Drill instructor convicted after rifle jams

[aileron]

From WorldNetDaily. Scary. Very scary.


Drill instructor convicted after rifle jams
Guardsman guilty of illegally transferring 'machine gun' after firearm malfunctions

Posted: January 13, 2008
1:00 a.m. Eastern


© 2008 WorldNetDaily.com

A drill instructor in the National Guard has been convicted in a Wisconsin federal court of illegally transferring a machine gun after a rifle he loaned to a student malfunctioned, setting off three shots before jamming.

The verdict of guilty on one count in the case against David Olofson was confirmed yesterday by the clerk's office in the U.S. District Court for the Eastern District of Wisconsin.

That means now that anyone whose weapon malfunctions is subject to charges of having or handling a banned gun, according to an expert witness who reports that the particular problem is a well-known malfunction and was even the subject of a recall from the manufacturer.

"If your semiautomatic rifle breaks or malfunctions you are now subject to prosecution. That is now a sad FACT. I guess we know now what Sen. Kennedy meant when he said he looked forward to working with [Acting Bureau of Alcohol, Tobacco, Firearms and Explosives Director] Mike Sullivan on Gun control issues, after his committee approved him for full Senate vote," Len Savage, a weaponry expert who runs Historic Arms LLC, said in a blog.

"To those in the sporting culture who have derided 'black guns' and so-called 'assault weapons'; Your double barreled shotgun is now next up to be seized and you could possibly be prosecuted if the ATF can get it to 'fire more than once,'" he wrote in a blog run by Red's Trading Post.


Red Trading Post manager Ryan Horsley

"Hey, but don't worry," Savage said. "The people testing it have no procedures in writing and the testing will be in secret. Also if you know of information that proves YOUR innocence, maybe the ATF won't claim that it's tax information at your trial and prevent YOUR judge from viewing it."

He told an interview with Jews for the Preservation of Firearms Ownership that Olofson had been instructing a man in the use of guns, and the student asked to borrow a rifle for some shooting practice.

"Mr. Olofson was nice enough to accommodate him," Savage said. So the student, Robert Kiernicki, went to a range and fired about 120 rounds. "He went to put in another magazine and the rifle shot three times, then jammed," Savage said.

A couple of police officers who also were at the ranged immediately approached him and started asking questions about the "automatic" fire, and he told them it was a borrowed weapon.

"Mr. Olofson, being a responsible person, went down to the police station and said, 'I'm in the National Guard. I know what a machine gun looks like. That's not it,'" Savage said.

But instead of having the issues resolve, Savage said, it got worse.

He reported that because of the malfunction, the rifle was seized and sent to the Firearm Technology Branch, the testing arm of the federal agency.

"The examined and test fired the rifle; then declared it to be 'just a rifle,'" Savage said. "You would think it would all be resolved at this point, this was merely the beginning."

He said the Special Agent in Charge, Jody Keeku, asked for a re-test and specified that the tests use "soft primered commercial ammunition."

"FTB has no standardized testing procedures, in fact it has no written procedures at all for testing firearms," Savage said. "They had no standard to stick to, and gleefully tried again. The results this time...'a machinegun.' ATF with a self-admitted 50 percent error rate pursued an indictment and Mr. Olofson was charged with 'Unlawful transfer of a machinegun.'. Not possession, not even Robert Kiernicki was charged with possession (who actually possessed the rifle), though the ATF paid Mr. Kiernicki 'an undisclosed amount of money' to testify against Mr. Olofson at trial," Savage said.

And then during the trial, the prosecution told the judge it would not provide some information defense lawyers felt would clear their client, Savage continued. That included the fact that the rifle's manufacturer, Olympic Arms, had been issued a recall notice for that very model in 1986 over an issue of guns inadvertently slipping into full automatic mode, if certain parts were worn or if certain ammunition was used.

Ryan Horsley, who posts the Red's Trading Post blog, said the results were "very concerning."

"Basically if your Ruger 10/22, Browning Citori Over and Under or Remington 11-87 malfunction and fire more than one round at a time; the ATF will now consider it a machine gun," he wrote.

He told WND he's had personal experience with guns that malfunction and fire more than one bullet. Even double-barreled shotguns, if both shells would be released at once, now could be considered machine guns and illegal, he said.

"This precedent is very dangerous," he said.

Defense attorneys in the Olofson case couldn't be reached immediately to determine whether an appeal would be pursued, but Savage noted the arguments by assistant U.S. Attorney Greg Hannstad, who handled the prosecution.

"Haanstad claimed the law does not exempt a malfunction. He claims that it states 'any weapon that shoots more than once without manual reloading, per function of the trigger is a machinegun.' To clarify when I was on the stand, I asked him, 'Are you saying if I take my Great Granddaddy's double barrel out and I pull one trigger and both barrels go off, it's a machinegun?' He went back to … 'any weapon that shoots…'" Savage said.

On the Red's blog, commenters were incensed.

"'Innocent until proven guilty' has been transformed by the ATF into 'guilty until framed,' said LibertyPlease.

Horsley also told WND the 2008 edition of Firearms Law Deskbook quotes from a 1999 case in which the court concluded the law on automatic weapons "is not intended to trap the unwary innocent, and well intentioned citizen who possess an otherwise semi-automatic weapon that, by repeated use of the weapon, by the inevitable wear and tear of sporting activities, or by means of mere inattention, happenstance, or illfortune, fires more than semi-automatically."

[bear308]

well hell, this is not good.

[smogcity]

WTF...

[Blackwater OPS]

Is this for real?

[Michael303]

Wow, that's creepy. Better make sure you SKS's are clean of cosmo residue and other grime. Unclean bolts lead to slam fires, which are not only very dangerous, but apparently make your weapon into a machine gun in the eyes of the ATF.

[rksimple]

Read the book Unintended Consequences. It's just going to get better with the ATF.:rolleyes:

[Fjold]

Why is there nothing on any other news service about this and why would it be reported on a Sunday?

Federal Courts aren't open on the weekend.

[MrTuffPaws]

WorldNetDaily is hardly what one would consider a reliable source.

[berg]

WorldNetDaily is hardly what one would consider a reliable source.

A big plus one.

[StukaJr]

[never mind]

[aileron]

WorldNetDaily is hardly what one would consider a reliable source.

Thats maybe true, but its not coming out of one place.

http://jerrythegeek.blogspot.com/2008/01/reds-trading-post-len-savage-duck.html

http://redstradingpost.blogspot.com/2008/01/len-savage-duck-hunters-and-sportsman.html

The case.

US v. Olofson, Milwaukee Wisconsin

JFPO audio interview with Len Savage. Shocking interview. Im sure SAS will love this. :D

http://www.jpfo.org/media-sound/len-savage-01-10-08.mp3


30 Page forum comments from AR15.com Check first page!!! Lots of data.

http://www.ar15.com/forums/topic.html?b=1&f=6&t=507483&page=1

Is this for real?

Yup. :(

[Fjold]

"At the same time Mr. Olofson was being charged with "Unlawful Transfer" because the rifle malfunctioned and had a M-16 trigger, disconnector, and hammer; calling it an AR-15 with M-16 trigger parts (not the parts that make a machinegun). The ATF removed "a machinegun" from the NFRTR or NFA registry, claiming it was an AR-15 with M-16 parts, therefore NOT "a machinegun". I have the documents, I can prove this.

The court was never shown this information. When Mr. Olofson's Attorneys requested the court compel the ATF to provide this and other documents that proved his innocence to the court. The ATF Chief Counsel's Office told the court the documents contained tax information (federal excise tax stamp for $200) and the court was prohibited from seeing them. All documents were kept secret from the Honorable Judge Clevert and the rest of the court. Even the letter from the ATF to the manufacturer of Mr. Olofson's rifle from 1986, which mandated a "safety recall" due to the rifle going "full auto" if it malfunctioned. ATF Chief Counsel told AUSA Haanstad, who then told the court "The Court will have take our word, that the documents in question contain tax information and contain no exculpatory evidence".




Why would there be a $200 tax stamp on a semiautomatic rifle?

[adamsreeftank]

Convicted with secret evidence the judge can't even see.

I guess it's off to the Gulags with him them.

[spgk380]

I find this story seriously hard to believe. Courts might be dumb, but they aren't that dumb. I'll believe it when I see it in a real newspaper.

[Fjold]

If you Google "US V Olafson" it just brings you back to the same articles.

[pnkssbtz]

I find this story seriously hard to believe. Courts might be dumb, but they aren't that dumb. I'll believe it when I see it in a real newspaper.

Copy of court documents here:

http://www.ar15.com/forums/topic.html?b=1&f=6&t=507483

[mk19]

was the third riech even this anal ??? i know the commies were.

[AaronHorrocks]

If it was infact a fully automatic; then handing it to a person under 18 is a felony.

(The above sentence is the LAW, and does not include my opinion)

[metalhead357]

tag while I get the popcorn...........:cool:

[rksimple]

Has anyone here gone through the arfcom thread on this? The guy convicted has been giving a play by play over there for a few months on this. Its..absolutely...sickening...

[SemiAutoSam]

IF the link worked I might but then this almost exact thing happened to me in 1986 it was a SGW CAR15 rifle.

I purchased a Semi Auto AR15 style rifle from a gun shop in Glendale went to The Middle shooting area in the Angeles National Forest and was arrested by a pair of US Forest Rangers / LEO types.

The rifle would fire a round when the trigger was pulled and then would also fire another round when the trigger was released.

As well all of the fire control parts in the lower receiver but one were M16 parts.

I think the disconnect was a modified M16 part.

My case didn't take as long as Matt's but I did spend in the area of 15K and at that pled to a lesser charge that was a M not a F.

Here is the thread where I originally told the tale.
http://www.calguns.net/calgunforum/showpost.php?p=298023&postcount=21


Shocking interview. I'm sure SAS will love this. :D[/COLOR][/B][:(

[gazzavc]

So if we can cut to the bottom line here, what was the outcome ??

Gaz

[aileron]

So if we can cut to the bottom line here, what was the outcome ??

Gaz

Very top line of the article. Note date and outcome. Im giving you a itty bitty hard time, I know its a lot to read, but hey, how can I resist. :D


January 13, 2008
1:00 a.m. Eastern


© 2008 WorldNetDaily.com

A drill instructor in the National Guard has been convicted in a Wisconsin federal court of illegally transferring a machine gun after a rifle he loaned to a student malfunctioned, setting off three shots before jamming.

