1979 Oversight Hearings on Bureau of Alcohol Tobacco and Firearms
HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE NINETY-SIXTH CONGRESS FIRST SESSION
Printed for the use of the Committee on Appropriations
SPECIAL HEARING Department of the Treasury Nondepartmental Witnesses
U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 1979
CONTENTS
WEDNESDAY, JULY 11, 1979
Nondepartmental witnesses: National Rifle Association................................. 1 New Hampshire gunsmith..................................... 20 Phoenix. Ariz., gun dealer................................. 32 Firearms retailer and wholesaler.......................... 185 Florida gun dealer........................................ 167
THURSDAY, JULY 12, 1979
Nondepartmental witnesses: Jackson's. Inc., Federal firearms licensee............... 190 Citizens Committee for the Right To Bear and Keep Arms... 199 Department of the Treasury: Bureau of Alcohol, Tobacco and Firearms.................. 357
OVERSIGHT HEARINGS ON BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
WEDNESDAY, JULY 11, 1979
U.S. SENATE, SUBCOMMITTEE ON TREASURY, POSTAL SERVICE AND GENERAL GOVERNMENT COMMITTEE ON APPROPRIATIONS, Washington D.C.
The subcommittee met at 10:05 a.m., in room 1318, Everett McKinley Dirksen Office Building, Hon. Dennis DeConcini presiding. Present: Senators DeConcini and McClure.
NONDEPARTMENTAL WITNESSES
NATIONAL RIFLE ASSOCIATION
STATEMENT OF NEAL KNOX, EXECUTIVE DIRECTOR
ACCOMPANIED BY: JIM FEATHERSTONE, DIRECTOR, LEGAL DIVISION MIKE ACREE, FORMER COMMISSIONER OF CUSTOMS
SUBCOMMITTEE PROCEDURE
Senator DECONCINI. The Appropriations Subcommittee on Treasury, Postal Service, and General Government will come to orderat this time.
First, I want the record to show my appreciation to Senator Lawton Chiles and the staff of the committee for their assistance in this effort. This is an informational hearing on the BATF and its involvement in the registration of arms stemming from controversy that arose last year regarding their budget, and their efforts to move in the direction that some might believe was an effort toward the registration of individual arms.
Today we will have testimony from the Director of the Bureau of Alcohol, Tobacco and Firearms and also the Assistant Secretary of the Treasury. We will also hear from individual citizens who have been involved with different problems relating to the BATF.
The National Rifle Association will testify. Our first witness this morning will be Neal Knox, executive director of the National Rifle Association. Mr. Knox, will you come forward.
INTRODUCTION OF ASSOCIATION
Mr. KNOX. Thank you, Mr. Chairman. I am accompanied this morning by Jim Featherstone, who is our director of the legal division, also our executive counsel. Jim is the former Deputy Assistant Secretary of the Treasury. I am also accompanied by Mr. Mike Acree. Mike is former Commissioner of Customs, has had some 40 years in law enforcement mostly with the Treasury Department and Mike has served as an investigator for us.
Senator DECONCINI. What was the second name?
Mr. KNOX. Acree; A-c-r-e-e. The purpose of their being here would be to answer any questions that the chairman might have. I appreciate very much the opportunity to testify on behalf of the National Rife Association. We are composed of some 1.2 million members nationwide, primarily engaging in the various shooting sports, hunting, and firearms collecting.
For a number of years we have sought redress for a variety of forms of persecution, often involving outright violation of the law, by the Bureau of Alcohol, Tobacco and Firearms.
We believe that when the full picture is seen by the Congress, it will become apparent that the BATF has become a rogue agency, one which has gone completely outside the limitations of statute, regulations, or lawful authority. When challenged about its behavior, the BATF's response has been to seek to improve their relations with the Congress by hiring new congressional liaison officers, which number equals the lobbyists we have.
A few of the victims of BATF abuses are here today. They will tell the basic story of their particular problems, but they are merely the tip of the iceberg.
They will indict this agency for entrapment of law-abiding citizens and the ruining of their lives through unwarranted publicity generated by the BATF generally-but not always-accompanied by felony prosecutions. They will indict it for devoting its energies to the persecution of law-abiding citizens, while almost completely neglecting genuine criminals.
They will indict it for engaging in a variety of illegalities ranging from physical brutality to perjury, to illegal searches. And when we remember that for every case of these witnesses them may be hundreds of other such cases-we know of many-the picture becomes dire.
Until recently, much of BATF's manpower was devoted to alcohol taxation enforcement. But with the increase in the price of sugar, moonshining has gone out of style and the BATF has concentrated its enforcement efforts upon lawful firearms uses. Rather than to go into the proper area of enforcement against criminal misuse, they have focused on arrest of the law-abiding citizen.
