. Olafson had accessed the file recently, had printed it out with intent to use it as an instruction manual, etc.

    It's entirely possible that Mr. Olafson was convicted based on the strict phrasing of a poorly-worded law. Based on my reading of the transcript, that is my belief at this point.

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    mark edward marchiafava wrote:
    After reading most of the transcript in this matter, I have a totally different view of this than when the story first broke.
    Seems everything is NOT as it appears. Especially disturbing is GOA's handling of this matter. Olofson is NOT the innocent martyr we've been lead to believe.
    Before anyone sends any money to Larry Pratt, go read the transcript of the trial.

    Starting to smell like something straight out of NRA.............
    Question: in a just society, one with laws based not on arbitrary and unfair "public good" but rather on justice and rights, should this man be convicted of any single charge? Should the law even exist in the first place?

    Has this man injured anyone? Has he caused any physical harm?

    We are firearm rights supporters and activists. To support only OC is to undermine the whole of the cause. We must support the whole right, not a narrow portion.

    The fact of the matter remains that Olofson is an innocent man. His actions did not result in any injury.

    As always, I am not advocating the breaking of any laws, simply pointing out that what we have here is a perversion of justice to fit some progressive notion of "public good."

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    SOneThreeCoupe wrote:
    The fact of the matter remains that Olofson is an innocent man. His actions did not result in any injury.
    Interesting comment there. Are you saying that because his actions did not result in any injury he is innocent and guilt only applies if someone is injured? How about white collar crime such as the $billion swindle that wiped out people's life savings?Would you consider that injury or does it have to be physical injury?

    On a side not after reading much more of the case against Olofson from sources other that World net Daily and similar I think Olofson was guilty as sin. Now whether on not the law is just is a different story but this was not a broken gun case but rather a deliberate attempt to make a gun fully automatic.

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    What exactly was deliberately done to make the gun full auto?

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    Founder's Club Member Brass Magnet's Avatar
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    I watched this case and continually perused the threads at ARFcom from the beginning and something always smelled fishy.

    I agree that the trial and the ATF's tests were crap. Also, IMHO,the laws governing this exceed congress' powerunder the commerce clause to regulateMG's anyway. Because of this I believe this was a perfect case for Jury Nullification.

    However; I also agree with Mark, there is other stuff going on here. Mr. O was well aware of the "malfunction". Healso had his parents sign an affidavit that somone (presumably the ATF) had "planted" an auto sear at his parents house. He also claimed it wasn't the first time someone had "planted" an auto sear. Mr. OProbably had an auto sear to slip into his AR.


    Edit: grammar
    R[ƎVO˩]UTION

    ΜΟΛΩΝ ΛΑΒΕ

    Lex malla, lex nulla

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    FWIW

    http://en.wikipedia.org/wiki/David_Olofson


    David Olofson is a U.S. Army veteran who was tried and convicted by the U.S. Federal government on the charge of "transferring an unregistered machine gun" after he lent his 20-year old AR-15 rifle to a friend, Robert Kiernicki, and it malfunctioned on a shooting range, emitting multiple rounds and immediately jamming three times in a row, which aroused suspicion that the rifle was in fact an automatic weapon.[1][/suP][2][/suP]

    Kiernicki testified that Olofson had told Kiernicki that the third position of the rifle's firing selector was for automatic firing, but it jammed, court records indicate. He also testified Olofson told him he had fired the weapon on the automatic setting at that same range without a problem.[3][/suP] According to Len Savage, a weaponry expert who runs Historic Arms LLC, BATFE paid Kiernicki an undisclosed amount of money for his testimony.[4][/suP]


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    Having just read the entire transcript (not as an impartial juror, but as someone who has a clue about how firearms actually work), I find no fault with Olofson, and plenty with the government.

    If something stinks about this case, it's not indicated in the transcript.

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    PT111 wrote:
    SOneThreeCoupe wrote:
    The fact of the matter remains that Olofson is an innocent man. His actions did not result in any injury.
    Interesting comment there. Are you saying that because his actions did not result in any injury he is innocent and guilt only applies if someone is injured? How about white collar crime such as the $billion swindle that wiped out people's life savings?Would you consider that injury or does it have to be physical injury?
    Obviously when someone embezzles your money they have injured you.

    When a man fires three rounds at a paper target with one trigger pull, this does not injure you, nor is there any demonstrable intent to injure someone.

    Pretty simple to me.

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    PT111 wrote:
    SOneThreeCoupe wrote:
    The fact of the matter remains that Olofson is an innocent man. His actions did not result in any injury.
    Interesting comment there. Are you saying that because his actions did not result in any injury he is innocent and guilt only applies if someone is injured? How about white collar crime such as the $billion swindle that wiped out people's life savings?Would you consider that injury or does it have to be physical injury?

    On a side not after reading much more of the case against Olofson from sources other that World net Daily and similar I think Olofson was guilty as sin. Now whether on not the law is just is a different story but this was not a broken gun case but rather a deliberate attempt to make a gun fully automatic.
    Indeed. Fraud is an indirect form of physical force. One man receives the fruits of another's values, goods, or services without paying for them and keeps them without consent, or intent, of their owner.

    Olofson is not guilty by any stretch of the imagination. To pretend that his trial was a legitimate exercise in lawful governmental behavior rubs salt into his wound, his prison sentence for a crime which is not.

    The government, by initiating the physical force resulting in his prison stay, has violated his right without him having violating anyone else's. Without justice, what can a court of law stand upon?

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    Tomahawk wrote:
    Obviously when someone embezzles your money they have injured you.
    Indeed. It always amuses me when people seem to have a hard time understanding that "aggression" and "injury" may apply to acts which are not of a strictly violent nature.

    I believe it is indicative of an underdeveloped understanding of the concept of aggression and how it should be applied to crime and punishment.

    Tomahawk wrote:
    When a man fires three rounds at a paper target with one trigger pull, this does not injure you, nor is there any demonstrable intent to injure someone.

    Pretty simple to me.
    As for any (undisputed) action, the test is quite simple. Does it constitute an act of aggression?

    In this case, not unless paper has feelings.

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    oops

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