[otteray]

Time to break out the quick, short action lever action rifles like the 30 carbine Marlin Levermatic http://www.leverguns.com/articles/malloy.htm
http://www.leverguns.com/articles/malloy/m1_small.jpg
and the Savage 99
http://www.leverguns.com/images/savage99.jpg

[rksimple]

Time to break out the quick, short action lever action rifles like the 30 carbine Marlin Levermatic http://www.leverguns.com/articles/malloy.htm
http://www.leverguns.com/articles/malloy/m1_small.jpg
and the Savage 99
http://www.leverguns.com/images/savage99.jpg

Thats exactly what they want you to do.

[SemiAutoSam]

Guys keep in mind Vote for RON PAUL and he will delete BATF&E from Federal Government like it didn't ever exist.

[MT1]

jesus, this is scary indeed.

The government is out of control.

[blackrazor]

Wait, let me get this straight.

Any gun with a broken firing pin spring is a potential machine gun?
Any gun with a worn out sear or disconnector is a potential machine gun?
Any gun with a worn out disconnector is a potential machine gun?
Any gun which has a "slam fire" is a machine gun?

By this logic, every semi-automatic firearm has the potential to be a "machine gun". Also, by this logic, just about *every* semi-automatic firearm will become a machine gun if it's shot enough.

There must be something missing here. If this case is as bad as it looks (and I'm not inclined to believe everything I read... I'd like some more references on this), then BATFE can arrest anyone they want for owning just about any semi auto firearm. Especially if they are willing to do a little bit of "behind the scenes" tinkering before the trial.

[bwiese]

Guys keep in mind Vote for RON PAUL and he will delete BATF&E from Federal Government like it didn't ever exist.

Please tell me how a president can remove a gov't agency that was created by and funded by Congress.

He can't.

[Blackwater OPS]

Please tell me how a president can remove a gov't agency that was created by and funded by Congress.

He can't.

According to Bush the exec can treat legislation as a mere suggestion about how to do his job...

[Hopi]

Please tell me how a president can remove a gov't agency that was created by and funded by Congress.

He can't.


Maybe under-fund and marginalize them to the point of irrelevance. Perhaps send them on missions to determine the ideal flow-rate of ketchup.......

[SemiAutoSam]

And we all know how important the ideal flow-rate of ketchup is to liberal democrats.

Maybe under-fund and marginalize them to the point of irrelevance. Perhaps send them on missions to determine the ideal flow-rate of ketchup.......

[Hopi]

And we all know how important the ideal flow-rate of ketchup is to liberal democrats.

It's for the children...

[Rumpled]

If it was infact a fully automatic; then handing it to a person under 18 is a felony.

(The above sentence is the LAW, and does not include my opinion)

What about a Police Explorer?
A coworkers son got to shoot a full auto and my buddy is real jealous.

[383green]

I think it illustrates the incompetence of BATFE that they even need to take a gun to the range and shoot it to determine if it's a machinegun. Besides being dangerous (i.e., if the weapon in question is slam firing and/or firing out of battery due to being dirty, worn or broken, it could blow up in the shooter's face), a brief physical examination by somebody with the slightest knowledge of how firearms work will determine whether the gun is even trying to be a machinegun. It's not like this is rocket science.

[rksimple]

This interview gave some decent insight as to what went down.

www.jpfo.org/media-sound/len-savage-01-10-08.mp3

[ldivinag]

And we all know how important the ideal flow-rate of ketchup is to liberal democrats.


john kerry is very well interested in this study... :43:

[radioactivelego]

Guys keep in mind Vote for RON PAUL and he will delete BATF&E from Federal Government like it didn't ever exist.Meanwhile California legalizes slavery and bans guns.

States rights for life!

[5968]

Read the book Unintended Consequences. It's just going to get better with the ATF.:rolleyes:

Good book, and a long book at that At least it is interesting and keeps you wnating to read it.

[porkchop]

you have got to be kidding me... they even retried the test using softer primered rounds because they failed the first time???

[Lashlarue]

Thank goodness crap like this didn't happen in the 50s. When I qualified with a M2 carbine at Lackland in 1958, the rifle they handed me was defective.My five rounds used for initial sight in, went full auto. I got a royal *** chewing from the TI till he noted the selector switch was in the proper position, then tried it himself and it went full auto again. No apology, but no write up either, they handed me another rifle and without benefit of another sight-in , I qualified sharpshooter.I guess nowadays it would be off to the stockade.

[savageevo]

I hope they appealled this case long enough for heller.

[Ronco]

Check out:

Lou Dobbs Show:

Part 1
http://www.youtube.com/watch?v=bWWW1WOQpDk

Part 2
http://www.youtube.com/watch?v=6EGy5lpy9GY

[Lashlarue]

Considering Lou Dobbs normal far left political views, I find it amazing he took Mr Olofson's side in this matter. I guess there is hope for him, afterall..

[Solidsnake87]

I'm glad I have my own range to shoot on. I've had an accidental AR 2 round burst before. It scared the crap out of me, the weapon had no broken parts. It just malfunctioned that one time. Its never done it since but with all this BS I keep my semi-auto shooting for my range. I only shoot at an actual range when I want to zero at a true known distance.

[RegularLT1]

I think it illustrates the incompetence of BATFE that they even need to take a gun to the range and shoot it to determine if it's a machinegun. Besides being dangerous (i.e., if the weapon in question is slam firing and/or firing out of battery due to being dirty, worn or broken, it could blow up in the shooter's face), a brief physical examination by somebody with the slightest knowledge of how firearms work will determine whether the gun is even trying to be a machinegun. It's not like this is rocket science.

Actually, from what I understand, the ATF did confiscate the gun and worked around the clock trying to find ammo to make it malfunction... I mean go "full auto". I wish I could remember where I read it, but I believe that they couldn't get it to malfunction, but the boss (who ever that was) made them keep testing it until they could get the result they desired, trying all different kinds of ammo, etc. Nice work batfe... very nice.

Here's another link:
http://www.cnn.com/video/?/video/bestoftv/2008/03/13/ldt.tucker.govt.guns.cnn

[ar15barrels]

Read the book Unintended Consequences. It's just going to get better with the ATF.:rolleyes:

My copy is signed by John Ross. :)

[tombinghamthegreat]

So if you have a semi rifle jams and accidently fire more than one round its a machine gun? That sounds radical but that explains why Ted Kennedy is so happy about the new ATF guy. If the Democrats take office i fear things like this will be a normal day.

[STAGE 2]

This has been discussed extensively over at TFL, and from everything I've read, this isn't a case of poor little gun owner getting screwed. Its a case of some guy who farked with his rifle (and has already been convicted of several other things including illegally carrying a concealed weapon) and then lent it to his buddy. Ignoring the validity of the law, he's guilty.

[Osprey]

WorldNetDaily is hardly what one would consider a reliable source.

Argumentum ad hominem.

But since you made such a strong case, I believe you.

[Blackwater OPS]

This has been discussed extensively over at TFL, and from everything I've read, this isn't a case of poor little gun owner getting screwed. Its a case of some guy who farked with his rifle (and has already been convicted of several other things including illegally carrying a concealed weapon) and then lent it to his buddy. Ignoring the validity of the law, he's guilty.

TFL likes to throw accused persons under the bus, including your truly. They don't have any info CNN doesn't.

[STAGE 2]

TFL likes to throw accused persons under the bus, including your truly. They don't have any info CNN doesn't.

Actually, TFL is pretty good about being even handed regarding legal issues. They don't believe suplanting a jury verdict, decided by people who were there and actually heard the evidence, based upon second or third hand information on da net.

This is especially the case when people arguing for his innocence make claims like the prosecutor sat on exculpatory evidence. Its also funny that most of the folks over there with a legal education are in agreement while those without are usually the loudest in his defense.

Call me crazy:rolleyes:

[Blackwater OPS]

Actually, TFL is pretty good about being even handed regarding legal issues. They don't believe suplanting a jury verdict, decided by people who were there and actually heard the evidence, based upon second or third hand information on da net.

This is especially the case when people arguing for his innocence make claims like the prosecutor sat on exculpatory evidence. Its also funny that most of the folks over there with a legal education are in agreement while those without are usually the loudest in his defense.

Call me crazy:rolleyes:

So the jury heard about the fact that Olympic arms issued a recall for that exact gun due to a defect that caused to it to go full auto? The jury heard that using standard ammo the gun would not go full auto, but had to be re-tested with soft primer ammo to make it happen? The jury heard that the only person that was ever seen with or seen using the gun when it was in a condition that allowed it to go full auto, was in fact not prosecuted but instead paid to testify for the government? No they didn't. What they did hear was an ATF agent testify that a firearm which malfunctions (read "functions in a way other than as intended by it's user") or slamfires and causes more than one round to be fired makes the owner the the gun a felon. Even if he is hundreds of miles away.

You are certainly proving the accuracy of your sig line.

[Blackwater OPS]

:gene:

[pnkssbtz]

Argumentum ad hominem.

But since you made such a strong case, I believe you.

You might want to look up the definition of ad hominem...


I am thinking you mean argumentum ad verecundiam?

[Osprey]

I recently discussed this with a doctoral candidate in philosophy. It was indeed an ad hominem.

^That's an appeal to authority FYI :p

If you'd like we can be more general and call it a genetic fallacy.

[aileron]

For everyone including myself, because I forget this stuff.


Argumentum ad Hominem (abusive and circumstantial): the fallacy of attacking the character or circumstances of an individual who is advancing a statement or an argument instead of trying to disprove the truth of the statement or the soundness of the argument. Often the argument is characterized simply as a personal attack.

1. The personal attack is also often termed an "ad personem argument": the statement or argument at issue is dropped from consideration or is ignored, and the locutor's character or circumstances are used to influence opinion.

2. The fallacy draws its appeal from the technique of "getting personal." The assumption is that what the locutor is saying is entirely or partially dictated by his character or special circumstances and so should be disregarded.


Argumentum ad Verecundiam: (authority) the fallacy of appealing to the testimony of an authority outside his special field. Anyone can give opinions or advice; the fallacy only occurs when the reason for assenting to the conclusion is based on following the improper authority.
A. Occasionally, this argument is called the "argument from prestige" and is based on the belief that prestigious people cannot be wrong. In these cases, the fallacy is best termed the "snob appeal" variety of the ad populum.
B. Sometimes it is difficult to distinguish between the ad verecundiam and the ad populum (q.v., ad populum) when the authority cited is a group with status.
Consider this example from an popular logic text: "Those who say that astrology is not reliable are mistaken. The wisest men of history have all been interested in astrology, and kings and queens of all ages have guided the affairs of nations by it."
C. The informal structure generally has the basic pattern:
Authority on subject x, L says accept statement p.
p is outside the scope of subject x.
p is true.