While we have no love for the evil way in which this agency has enforced the firearms law, we believe that any other agency assigned to enforce such a poorly written law as the Gun Control Act of 1968 would face enormous temptations to behave in much the same manner. The Federal laws are surprisingly limited in theireffect upon the criminal misuse of firearms. The few sections of the law which might be effectively used to reduce criminal violence, such as the provision prohibiting convicted felons from possessing firearms or the provisions providing stiff punishment for possession of machineguns or sawed-off shotguns, those provisions are not enforced.
Amazingly, BATF has issued instructions to its agents not to prosecute cases which are prosecutable under State laws-a policy which has resulted in violations of Federal gun laws by hardened, violent criminals being ignored by U.S. officials, even when those criminals had received leniency from State courts.
The BATF has concentrated its enforcement efforts upon technical violations, all of which are Federal felonies, by normally law-abiding citizens, because even those cases are too infrequent to necessitate such a large agency, BATF has justified its existence by artificial inflation of arrest statistics for Federal gun law violations and crime gun seizures through entrapment schemes and other abuses. The witnesses will mention some of the various types of abuses that we have encountered.
There are basically three types. The first type is dealing without a license. That is due to section 923(a) of the Gun Control Act not defining what does constitute "engaging in the business without a license," which is prohibited. I tried to get the Treasury Department to define that at the time the Gun Control Act was going into effect, and I had nothing but trouble, nothing but opposition from Treasury.
They said that they needed vague wording in order to enforce the law, to have maximum discretion. As has so often happened when an agency is given discretion, it uses that discretion with indiscretion. There is no way, and there never has been any way, by which a firearms collector may know when that which he considers his hobby will be termed "dealing without a license" by the BATF, or when he may have his guns seized and face felony charges. It is a Catch-22 situation.
While an individual collector may be charged for dealing without a license, the person doing exactly the same thing may be told he cannot have a license because he doesn't qualify. At the same time, BATF is actively discouraging the number of licensees. They have a policy, announced in 1975, of reducing the number from some 159,000 to around 30,000, according to the then Director.
The problem is that some people collect guns in the same way other people collect Ming vases, but Ming vases don't come under Federal law. When the guy who is a collector goes out he may be collecting a real fine, particular type of firearm, or he may be collecting a hodgepodge of guns, because his goal is outwitting his fellow collectors. He will try to go in like a guy swapping a pocket knife and winding up with a race horse. He will go in with a bolt-action .22 rife and hope to come out with a $5,000 Purdy shotgun. It doesn't happen very often, but he has a lot of fun trying.
This kind of collector is very easily set upon by BATF agents who can buy a gun from him, and another agent later can buy another gun and then charge him with dealing without a license. It may be at a gun show, or swapping and trading around the city where he lives. When BATF comes in, they talk about a "cache of weapons" or an "arsenal of arms" that they seize. When that happens, this guy is discredited. The community wonders about him-"I never knew my friend Joe is running guns to the underworld," but that is what the press says.
We don't have time to talk about all of the problems we have encountered. But I hope that you will go into some of these things, talk about what the problems are with the law, and how the law is enforced. We have today just a few types, I would like to mention one of the examples, the "straw man" sale, as it is popularly called.
In this form of entrapment, a licensed dealer refuses to sell a firearm to a BATF agent or paid operative who cannot legally make a purchase-he is usually a resident of another State. Then a second agent, with proper credentials, the straw man, makes the purchase for the nonresident. The agent then brings charges against the dealer.
Another category of abuse-and we would think this category would particularly be enforced property against terrorists-is the enforcement of title II, which is the section against cannons, full automatic weapons, and the like. Even in this exotic field the Bureau has managed to abuse its powers on a regular basis.
Shortly after the Gun Control Act went into effect a special agent-in-charge I knew in Boston tried to bring charges against the city of Boston for failure to have registered destructive devices-that is, weapons-with more than a half-inch bore: to wit, the 16-inch guns from the battleship Massachusetts, which Is a city park.
We had deactivated machineguns taken from the NRA museum. Some of those the Smithsonian said they would like to have. BATF would like to have them obviously for its own collection. We know of VFW halls and American Legion halls across the country that have had cannons and machineguns taken from them, as if these were dangerous weapons likely to be used in some kind of horrible crime.
If any other law enforcement agency were to behave as the BATF has behaved, American civil libertarians would be vociferously demanding that those agencies and the law that makes this possible be hauled before the courts and Congress and the law be changed.
But because this agency is responsible for gun laws and because many of BATF's abuses are against gun owners, many of those civil libertarians are willing to adopt an attitude of selective civil rights. I submit, Mr. Chairman, firearms owners did not give up their civil rights as of the time they bought a firearm.