D. Many advertising campaigns are built on this fallacy. Popular sports figures, musicians, or actors endorse products and, in proper context, this fact is offered as a reason we should use those products.
E. Examples of the ad verecundiam fallacy:
1. The brilliant William Jenkins, the recent Nobel Prize winner in physics, states uncategorically that the flu virus will be controlled in essentially all of its forms by the year 2,050. The opinion of such a great man cannot be disregarded.
2. The United States policy toward mainland China was surely mistaken because Shirley McLaine, the well known actress, said, at the time, she had grave misgivings about it.

[Solidmch]

So the jury heard about the fact that Olympic arms issued a recall for that exact gun due to a defect that caused to it to go full auto? The jury heard that using standard ammo the gun would not go full auto, but had to be re-tested with soft primer ammo to make it happen? The jury heard that the only person that was ever seen with or seen using the gun when it was in a condition that allowed it to go full auto, was in fact not prosecuted but instead paid to testify for the government? No they didn't. What they did hear was an ATF agent testify that a firearm which malfunctions (read "functions in a way other than as intended by it's user") or slamfires and causes more than one round to be fired makes the owner the the gun a felon. Even if he is hundreds of miles away.

You are certainly proving the accuracy of your sig line.




nice;)

[mymonkeyman]

I recently discussed this with a doctoral candidate in philosophy. It was indeed an ad hominem.

^That's an appeal to authority FYI :p

If you'd like we can be more general and call it a genetic fallacy.

Outside of the field of pure logic, ad hominem can be a perfectly valid argument when not in the purely abusive form. This is especially true when discussing factual credibility. In fact, many rules of evidence used in courts of law are essentially ad hominem attacks (like it is considered relevant to impeach that a person was previously convicted of a felony or crime of fraud or deception). Nothing is irrational about being hesitant to believe in WorldNetDaily's factual assertions or characterizations based on previous failures of reporting.

Also it sounds like this case involved a very bad judge that essentially only allowed one side (the prosecution) to adequately explain the evidence using experts, and to hide exculpatory evidence. I hope the lawyers below preserved the defendant's objections because they will probably have quite a bit available on appeal.

[STAGE 2]

So the jury heard about the fact that Olympic arms issued a recall for that exact gun due to a defect that caused to it to go full auto?

I don't know. Did they? Of course Olofson himself messed with both the FCG and the safety so that would kind of moot the issue with Oly Arms. However this really isn't relevant. He was found guilty of transferring an MG. Even if it wasn't his fault that the gun was malfunctioning, if he transfered it, then he's broken the law. So far I've seen ZERO evidence that he wasn't aware of the guns ability to go full auto.


The jury heard that using standard ammo the gun would not go full auto, but had to be re-tested with soft primer ammo to make it happen?

Irrelevant. If a gun has been tweaked to go full auto with a only certain type of ammo, its still an mg under the law.


The jury heard that the only person that was ever seen with or seen using the gun when it was in a condition that allowed it to go full auto, was in fact not prosecuted but instead paid to testify for the government?

I don't see how thats relevant either. If the defense attorney wanted to go into this then he certianly could have. The point is that Olofson lent his buddy a rifle capable of going full auto. To my knowledge, there wasn't any evidence that showed that Olofson wasn't aware that the rifle could do this.


What they did hear was an ATF agent testify that a firearm which malfunctions (read "functions in a way other than as intended by it's user") or slamfires and causes more than one round to be fired makes the owner the the gun a felon. Even if he is hundreds of miles away.

Sorry, thats a huge misstatement of what was said. If you want to talk about this case thats fine, but do it in an impartial manner. I don't understand why so many people are trying to wrap this case up in the flag. If you go to the WI court system and do a search on him he has had 19 cases against him since 1994. Concealed weapons conviction, tax warrants, driving on suspended/revoked DL, several non-payment small claims and civil infractions.

This guy isn't the squeaky clean person many have made him out to be. He has already demonstrated his ability to ignore gun laws. While this certianly isn't definitive evidence of guilt, lets not pretend that the ATF drew a name out of a hat looking for someone to pick on and came up with this guy.

[aileron]

Probably because of the obvious fact that 900 rounds per minute malfunction is not an intended desire and is exceedingly dangerous for the user.

[1911whore]

so if you have a cookoff or a slamfire in your M1 you better be ready to go the the pokey. Thats bull!@

[eaglemike]

I don't know. Did they? Of course Olofson himself messed with both the FCG and the safety so that would kind of moot the issue with Oly Arms. However this really isn't relevant. He was found guilty of transferring an MG. Even if it wasn't his fault that the gun was malfunctioning, if he transfered it, then he's broken the law. So far I've seen ZERO evidence that he wasn't aware of the guns ability to go full auto.




Irrelevant. If a gun has been tweaked to go full auto with a only certain type of ammo, its still an mg under the law.




I don't see how thats relevant either. If the defense attorney wanted to go into this then he certianly could have. The point is that Olofson lent his buddy a rifle capable of going full auto. To my knowledge, there wasn't any evidence that showed that Olofson wasn't aware that the rifle could do this.




Sorry, thats a huge misstatement of what was said. If you want to talk about this case thats fine, but do it in an impartial manner. I don't understand why so many people are trying to wrap this case up in the flag. If you go to the WI court system and do a search on him he has had 19 cases against him since 1994. Concealed weapons conviction, tax warrants, driving on suspended/revoked DL, several non-payment small claims and civil infractions.

This guy isn't the squeaky clean person many have made him out to be. He has already demonstrated his ability to ignore gun laws. While this certianly isn't definitive evidence of guilt, lets not pretend that the ATF drew a name out of a hat looking for someone to pick on and came up with this guy.
The jury is supposed to hear all legally obtained evidence - isn't that the way the system works? Since you seem to have decided this person is less worthy, that makes it all right for evidence to be suppressed, is that correct?

Are you not aware of the rules of evidence???? "To my knowledge, there wasn't any evidence that showed that Olofson wasn't aware that the rifle could do this." The evidence is supposed to prove he is/was aware of it - not the other way around.

I don't agree with your position on this, and I pray that you will never sit on a jury in judgment of me.

I almost never get personal on forums, but in this particular case the position you take scares me.

all the best,

Mike

Edit: BTW, I've been at several IPSC where a 1911 or clone doubled or tripled, and a couple of rimfire matches where a S&W41 went auto. All of the 1911's had been worked on, the 41 was factory stock. Based on your statements above, all these people should be found guilty of machine gun ownership, right? Or the manufacturing of a machine gun? Just ignore the fact that it's a malfunction, and didn't work as intended or designed.

[STAGE 2]

so if you have a cookoff or a slamfire in your M1 you better be ready to go the the pokey. Thats bull!@

SKS's slamfire all the time due to gunk in the firing pin housing. There isn't anything illegal about this.

However if you go monkeying around with your rifle and it goes FA, or if you transfer a rifle that goes FA (that isn't due to gunk) then you've broken the law.

[STAGE 2]

The jury is supposed to hear all legally obtained evidence - isn't that the way the system works? Since you seem to have decided this person is less worthy, that makes it all right for evidence to be suppressed, is that correct?

No, thats not even remotely how the system works.



Are you not aware of the rules of evidence???? "To my knowledge, there wasn't any evidence that showed that Olofson wasn't aware that the rifle could do this." The evidence is supposed to prove he is/was aware of it - not the other way around.

Vividly. Which makes me wonder if you are. Ignoring things like hearsay and legal relevance for a moment, the court will admit all logically relevant evidence. Logically relevant evidence is something that tends to prove or disprove a material fact in issue. Thats why BOTH the prosecution and defense present evidence. After reading some of the transcripts, I haven't seen anything where the defendant stated he wasn't aware that the rifle goes FA. Its really that simple.


I don't agree with your position on this, and I pray that you will never sit on a jury in judgment of me.

I almost never get personal on forums, but in this particular case the position you take scares me.

Thats becasue your knowledge of evidence and the judicial system in general seems to be painfully deficient.



Edit: BTW, I've been at several IPSC where a 1911 or clone doubled or tripled, and a couple of rimfire matches where a S&W41 went auto. All of the 1911's had been worked on, the 41 was factory stock. Based on your statements above, all these people should be found guilty of machine gun ownership, right? Or the manufacturing of a machine gun? Just ignore the fact that it's a malfunction, and didn't work as intended or designed.

Nope, thats not even remotely what I've said. Furthermore, how in the world do you know what his intent was. He messed with his rifle and has already shown his disdain of gun laws.

Bottom line this guy was convicted of transfering a MG. If you had in your possession a 1911 that you knew goes FA, whether you did it or some smith did it, and you gave it to your buddy, then you've broken the law. You can sit here and quibble about what the definition of an MG is, but both you and I know, whether its intended or not, if your rifle dumps a whole mag with a single squeeze, and its not due to dirt, you know something's wrong.

As far as making modifications, yes there is some potential liability when you start messing with the firearm. If something happens by accident, thats one thing. If you have a gun that goes FA and you just sit on it for a while that may be a problem. If you're dumb enough to sit on it and then lend it to a buddy, then don't cry when the ATF comes knocking.

Like I said, this is not a cause célèbre for gun owners. Its some guy who has ignored gun laws in the past and did SEVERAL stupid things and got caught.

[oaklander]

:lurk5:

[Bishop]

Adding parts or functionality to a firearm that makes it fire more than one round on each pull of the trigger is one thing. Slamfires are completely different. Slamfires carry the dangerous possibility of an out of chamber ignition, which will likely destroy the firearm and injure the user. Anyone who modifies their firearm with the intention of causing slamfires will realize this quickly.

Every gun has the possibility of malfunction. If a prosecutor cannot prove beyond the shadow of a doubt that the firearm was intentionally modified to malfunction in such a way, INNOCENCE is presumed. Thinking otherwise is very dangerous.

[eaglemike]

No, thats not even remotely how the system works.


Vividly. Which makes me wonder if you are. Ignoring things like hearsay and legal relevance for a moment, the court will admit all logically relevant evidence. Logically relevant evidence is something that tends to prove or disprove a material fact in issue. Thats why BOTH the prosecution and defense present evidence. After reading some of the transcripts, I haven't seen anything where the defendant stated he wasn't aware that the rifle goes FA. Its really that simple.


Thats becasue your knowledge of evidence and the judicial system in general seems to be painfully deficient.


Nope, thats not even remotely what I've said. Furthermore, how in the world do you know what his intent was. He messed with his rifle and has already shown his disdain of gun laws.

Bottom line this guy was convicted of transfering a MG. If you had in your possession a 1911 that you knew goes FA, whether you did it or some smith did it, and you gave it to your buddy, then you've broken the law. You can sit here and quibble about what the definition of an MG is, but both you and I know, whether its intended or not, if your rifle dumps a whole mag with a single squeeze, and its not due to dirt, you know something's wrong.

As far as making modifications, yes there is some potential liability when you start messing with the firearm. If something happens by accident, thats one thing. If you have a gun that goes FA and you just sit on it for a while that may be a problem. If you're dumb enough to sit on it and then lend it to a buddy, then don't cry when the ATF comes knocking.

Like I said, this is not a cause célèbre for gun owners. Its some guy who has ignored gun laws in the past and did SEVERAL stupid things and got caught.
Stage,

You are the one that seems capable of determining intent. The rule is supposed to be "guilty beyond a reasonable doubt."

Quality of representation will make a difference. I know for a fact the some attorneys are not capable of doing a good job, including some involved in gun cases here in Ca. I don't know if he had competent representation.

Actually I was a AJ major for a while, and I'm not the moron you seem to think I am.

You continue to refer to past things to support your determination of judgment of this particular instance. The system is supposed to judge the present alleged offense, is this correct?

You have not proven the guy knew it would go full auto. Since it has been documented the malfunction only occurred with certain ammunition, how do you "know beyond a reasonable doubt" that he knew?

I'm not in pain, and I'm not deficient.

And I use my real name

Mike

[STAGE 2]

Stage,

You are the one that seems capable of determining intent.

Me, and the jury of 12 that convicted this guy.


The rule is supposed to be "guilty beyond a reasonable doubt."

And, once again, those 12 people apparently hurdled this very high burden and found this bloke guilty.


Quality of representation will make a difference. I know for a fact the some attorneys are not capable of doing a good job, including some involved in gun cases here in Ca. I don't know if he had competent representation.

Ok, so lets see your evidence that the defense attorney was incompetent.


Actually I was a AJ major for a while, and I'm not the moron you seem to think I am.

Never said you were a moron. Just that your contentions regarding evidence are bassackwards.


You continue to refer to past things to support your determination of judgment of this particular instance. The system is supposed to judge the present alleged offense, is this correct?

No, I simply brought up his past convictions to quell the notion that this was a poor honorable citizen that is getting beaten up on by the ATF. There is more than enough evidence in the case at hand to support this guys conviction.


You have not proven the guy knew it would go full auto. Since it has been documented the malfunction only occurred with certain ammunition, how do you "know beyond a reasonable doubt" that he knew?

I don't need to prove anything. Its pretty obvious that the prosecutor did however. If the prosecutor didn't offer any evidence to prove this then at the close of the states case, its over.


And I use my real name

Mike

Thats fine. I don't put personal info on the net.

[aileron]

I'm having a hard time finding the case documents. I thought I would look for them, and link them here. So everyone can read for themselves. So far this is all I got. The rest of the stuff, is scanned jpegs, you can follow them to their homes below.

http://www.websupp.com/data/EDWI/2:06-cr-00320-22-EDWI.pdf

http://www.websupp.com/data/EDWI/2:06-cr-00320-57-EDWI.pdf

http://www.websupp.com/data/EDWI/2:06-cr-00320-61-EDWI.pdf

You can see some stuff here at JPFO.

http://www.jpfo.org/filegen-n-z/olofson-vs-us.htm

And here.

http://smg.photobucket.com/albums/v51/cloverleaf762/?start=0

Audio interview here.

http://www.jpfo.org/media-sound/len-savage-01-10-08.mp3

Some disturbing things from this article.

http://www.americanchronicle.com/articles/53129


In another recent case, ATF removed a gun from the machine gun registration rolls because the gun was manufactured as an AR15 and had been intentionally modified to fire in full-auto mode using the hammer-follow method. ATF ruled that such a gun was not a machinegun, but a semi-auto in need of repair. By removing the gun from the NFA rolls ATF devalued the gun from a market value of around $20,000.00 to about $1,500.

Olofson´s judge and jury were not allowed to learn about either the ATF ordered recall or the reclassification of a rifle like Olofson´s as not being a machinegun, because ATF and the US Attorney claimed that such information was prohibited from disclosure by tax privacy laws. This contention now appears to be patently false and the judge has egg on his face for not making the government prove their privacy claim.


And.


In the Olofson case, the government entered into evidence a tightly edited video clip of one of their testers firing Olofson´s gun for a relatively long full-auto string. The cyclic rate was estimated to be near 1700 rounds per minute, more than twice that of a properly regulated M16. The shooter clearly understood the danger involved as he was holding the firearm well away from his face and body in obvious fear that the rifle would break apart at any moment.

At the government´s insistence, the court refused to allow Olofson´s firearms expert to physically examine the gun

EDIT: It appears that Olofson was doing something to his gun, but it was malfunctioning all the same. It appears that Olofson might of been attempting to get a malfunction on purpose to go auto (THIS IS NOT FACT, but appears that way). There in lies the rub. BUT, both sides seem to be playing games. Also Olofson originally defended himself, and then got a public defender, and if Im not mistaken a few more. He seems to be playing with fire here.

[eaglemike]

Thank you, aileron! :D

all the best,

Mike

[STAGE 2]

He seems to be playing with fire here.

Bingo. Thats the point. And remember, he was convicted of TRANSFERRING.

Olofson isn't the poster boy for gun rights.

[aileron]

Bingo. Thats the point. And remember, he was convicted of TRANSFERRING.

Olofson isn't the poster boy for gun rights.

Fine... but that doesn't mean he is really guilty. It appears.

1. He had a 3 round selector in his gun that allows him to go to the third position normally for triple burst. But when in that position he did not possess the parts (Auto/Triple Sear) to make it go full auto. The selector is legal. SO he is not manufacturing, or in possession of a FA gun on this count.

2. The ATF purposely used soft primer .223 ammo, not Military Hard primer 5.56 ammo to do the test. What the gun was designed to use.

3. ATF only showed the one instance of the AR hammer following tell it exhausted the ammo using .223 soft primer ammo.

4. ATF withheld evidence.

5. No one was allowed to examine the gun, but the ATF.

Neither sides story adds up very well. You feel he is guilty. Fine.

The ATF managed to find a way to make it fire more than one round and it did not exhibit that behavior every time. But thats good enough to make the owner guilty. Interesting because it still is a malfunction as an engineering exercise. I guess the law can make anything anything else as long as your the winner. Forget the engineering, design intent of the weapon, practiced understanding of the profession, and basic reasoning of the general population that knows what a slam fire is. Its so because the law says so.

That sounds pretty dangerous to me if that is what our laws are to be. Regardless of your opinion of this guy.

[STAGE 2]

1. He had a 3 round selector in his gun that allows him to go to the third position normally for triple burst. But when in that position he did not possess the parts (Auto/Triple Sear) to make it go full auto. The selector is legal. SO he is not manufacturing, or in possession of a FA gun on this count.

True, but it does go to intent, especially since the end result was a gun that went FA

2. The ATF purposely used soft primer .223 ammo, not Military Hard primer 5.56 ammo to do the test. What the gun was designed to use.

Irrelevant. It you mess around with a gun and it goes FA with a specific type of ammo, it doesn't matter that it doesn't do it with other types of ammo.


3. ATF only showed the one instance of the AR hammer following tell it exhausted the ammo using .223 soft primer ammo.

Thats all they needed.


4. ATF withheld evidence.

Well, if it was exclupatory evidence, then the prosecutor has comitted a serious violation and this thing will get flipped on appeal. If it wasn't then the defense attorney should have gotten off his duff and motioned the court to allow it. However, even if the court didn't allow the jury to hear about the reclassification, its still completely within the power of the defense attorney to go into the current law about what constitutes a machine gun and what doesn't.


5. No one was allowed to examine the gun, but the ATF.

Then I wonder what the defense attorney was thinking.



That sounds pretty dangerous to me if that is what our laws are to be. Regardless of your opinion of this guy.

How many people have had weapons that have slamfired? How many people do we see being hauled into court by the ATF because of these slam fires?

If things were as you suggest, we'd see many cases like this. There aren't because, contrary to popular belief, the ATF doesn't spend all day trying to figure out how to put the screws to legitimate gun owners. Sure there have been abberations of justice, but they are the minute exception and not the rule.

This case is going up on appeal and if there are these massive problem that you suggest, then they should come to light. That said, most of what I've heard about this case is net noise from commentators. Reasonable doubt isn't a small standard. The folks that were there seemed to have cleared it. That carries much more weight with me than posturing and conjecture on the net.

[mymonkeyman]

True, but it does go to intent, especially since the end result was a gun that went FA

How does it go to intent? Does it really make it more likely that he knew the gun would fire out of battery when the switch has no bearing on whether the gun would fire out of battery? Even if it is relevant, it seems it wouldn't pass FRE 403 if the judge actually understood the facts.



Irrelevant. It you mess around with a gun and it goes FA with a specific type of ammo, it doesn't matter that it doesn't do it with other types of ammo.




Thats all they needed.

Says who? That's one way to interpret the statute, it's certainly not the only way and not one compatible with the rule of lenity. It's definitely not compatible with FRE 703 and the Daubert rule which requires "the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."




Well, if it was exclupatory evidence, then the prosecutor has comitted a serious violation and this thing will get flipped on appeal. If it wasn't then the defense attorney should have gotten off his duff and motioned the court to allow it. However, even if the court didn't allow the jury to hear about the reclassification, its still completely within the power of the defense attorney to go into the current law about what constitutes a machine gun and what doesn't.

I believe the prosecutor argued that he did not have to introduce the evidence because they were protected by tax privacy laws and the judge bought it, as if tax privacy law's trump constitutional rulings like Brady.

Also not all Brady violations result in automatic reversals, the appellate court gets to theorize about whether "reasonable probability that his conviction or sentence would have been different had the suppressed documents been disclosed to the defense." Of course this post-hoc reasoning almost always goes against the Defendant, so even if your rights were violated by the lower court, you get the conviction affirmed because the appellate court makes up some rationalization about what the jury probably thought about the evidence and that it probably thought that other evidence was more important or whatever.




Then I wonder what the defense attorney was thinking.

I believe that was the judge's ruling, not a lack of defense attorney's diligence.




How many people have had weapons that have slamfired? How many people do we see being hauled into court by the ATF because of these slam fires?

If things were as you suggest, we'd see many cases like this. There aren't because, contrary to popular belief, the ATF doesn't spend all day trying to figure out how to put the screws to legitimate gun owners. Sure there have been abberations of justice, but they are the minute exception and not the rule.


Lots of laws are enforced randomly. If you are comfortable with a drunk ATF agent throwing a dart at a dartboard to determine who to charge just because the point of the dart is really small and the dart board is really big, that's up to you. I prefer the law to actually be enforced fairly.

This case is going up on appeal and if there are these massive problem that you suggest, then they should come to light. That said, most of what I've heard about this case is net noise from commentators. Reasonable doubt isn't a small standard. The folks that were there seemed to have cleared it. That carries much more weight with me than posturing and conjecture on the net.

I'm sorry, but if you know much about jury trials you would realize that reasonable doubt isn't that useful. Most juries start by having a strong belief that the prosecution is right irrespective of the burden of proof. There are some exceptions, like inner-city areas with a strong distrust of the police, but those are the exceptions not the rule.

[Shotgun Man]

[...]

I'm sorry, but if you know much about jury trials you would realize that reasonable doubt isn't that useful. Most juries start by having a strong belief that the prosecution is right irrespective of the burden of proof. There are some exceptions, like inner-city areas with a strong distrust of the police, but those are the exceptions not the rule.

Your entire post was well said. Monkeyman, you're going to make a fine lawyer.

[bohoki]

hmm is there any way we could get a ruling from the atf on what made the gun fire full auto and find out if we could register that part as a post 86 dealer sample

[383green]

True, but it does go to intent, especially since the end result was a gun that went FA

Ok, I call BS here. I've seen a statement here that the defendant had an M16 selector lever in the gun, but I have not seen any statement here that suggested that he had any other M16-specific fire control group parts in the gun. Simply installing an M16 selector in place of an AR15 selector will not make an AR15 go FA. If he had also installed any other M16 FCG parts such as the FA disconnector, or particularly if he had drilled the extra receiver hole necessary for the auto sear, then this might strongly demonstrate intent. However, simply installing a selector lever which happens to rotate 90 degrees farther without otherwise affecting the FCG operation does not demonstrate intent.



Irrelevant. It you mess around with a gun and it goes FA with a specific type of ammo, it doesn't matter that it doesn't do it with other types of ammo.

Whether this is irrelevant or not depends on exactly how he "messed around with the gun". If he had deliberately "messed around" with the gun in a way that makes it more likely to slam-fire with soft primers, then your statement might be valid. However, if he did not "mess around" with the gun in any way that affects hammer follow, firing pin mass, or anything else that affects the likelyhood of slam-fire with soft primers, then it's your statement above which is irrelevant.

Look, if a gun goes FA all of a sudden when soft-primer rounds are loaded (particularly a gun like the AR15 which has a floating firing pin), then the most likely reason is that the firing pin is dirty, and thus is able to get stuck in the protruding position and subsequently strike the soft primer with enough force upon chambering to ignite the primer. This is a dangerous malfunction, not manufacturing of a machine gun, unless the defendant deliberately made changes to the gun which specifically caused this dangerous situation (and in this case the defendant would also be a compete fool, as this would greatly increase the chance of out-of-battery fire).

Another possibility is hammer follow, which is also more likely to be a dangerous malfunction unless the defendant deliberately modified the gun with the intention of causing hammer follow.

I have seen multiple posts where you stated that the defendant "messed around" with the gun, but I do not recall any specific details about how he "messed around" with it. "Mess around" could mean anything. If you know about any specific modifications that he is alleged to have made which may affect the way the firing pin strikes the primer when a round is chambered, and/or which cause the hammer to release upon chambering without another trigger pull, then I will happily consider whether that suggests that this person might have manufactured or transferred a FA weapon, as opposed to transferring a malfunctioning weapon. Without further defining "messed around", both my understanding of how the AR15 fire control group works and the rule of lenity tell me that I cannot assume that this guy did anything wrong simply because of "messed around" + "soft primer sensitivity".

Another poster here stated that the gun manufacturer had issued a recall of this specific model of gun due to high incidence of slam-fire. In a rifle originally designed to fire hard-primered military ammunition with a floating firing pin, it is easy to see how a particular manufacturer could inadvertently manufacture rifles with firing pins that are a little bit too heavy to safely avoid slam-fire with soft-primered ammunition, particularly once enough crud builds up inside the firing pin's channel to impede free firing pin movement. This has happened before, and this situation isn't even unique to the AR15/M16 platform. This detail could be very easily overlooked by a jury if none of the members had specific and detailed knowledge of how guns work, if none of them were familiar with details like firing pin inertia and the way different primers are designed and tested for sensitivity, if the prosecutor did not choose to disclose such details that would weaken their case, if the defense was not competent enough to bring up such details, if the defense was not allowed to have the rifle in question examined independently, etc.



How many people have had weapons that have slamfired? How many people do we see being hauled into court by the ATF because of these slam fires?

I don't have a link handy, but I recall seeing at least one other case where the ATF alleged manufacturing of a FA weapon, and expert witnesses brought in by the defense team demonstrated that the gun was in fact malfunctioning dangerously, not deliberately modified. I saw a video in which the ATF agent demonstrated the so-called FA operation in a contrived demonstration using a particular kind of ammo, but did not disassemble the gun in order to inspect it in any way. The expert witness then (in the same filming session, right in front of the ATF agent) disassembled the gun, inspected it, and showed exactly how the gun was dangerously malfunctioning due to excessive wear and dirt accumulation, but was not modified in any deliberate fashion. As an engineer with an understanding of how guns work, it was quite clear to me that the expert witness appeared to have reached he correct conclusion, while the ATF agent was just putting on a show but either didn't understand anything about the difference between a real FA weapon and a malfunctioning SA weapon, or simply wanted to demonstrate the defendant's guilt regardless of actual truth.

I'm pretty sure that this video was from a different case than the one we're discussing here. Somebody please correct me if I'm wrong.

Thus, absent any specific evidence to the contrary, it is very easy for me to assume that the ATF could convince a jury of 12 non-firearm-literate people that a person had made a FA weapon, when the weapon was actually just a malfunctioning but legal rifle.

If you have any specific details about how this defendant allegedly made a FA rifle, then please bring it up and we'll talk about it rationally. Just stating things like he "messed around" with it doesn't pass muster. Furthermore, statements like "it doesn't matter that it doesn't do it with other types of ammo" make me question whether you personally understand the details of semiautomatic firearm operation well enough to make a qualified judgement of this person's innocence or guilt. I do not intend any offense when I write this; all that I know about you is the impressions I have received by reading your postings in this one thread.

[STAGE 2]

How does it go to intent? Does it really make it more likely that he knew the gun would fire out of battery when the switch has no bearing on whether the gun would fire out of battery? Even if it is relevant, it seems it wouldn't pass FRE 403 if the judge actually understood the facts.

There is no way that in a case involving manufacturing and transferring a MG that a court would rule the fact that the prejudice of a defendant installing a selector switch outweighed its probative value. In fact, there is no way that they would rule this in any case.


Says who? That's one way to interpret the statute, it's certainly not the only way and not one compatible with the rule of lenity. It's definitely not compatible with FRE 703 and the Daubert rule which requires "the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

Daubert has nothing to do with the application of the statute. If I have an AR 15, and I tweak it to go FA with only soft primered ammo, then I've manufactured a machine gun according to the language of the statute.


I believe the prosecutor argued that he did not have to introduce the evidence because they were protected by tax privacy laws and the judge bought it, as if tax privacy law's trump constitutional rulings like Brady.

And this will be addressed on appeal.

Also not all Brady violations result in automatic reversals, the appellate court gets to theorize about whether "reasonable probability that his conviction or sentence would have been different had the suppressed documents been disclosed to the defense."

In other words, even if this had been different he would have still been found guilty.


Of course this post-hoc reasoning almost always goes against the Defendant, so even if your rights were violated by the lower court, you get the conviction affirmed because the appellate court makes up some rationalization about what the jury probably thought about the evidence and that it probably thought that other evidence was more important or whatever.

This is the kind of biased crap I'm talking about. The ATF was just picking on this guy, the prosecutor sat on exculpatory evidence, the appellate court is going to can him even though his argument is correct. Like I said, net noise.

If this was the abberation of justice that you folks are suggesting it is then the court won't dance around it.


I believe that was the judge's ruling, not a lack of defense attorney's diligence.

To be fair, I think it had something to do with the fact that this guy decided to represent himself for part of this case. That said, its pretty much a death sentence to try a gun case without being able to examine the firearm in question.

More importantly however, and what makes me wonder about the actions of the defense attorney, is the defendants testifying expert.



Lots of laws are enforced randomly. If you are comfortable with a drunk ATF agent throwing a dart at a dartboard to determine who to charge just because the point of the dart is really small and the dart board is really big, that's up to you. I prefer the law to actually be enforced fairly.

What isn't fair about this. There is no argument that the gun went FA. There is no argument that he gave it to his friend.


I'm sorry, but if you know much about jury trials you would realize that reasonable doubt isn't that useful. Most juries start by having a strong belief that the prosecution is right irrespective of the burden of proof. There are some exceptions, like inner-city areas with a strong distrust of the police, but those are the exceptions not the rule.

LOL. Give me a break. Reasonable doubt is one of the most useful tools in a defense attorney's bag. Talk to a jury thats just acquitted post trial and one of the things you will hear consistently is the statement that, "I had a feeling that he was guilty and wanted to vote that way, but I couldn't say that he was guilty beyond a reasonable doubt".

Thats why in every closing the defense attorney drives home the standard and explicitly tells the jury that if they have a reasonable doubt, no matter how small, then they cannot convict.

[Pred@tor]

http://www.americanminuteman.net/forums/showthread.php?t=4938

More info on this case here too... Apparently hes talked about this on five forums.

[mymonkeyman]

There is no way that in a case involving manufacturing and transferring a MG that a court would rule the fact that the prejudice of a defendant installing a selector switch outweighed its probative value. In fact, there is no way that they would rule this in any case.

Give me your chain of inferences that leads to creating probative value. I agree there is no way a court would rule that way because they know nothing about how guns work and they probably didn't lay a foundation to explain the relevance of a MG selector or what it was. An MG selector is a cosmetic feature. The prosecution's theory was that it was a MG because it fired out of battery. How does a cosmetic feature make a firearm firing out of battery more or less likely?




Daubert has nothing to do with the application of the statute. If I have an AR 15, and I tweak it to go FA with only soft primered ammo, then I've manufactured a machine gun according to the language of the statute.


I know that Daubert has nothing to do with the scope of the statute. I addressed two issues relating to the testimony: 1) does the testimony violate FRE 703 / Daubert? A fishing expedition for a brand of ammo that at one time fired automatically does not meet the rigorous standards of expert testimony under Daubert to show that, at the time the weapon was transfered, it was a machine gun. You didn't answer.

2) What is the basis for your assertion that because a firearm can be made to fire out of battery more than one round with only one actuation of the trigger is sufficient as a matter of law to make it a machine gun aka a "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."?

Again, you did not answer, you only repeated your assertion. The NFA does not define "shoot" and it is entirely unclear that an out-of-battery discharge falls within the NFA's definition of "shoot." It especially does not seem to fall within the phrase "automatically." One definition of automatic is "having a self-regulating mechanism," which certainly does not relate to the essentially random, haphazard, and un-regulated nature of an out-of-battery firing.



And this will be addressed on appeal.


No duh. That doesn't mean the trial was right or fair.


In other words, even if this had been different he would have still been found guilty.

Wow you should be a judge. :rolleyes:




This is the kind of biased crap I'm talking about. The ATF was just picking on this guy, the prosecutor sat on exculpatory evidence, the appellate court is going to can him even though his argument is correct. Like I said, net noise.

If this was the abberation of justice that you folks are suggesting it is then the court won't dance around it.


Again, you are have not addressed my substantive point. You have not addressed the extent to which the standards of appellate review in criminal cases are designed in a variety of ways to uphold criminal convictions irrespective of substantive rights. I didn't say it was necessarily an "abberation", just a fact.




To be fair, I think it had something to do with the fact that this guy decided to represent himself for part of this case. That said, its pretty much a death sentence to try a gun case without being able to examine the firearm in question.

More importantly however, and what makes me wonder about the actions of the defense attorney, is the defendants testifying expert.


Of course, it couldn't possibly be the case that the judge ruled incorrectly?




What isn't fair about this. There is no argument that the gun went FA. There is no argument that he gave it to his friend.

The only reason that SCOTUS has approved of strict liability crimes irrespective of the due process clause (which was an NFA case) was because the nature of the crime was so easily apparent that the person had notice of it (I believe the case involved a grenade). In that case, the US Government prosecuting the case at the time took the position that way the NFA should be interpreted, whether a firearm or device fell within the NFA was supposed to be obvious from just looking at it. Of course, this was not the case then (DD shotgun sporting purposes clause, MG clause, etc.). But the position taken in this case is grossly far from any position which would allow a person to have notice that they would be violating the statute. That's a gross due process violation.



LOL. Give me a break. Reasonable doubt is one of the most useful tools in a defense attorney's bag. Talk to a jury thats just acquitted post trial and one of the things you will hear consistently is the statement that, "I had a feeling that he was guilty and wanted to vote that way, but I couldn't say that he was guilty beyond a reasonable doubt".

Thats why in every closing the defense attorney drives home the standard and explicitly tells the jury that if they have a reasonable doubt, no matter how small, then they cannot convict.

I'm not saying defense attorneys do not mention reasonable doubt, but of all the closings I've seen, I've never seen a defense attorney rely on it that much. Success for a defense attorney typically relies on A) confusing the jury or B) making it look like the prosecution / police are "bad guys." Reasonable doubt is an entirely ambiguous and subjective standard, it's just not that useful to give a verbal incantation of a subjective standard.

There's plenty of legal psychological literature out there that shows the variety of legal evidentiary standards preponderance of the evidence, clear and convincing evidence, and beyond a reasonable doubt aren't that far apart. It's also not how juries actually evaluate cases (weighing the evidence on each element of the crime to determine if it meets some verbal incantation of an evidentiary standard). Juries typically decide via the narrative method which results on jury decision making based on which party has the most compelling and cohesive story. Typically the decision of which story to accept happens very early in the case (usually during opening), after which evidence which creates a cognitive dissonance between the accepted narrative typically gets rejected as non-credible irrespective of typical means for measuring credibility.

[STAGE 2]

Give me your chain of inferences that leads to creating probative value. I agree there is no way a court would rule that way because they know nothing about how guns work and they probably didn't lay a foundation to explain the relevance of a MG selector or what it was. An MG selector is a cosmetic feature. The prosecution's theory was that it was a MG because it fired out of battery. How does a cosmetic feature make a firearm firing out of battery more or less likely?

Its quite simple. First, there is nothing prejudicial about offering this evidence to the jury. As you pointed out, in of itself, installing a switch is not illegal. There isn't any reason why the defense couldn't illicit this on cross from the ATF agent on the stand. Secondly, it is probative because even though it is a cosmetic feature, it can be used to show that 1) Olofson tinkered with the gun and 2) he had a desire to have an MG by installing "cosmetically accurate" parts.


I addressed two issues relating to the testimony: 1) does the testimony violate FRE 703 / Daubert? A fishing expedition for a brand of ammo that at one time fired automatically does not meet the rigorous standards of expert testimony under Daubert to show that, at the time the weapon was transfered, it was a machine gun. You didn't answer.

What specific testimony are you referring to? If I remember correctly, the gun went FA when in the possession of his buddy so thats kind of a moot point. The issue is whether in its current configuration does it constitute a machine gun. I'm assuming that the prosecutions expert was an ATF agent. As such, he should easily qualify as an expert. He has the necessary years of experience, as well as the technical training. As far as the rest of the relevant factors, (i.e. methodology) there really isn't much of a methodology for testing a firearm. Law enforcement procedures are pretty much the "standard" for this anyways, so that works in theri favor as well. If anything, the fact that they tested the weapon with several types of ammo strengthens the viability of this testimony.

The defense attorney is certianly able to go into the fact that the firearm did not go FA with standard ammo on cross, and put up his own expert to testify to this. Which begs the question of whether or not you've looked at the expert for the defense. If we are going to talk about daubert and qualifications, then this guy is ripe for scrutiny.


2) What is the basis for your assertion that because a firearm can be made to fire out of battery more than one round with only one actuation of the trigger is sufficient as a matter of law to make it a machine gun aka a "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."?

Bolded the important part for you. These three are not inclusive. Any one is sufficient.


Again, you did not answer, you only repeated your assertion. The NFA does not define "shoot"

Exactly, which is why if you don't want to find yourself in court, you don't fark around with stuff like this.


and it is entirely unclear that an out-of-battery discharge falls within the NFA's definition of "shoot." It especially does not seem to fall within the phrase "automatically." One definition of automatic is "having a self-regulating mechanism," which certainly does not relate to the essentially random, haphazard, and un-regulated nature of an out-of-battery firing.

Now you are just reaching. Even if it is unclear how automatically is defined, offering a random definition isn't conclusive. Seeing as how courts do take into account dictionary definitions when trying to construe a word in absence of a statutory definition, it should interest you that merriam webster has a specific definition for the word automatic in the context of firearms. Specifically, the definition of automatic is "firing repeatedly until the trigger is released". Thus it shouldn't surprise you that the court would use this definition, battery or otherwise.


No duh. That doesn't mean the trial was right or fair.

And again, it doesn't mean it wasn't.


Wow you should be a judge.

I must admit it would be nice to be on the other side for a change.


Again, you are have not addressed my substantive point. You have not addressed the extent to which the standards of appellate review in criminal cases are designed in a variety of ways to uphold criminal convictions irrespective of substantive rights.

Thats because, to put it succinctly, I think your point is bunk. Complaining about "the man" is never a viable argument. In any justice system, there are going to have to be certian compromises that are made in the interests of efficiency (and by efficiency I mean just being able to run). These aren't indicative of some conspiratorial nature to send innocent people to jail. In fact, looking over only the last 30 year I think its fair to say that the system has bent over backwards in respecting rights.


Of course, it couldn't possibly be the case that the judge ruled incorrectly?

Its always a possibility, but looking at the facts here I don't think thats the case.


But the position taken in this case is grossly far from any position which would allow a person to have notice that they would be violating the statute.

So let me get this straight. A person with a firearm that went FA would be under no notice whatsoever that lending this gun to a friend would be a problem. Let me know when you step back into reality.


I'm not saying defense attorneys do not mention reasonable doubt, but of all the closings I've seen, I've never seen a defense attorney rely on it that much. Success for a defense attorney typically relies on A) confusing the jury or B) making it look like the prosecution / police are "bad guys." Reasonable doubt is an entirely ambiguous and subjective standard, it's just not that useful to give a verbal incantation of a subjective standard.

Then I submit you haven't seen many closings. While reasonable doubt may not be technically defined its easily a stable enough concept for a jury to grasp. Its nowhere even close to being "ambiguous or subjective". Case in point, look at your first example. The entire purpose of confusing the jury is to prevent them from hurdling this standard.

I'm not suggesting that the entire closing will be devoted to this, but you will not find a single closing that does not address both this standard and the fact that the burden of proof is on the state, usually while going through the charge.

Its not some passing technicality. It is a legitimate and meaty factor and has been THE reason for many acquittals.

[mymonkeyman]

Its quite simple. First, there is nothing prejudicial about offering this evidence to the jury. As you pointed out, in of itself, installing a switch is not illegal. ... Secondly, it is probative because even though it is a cosmetic feature, it can be used to show that 1) Olofson tinkered with the gun and 2) he had a desire to have an MG by installing "cosmetically accurate" parts.

403 isn't just prejudicial, it includes things such as confusing the jury. Secondly, it's not probative of intent because of the theory of the prosecution is that the firearm is a machine gun by virtue of it firing out of battery, not by virtue of any intentional modification by Olofson. It's also not even clear if intent must be proven or what type of intent must be proven.




What specific testimony are you referring to? If I remember correctly, the gun went FA when in the possession of his buddy so thats kind of a moot point. The issue is whether in its current configuration does it constitute a machine gun. ... As far as the rest of the relevant factors, (i.e. methodology) there really isn't much of a methodology for testing a firearm. ... If anything, the fact that they tested the weapon with several types of ammo strengthens the viability of this testimony.

Well the testimony of the friend that it fired multiple out-of-battery might make the ATF agent testimony redundant, but that does not mean that once the ATF agent's testimony was elicited it does not have to be subject to the same requirements of 403 and 703.

I agree that the qualification of the ATF agent was likely not an issue, but by saying "there really isn't much of a methodology for testing a firearm" is kind of just admitting that the testimony was improper under 703. I think a good comparison to that is for example expert officer testimony for telling whether someone was under the influence of drugs. They talk about the nature of the training, the specific tests they perform, why those tests are reliable, etc. and describe how it is all part of a routine and standardized test for telling whether someone is under the influence.

The problem in this case is exactly as you put it, the ATF has no methodology for determining whether something is a machine gun. There were no standard law enforcement procedures. It is entirely clear that the ATF lacks any standards for telling whether something is a machine gun and simply decides on an ad hoc basis. Whether or not those actual decisions are valid, or they violate the APA, when that type of decision making is put before the court in a criminal case in the form of expert testimony, it must meet the requirements of 703, which it does not. If instead the ATF actually prior to this case had developed a testing regimen, written it down, said what specific types of ammo would be tested, compared the ability of the gun to fire out of battery with each type of ammo compared to a gun known not to be a machine gun to fire out of battery, etc. then it wouldn't be a 703 problem. Instead, the ATF just made things up as they went along and then presented it as reasoned expert testimony.



Bolded the important part for you. These three are not inclusive. Any one is sufficient.

If you agree that the non-intent definition is the applicable one to this case, then intent is not relevant and therefore the MG selector should not be admitted. Similarly, if the non-intent definition is the theory of the case then the case violates due process because there is no way to have fair notice that a particular firearm will or won't malfunction and fire more than one round out of battery.


Now you are just reaching. Even if it is unclear how automatically is defined, offering a random definition isn't conclusive. Seeing as how courts do take into account dictionary definitions when trying to construe a word in absence of a statutory definition, it should interest you that merriam webster has a specific definition for the word automatic in the context of firearms. Specifically, the definition of automatic is "firing repeatedly until the trigger is released". Thus it shouldn't surprise you that the court would use this definition, battery or otherwise.

Well the problem with both of our definitions is that we need to use 1934 dictionaries. I believe mine is closer to being correct because the statute says "automatically" the adverb form of automatic is very rarely used to mean automatic in the firearms specific sense.


Thats because, to put it succinctly, I think your point is bunk. Complaining about "the man" is never a viable argument. In any justice system, there are going to have to be certian compromises that are made in the interests of efficiency (and by efficiency I mean just being able to run). These aren't indicative of some conspiratorial nature to send innocent people to jail. In fact, looking over only the last 30 year I think its fair to say that the system has bent over backwards in respecting rights.

I'm not saying that it is a conspiracy or anything of the sort, it's done right out in the open, admittedly in legalese that most people don't understand. I agree there have to be compromises in the interests of efficiency, but efficiency is not an end to itself (less you truly desire Kangaroo courts), but rather further the ends of justice. I don't think anyone can claim though that the methods of review for criminal convictions by an appellate court are specifically designed to overlook error by the trial court as long as the violations weren't really really bad. Too you that's efficiency, but to me that crosses the line to injustice. It's also hard to contest that appellate courts' post-hoc review of the evidence on a dry record is not going to accurately predict what would actually have a determinative effect on the jury. Jury verdicts are black boxes and judicial review based on whether or not the verdict would have been the same if constitutional and statutory rights weren't violated is nothing but a farce.

Regarding the overall change in the law over the last 40 years, maybe you and I took different criminal procedure classes but the 4th amendment looks like a piece of swiss cheese to me.

So let me get this straight. A person with a firearm that went FA would be under no notice whatsoever that lending this gun to a friend would be a problem. Let me know when you step back into reality.

Well there are several obvious notice problems,

Would the person from the face of the statute and existing case law have fair notice that the MG statute would be interpreted to include undesired and unintended malfunctions that result in multiple rounds firing out-of-battery?

Could a person be able to acertain that the firearm shoots more than one round automatically within the meaning of the statute as construed by a district court? The very nature of an intermittent malfunction is that one will never know when the malfunction will occur. Just because the firearm had previously fired more than one out of battery, there was no way for the defendant to know at the time it was transfered whether it "shoots" more than one round automatically.

Essentially you are saying criminal liability should be dependent on any number of complex factors interacting in unknowable ways: such as the interaction between the degree of fouling in the gun, the temperature in the room, the precise relative positioning of all the parts in the weapon, the type of ammo used, etc. That is very different from the type of acceptable public safety strict liability crime such as whether a drug sold was a particular chemical, which can be verified with chemical experiments or by knowing how the material was made. This ultimately ties into and is supported by the ATF's lack of a methodology to determine if the gun qualifies as a machinegun. If the ATF has no methodology to determine someone has a machine gun, how can an individual be able to make the inquiries necessary to satisfy the due process clause for a strict liability public safety crime.



Then I submit you haven't seen many closings. While reasonable doubt may not be technically defined its easily a stable enough concept for a jury to grasp. Its nowhere even close to being "ambiguous or subjective". Case in point, look at your first example. The entire purpose of confusing the jury is to prevent them from hurdling this standard.

I can't believe you just said that reasonable doubt is "nowhere even close to being 'ambiguous or subjective.'" Seriously? There are objective criteria establishing what a doubt is and whether it is reasonable? If there were, the instruction wouldn't be "reasonable doubt" it would be "evaluate these objective on-off black-white factors." In the form the jury gets it, "reasonable doubt" is nothing more than a verbal incantation.

I also admit I haven't' seen that many closings, but considering the modern narrative understanding of jury decision making, relying entirely on formal burdens of proof is unlikely to be successful.

I'm not suggesting that the entire closing will be devoted to this, but you will not find a single closing that does not address both this standard and the fact that the burden of proof is on the state, usually while going through the charge.

Its not some passing technicality. It is a legitimate and meaty factor and has been THE reason for many acquittals.

I'm not saying that reasonable doubt isn't used in closings or isn't a significant factor, I'm saying on balance, it is not enough to shift the scales in favor of the defendant (or even equal) given the significant thumb on the scale the prosecution gets from psychological disposition to believe the prosecution (not to mention other things like opening first and closing last, etc.).

[STAGE 2]

403 isn't just prejudicial, it includes things such as confusing the jury.

And again, there is no way introducing evidence that installing a selector switch is confusing. Its just not. We aren't dealing with some anomolous concept. Replacing one cheap tiny part with another chep tiny part isn't difficult to comprehend at all.

Secondly, it's not probative of intent because of the theory of the prosecution is that the firearm is a machine gun by virtue of it firing out of battery, not by virtue of any intentional modification by Olofson. It's also not even clear if intent must be proven or what type of intent must be proven.

Olofson was charged with transferring a MG. There are two issues here. One, whether Olofson was aware that this was an MG and two, that this is actually an MG. If Olofson messed with the MG, or if he placed the switch on the gun BECAUSE it was going FA, then this tends to show that he was aware that it it was going FA. Even is intent isn't required, this still strengthens the prosecutions case as it ultimately goes to disprove Olofsons assertions that he had no intention to transfer an automatic weapon.

All of this aside, the single most important reason this is admissible is simply because it is a part of the weapon, which is the central issue in this case. Whether the court knows about guns or not, it would be ridiculous to suggest that only certian parts of the firearm could be talked about but others could not.

You have to remember that logical relevance isn't some huge menacing standard. It was never intended to be. Its also within the discretion of the court. But like I said earlier, you aren't going to ever have a gun case where you can't talk about the gun in detail. Thats why even though a trigger job doesn't go to any element of a murder case, it may still rightfully be brought up and presented to the jury.


Well the testimony of the friend that it fired multiple out-of-battery might make the ATF agent testimony redundant, but that does not mean that once the ATF agent's testimony was elicited it does not have to be subject to the same requirements of 403 and 703.

I wasn't suggesting otherwise.


I agree that the qualification of the ATF agent was likely not an issue, but by saying "there really isn't much of a methodology for testing a firearm" is kind of just admitting that the testimony was improper under 703.

No its not. You have to remember that daubert originally was restricted to scientific theory only. And by scientific, I mean actual science. It since been expanded and tweaked to apply to all experts, and as I'm sure you know, it is not a hard and fast test. Courts have clearly stated that not all of the daubert factors will be applicable to all subjects. One factor that may be suitable for a case involving metalurgy might not be suitable for a case involving medical issues. It is up to the judge to determine which factors are relevant and if the person in question meets those factors.

There isn't a "scientific method" for testing firearms. As I said before, what little standardized procedures there are have been derived from law enforcement. Because of this, the experts qualifications and experience are going to be the heavy factors in a case involving guns. Simply put, the LEO's are the wrote the book, so if they cant qualify as a firearms expert, then no one could.


I think a good comparison to that is for example expert officer testimony for telling whether someone was under the influence of drugs. They talk about the nature of the training, the specific tests they perform, why those tests are reliable, etc. and describe how it is all part of a routine and standardized test for telling whether someone is under the influence.

But again, there are standardized procedures for determining whether someone is high. There really aren't for firearms. You really can't have one because of the different nature of guns. What is used on a rifle won't be used on a pistol, and that cant be used on a revolver, and that cant work on a shotgun. Thats why qualifications are largely the determining factor.

The problem in this case is exactly as you put it, the ATF has no methodology for determining whether something is a machine gun. There were no standard law enforcement procedures. It is entirely clear that the ATF lacks any standards for telling whether something is a machine gun and simply decides on an ad hoc basis.

Thats not the fault of the ATF, thats the fault of the legislation.


Whether or not those actual decisions are valid, or they violate the APA, when that type of decision making is put before the court in a criminal case in the form of expert testimony, it must meet the requirements of 703, which it does not. If instead the ATF actually prior to this case had developed a testing regimen, written it down, said what specific types of ammo would be tested, compared the ability of the gun to fire out of battery with each type of ammo compared to a gun known not to be a machine gun to fire out of battery, etc. then it wouldn't be a 703 problem. Instead, the ATF just made things up as they went along and then presented it as reasoned expert testimony.

Sorry, but it doesn't work like that.



If you agree that the non-intent definition is the applicable one to this case, then intent is not relevant and therefore the MG selector should not be admitted. Similarly, if the non-intent definition is the theory of the case then the case violates due process because there is no way to have fair notice that a particular firearm will or won't malfunction and fire more than one round out of battery.

I've already addressed the selector issue. Defining a MG has nothing to do with intent. The statute says that an mg is a weapon that shoots (or) is designed to shoot (or) can readily be made to shoot, automatically more than one shot by a single function of the trigger. Thats why we have the lovely string law.

I don't know why you are harping on due process as it has nothing to do with this definition. If you own a gun and it goes FA through no fault of your own, you have broken no law even though it may technically be classified as an MG. The government will have to prove that you messed with it. Practically speaking its not a good idea to have a weapon that goes FA because even if its not your fault, the ATF doesn't know that, and they sure aren't going to take your word for it. That means you may end up in court proving your case.

None of this has anything to do with the current situation. If you havea weapon that you know goes FA, and you lend it to a buddy, then you are talking a massive gamble. Its ridiculous to cry foul when the guys in raid gear come knocking when the problems were so very apparent.

[STAGE 2]

Well the problem with both of our definitions is that we need to use 1934 dictionaries. I believe mine is closer to being correct because the statute says "automatically" the adverb form of automatic is very rarely used to mean automatic in the firearms specific sense.

You're still stretching. Both you and I know that where firearms are concerned, the term automatic has always meant the same thing. Squeeze the trigger, and empty the mag.


I don't think anyone can claim though that the methods of review for criminal convictions by an appellate court are specifically designed to overlook error by the trial court as long as the violations weren't really really bad.

Then why were you.


Too you that's efficiency, but to me that crosses the line to injustice. It's also hard to contest that appellate courts' post-hoc review of the evidence on a dry record is not going to accurately predict what would actually have a determinative effect on the jury. Jury verdicts are black boxes and judicial review based on whether or not the verdict would have been the same if constitutional and statutory rights weren't violated is nothing but a farce.

Just out of curiosity, what experience do you base this on. Because the only alternative to remedy your objections would be to essentially retry the case for a second time. You simply can't do that. There has to be a line drawn and I think that the perfect balance between equity and efficiency is at error that would have resulted in a different verdict.



Regarding the overall change in the law over the last 40 years, maybe you and I took different criminal procedure classes but the 4th amendment looks like a piece of swiss cheese to me.

Then we apparently did take different classes.



Would the person from the face of the statute and existing case law have fair notice that the MG statute would be interpreted to include undesired and unintended malfunctions that result in multiple rounds firing out-of-battery?

Unquestionably. I think its more than fair to say that its common knowledge that having a FA firearm, whether intentionally or by mistake, is bad juju.


Could a person be able to acertain that the firearm shoots more than one round automatically within the meaning of the statute as construed by a district court? The very nature of an intermittent malfunction is that one will never know when the malfunction will occur. Just because the firearm had previously fired more than one out of battery, there was no way for the defendant to know at the time it was transfered whether it "shoots" more than one round automatically.

That was one of my original points. I haven't seen any testimony by Olofson or any contention that he was not aware that the the gun wasn't going FA.

I fully agree that someone who shoots a firearm that functions normally, lends it to a buddy, and then it malfunctions, has not run afoul of the law.

Essentially you are saying criminal liability should be dependent on any number of complex factors interacting in unknowable ways

Not at all. What I am saying is that if you have a malfunction that causes the gun to go FA, get it fixed and don't lend it to a friend. If you do, then you are opening yourself to liability. While the statutes aren't crystal clear, they give more than enough notice to let someone know that the potential for liability exists.


I can't believe you just said that reasonable doubt is "nowhere even close to being 'ambiguous or subjective.'" Seriously? There are objective criteria establishing what a doubt is and whether it is reasonable?

Its not ambiguous in that there are 2 other standards to compare it two. A preponderance is pretty easily described. Clear and convincing, is more anomolous, but higher up than a preponderance. Beyond a reasonable doubt is the highest threshold, and while not technically defined isn't all that hard to explain or figure out.


If there were, the instruction wouldn't be "reasonable doubt" it would be "evaluate these objective on-off black-white factors." In the form the jury gets it, "reasonable doubt" is nothing more than a verbal incantation.

A verbal incantation explained by the defense attorney at length.


I also admit I haven't' seen that many closings, but considering the modern narrative understanding of jury decision making, relying entirely on formal burdens of proof is unlikely to be successful.

I never said this, although there are some cases in which this is the only real tool the defense attorney has. What I did say is that the burden of proof and reasonable doubt are two very useful tools that the defense has. A substantial portion of closings are devoted to explaining the standard, and illustrating why certian pieces of evidence create doubt.


I'm not saying that reasonable doubt isn't used in closings or isn't a significant factor, I'm saying on balance, it is not enough to shift the scales in favor of the defendant (or even equal) given the significant thumb on the scale the prosecution gets from psychological disposition to believe the prosecution (not to mention other things like opening first and closing last, etc.).

Well I'm going to have to disagree with you on this one. I don't think that the prosecution has nearly the psychological advantage that you suggest. What little there is usually doesn't last past openings. Reasonable doubt however is drilled into the heads of the jury immediately before they are excused. Add to this the fact that the defense attorney get to use language like "must" and "required" and its a point that is driven home even further.

Like I said, talk to a jury thats acquitted and almost all of them will give reasonable doubt as either the main reason or one of several that they used to justify their vote.

[double_action]

David Olofson got sentenced yesterday to 30 months . . .

http://www.jsonline.com/story/index.aspx?id=750464

[Bishop]

Olofson contended an ATF document showed that the company that made his AR-15 used M-16 automatic parts in some of them, including his, which would explain that it malfunctioned. Clevert reviewed the document and found it wouldn't exonerate Olofson.

Manufacturer installs automatic parts by mistake, and the gun fires more than one shot, under any circumstances?

Federal Prison.

Better pray that next SKS you take home doesn't have the firing pin jammed forward or installed backwards (yugo). According to this ruling, as soon as it's released to you, you are in possession of a machine gun.

Hell, you put soft primer ammo in any of your free-float firing pin guns, you could be in possession of a machine gun. Or, for that matter, regular commercial ammo in a gun meant for military hard-primers.

EDIT: BTW chamber a round in your AR and see if the primer has a dimple.

[chokeyourself!]

damn that sucks, i remember when my sks went full auto on me at burro. It scared the crap out of me i was only holding the rifle with one hand.

[Ray Newman]

I read the entire thread on AR15.com & look there every few days for any updates. The thread is some 60 odd pages long & is a time consuming read. IMO, something just doesn’t ring true about what Bladerunner posted.

Bladerunner could very well be innocent of the charges, but what astounded me was that he did not testify on his own behalf during the trial!

When asked about this, he merely responded that the jury would not believe him because the US attorney had told so many lies about him in court.
www.ar15.com/forums/topic.html?b=1&f=6&t=507483&page=40

To me, that strikes of admitting your guilt. Or, his attorney wouldn’t let him testify because he was afraid of what Bladerunner would say or how he would present himself to the jury?

Seems to me that Bladerunner would have wanted the jury to hear his side of the story. If you were facing similar charges, would you sit silently in court & not present your testimony to the jury?

Also, what we have been told is only his version of what he wants us to know about what allegedly happened.

Again, not to say that he isn’t innocent, but I have my suspicions, esp. in light of the above.

[Bishop]

he did not testify on his own behalf during the trial!

...

To me, that strikes of admitting your guilt.

It's not called "admitting your guilt". It's call the 5th amendment.

[mecam]

EDIT: BTW chamber a round in your AR and see if the primer has a dimple.

Happens all the time with my CMMG upper. That's why I only use CCI primers. ;)

[Bishop]

That's why I only use CCI primers. ;)

The batfe will use whatever primers it wants when testing. It's testing is not documented, and has no restrictions. If it's possible for your firearm to fire more than one round per trigger pull, UNDER ANY CIRCUMSTANCES this ruling says you have a machine gun.

EDIT: From Len Savage who was close to the case:
The rifle in question seized now by the ATF; It was sent to Firearm Technology Branch (FTB), the testing Arm of the BATFE. They examined and test fired the rifle; then declared it to be "just a rifle". You would think it would all be resolved at this point, this was merely the beginning. The Special Agent in Charge Jody Keeku asked FTB to re-test the firearm and this time use soft primered commercial ammunition.
link (http://redstradingpost.blogspot.com/2008/01/len-savage-duck-hunters-and-sportsman.html)

[Ray Newman]

Bishop: you made reference to the 5th Amendment.

Considering all the internet statements that Bladerunner made about his case, his innocence, as well as the implications of a guilty verdict -- incarceration & permanent loss of right to own a firearm(s) -- there was nothing that he could tell the jury that would show his innocence or not incriminate himself??

I just find that very questionable & hard to believe.

I also think that if you ask people about the 5th Amendment, most have the impression -- right or wrong -- that the person using a 5th Amendment defense has something to hide.

[Bishop]

Considering all the internet statements that Bladerunner made about his case, his innocence, as well as the implications of a guilty verdict -- incarceration & permanent loss of right to own a firearm(s) -- there was nothing that he could tell the jury that would show his innocence or not incriminate himself??
Once he was on the stand only two questions would need to be asked, "Is it possible your firearm could fire more than one round per trigger pull?" The truthful answer is "Yes" because if any semi-auto firearm malfunctions it's possible for it to fire more than one shot per trigger pull. The next question would be, "Did you have any form of contact with a group of people who were upset with the government?" The truthful answer is "Yes" because if you read gun boards on the internet, you too have had contact with people who were upset with the government.
Him going on the stand would have been far more damaging to his case than not.

I just find that very questionable & hard to believe.
And I find it to be his right.

I also think that if you ask people about the 5th Amendment, most have the impression -- right or wrong -- that the person using a 5th Amendment defense has something to hide.
http://www.regent.edu/admin/media/schlaw/LawPreview/
Right or wrong, it was his butt on the line. If yours is ever on the line, I recommend following the advice of your lawyer too.

[drawn]

36 months? WTF!!! If it wouldn't drive me crazy to give up I'd give up. This sentence is absolutely ludicrous. I'm calling LCW to find out WTF is going on in his State.

[odysseus]

I don't know, I haven't had time yet to go through the PLETHORA of reading surrounding this case.

However I have some concerns.

1) Many people buy parts and pieces from many manufacturers of custom parts for the AR. We ALL KNOW that some rigs can get into a slamfire condition due to various issues. This has happened to people, and as I understand it the friend had shot nearly 800 rounds before this issue happened once? That could happen to A LOT of people, especially with ATF provided ammunition. Man... something does not smell right here. Stage-2 has brought up the issue that the defendant modified the weapon in question to do this. I haven't seen this quite yet, not sure what this is specifically? The point is can the ATF, if you put say some other trigger assembly in and take it to the range it malfunctions a 2 round burst, just now assume you are a felon making a fully automatic weapon?

2) No ability for defense to examine the weapon is HUGE to me. Certainly I think that will be a big target in the appeal. I don't understand that one at all and it smells damn off.

[Ray Newman]

Bishop: you offer some interesting & valid points.

If asked the 1st. question you proposed, could he have said, something to the effect that yes, but only under the following circumstances, none of which could have happened unless the rifle was altered or malfunctioned, & I did not alter it??

But I still wonder how his silence sat w/ the jury.

Yup, you're right, it is best to follow your attorney's advice.

In another life, I was an investigator & it never failed to amaze me that some people just wouldn't listen to their attorney or say the first thing that came to mind w/o thinking it all through.

I haven't had the opportunity to completely view the link you posted. While the speaker cautions against talking to the police, I'll also add don't ever let them enter your residence w/o a warrant. And as one attorney once said if they ask you step outside, respectfully decline.

All in all this is an interesting case. Will be interesting to see how it turns out on appeal.