I further submit that BATF has used funds made available by the Congress, after approval by this committee, to systematically abuse American citizens. I urge you to launch a full-scale investigation of the activities of BATF, to publicize the results, and call to the attention of your colleagues the sections of law which have allowed this agency to misuse the funds which Congress has authorized.
With our limited access to the internal flies of BATF, we have uncovered an institutionalized pattern of abusive behavior by the Bureau of Alcohol, Tobacco and Firearms. We have discovered a woeful lack of proper supervision, a lack of proper law enforcement, and a resultant awesome waste of the taxpayers' dollars. We have discovered outrageous destructions of the lives, livelihoods, and well-being of countless respected, law-abiding citizens. Only a fraction of our evidence can be presented during these hearings, but I urge you to fully explore the activities of this agency, and offer the help and assistance of the NRA and its membership, who have most frequently been the victims of this rogue agency, and the travesty of law under which they function.
Thank you, Mr. Chairman. I would be glad to respond to any questions.
Senator DECONCINI. Mr. Knox, thank you very much for your testimony. Your prepared statement has been received and, without objection, will appear in the record at this point.
[The statement follows:]
STATEMENT OF NEAL KNOX
Mr. Chairman, members of the Committee, I am Neal Knox, Executive Director of the National Rifle Association Institute for Legislative Action. The NRA is composed of 1.2 million members nationwide, primarily engaging in the various shooting sports, hunting and firearms collecting. For a number of years, our members have sought redress for a variety of forms of persecution -- often involving outright violation of the laws -- by the Bureau of Alcohol, Tobacco and Firearms. I must express our deep thanks to this Subcommittee for arranging to hear from a few of the many individuals who have been wronged by that Bureau.
We believe that when the full picture is seen by the Congress, it will become apparent that the Bureau of Alcohol, Tobacco and Firearms has become a "rogue' agency, one which has gone completely outside the limitations of statute, regulations, or lawful authority. When challenged about its behavior, the BATF's response has been to conceal or gloss over their gross errors, and to embark upon Public relations efforts instead of correcting fundamental problems. For example, their apparent response to NRA's statements of intention to pursue the abuse question, and the decision of this and other Committees of the Congress to investigate the matter, has prompted BATF to hire its own Congressional liaison director.
They reportedly are seeking four congressional liaison officers to work under him. We would have hoped they would have improved their procedures in response to the complaints; instead they are seeking to improve their relations with the Congress in the hope that they might forestall any real changes in their activities.
A few of the victims of its enforcement practices will present for you here an indictment of the Bureau.
They will indict it for-entrapment of law-abiding citizens, and the ruining of their lives through unwarranted publicity generated by the BATF usually -- although not always --accompanied by felony prosecutions.
They will indict it for devoting its energies to the persecution of law-abiding citizens, while almost completely neglecting genuine criminals.
They will indict it for engaging in a variety of illegalities ranging from physical brutality, to perjury, to illegal searches.
And when we remember that for each of these witnesses there may be hundreds of other cases in which the same activities have been utilized, the picture becomes dire indeed.
As a preface to a discussion of the abuses themselves, some background is essential. The Bureau of Alcohol, Tobacco and Firearms had its origin in enforcement of the alcohol taxation and later prohibition laws. Until 1969, it remained a subdivision (the Alcohol and Tobacco Tax Unit) within the Internal Revenue Service. In 1969, firearms were first mentioned in its letterhead, as it became the Alcohol, Tobacco and Firearms Division of the IRS. In mid-1972, partially in an effort to improve its law enforcement performance, it was made a full Treasury bureau under its present title.
Throughout this period the Bureau and its predecessor agencies continued to expand in size and power. Like any other governmental agency, its employees had a vested interest in increasing the size and power of the Bureau, which expanded their own power and potential for promotion.
The Bureau was faced with a significant problem, however. Until recently, much of its manpower was devoted to alcohol taxation enforcement, pursuing illegal moonshiners. Lately, the skyrocketing price of sugar has virtually driven the moonshiner out of business. The number of illegal stills raided fell from 15,000 in 1956 to less than 3,000 in 1972, and plummeted to only 361 in 1978.
Trapped between the obsolescence-of its traditional enforcement function, and the desire to expand manpower, budget, and powers, the Bureau chose the role of creating artificial criminals within the scope of its firearms enforcement function. Since undercover penetration of genuine firearm criminals – organized crime, radical groups, black market operations, and so forth -takes much time, expertise and training generally lacking within the Bureau, and a considerable amount of agent risk, the Bureau chose to ignore such an effort. Instead, it focused upon the harassment of law-abiding citizens.
In doing so, this agency, created and funded by the American people, callously chose to advance its own bureaucratic prestige at the price of ruining the lives of hundreds or thousands of law-abiding American citizens.
While we have no love for the evil way in which this agency has enforced the firearms law, we believe that any other agency assigned to enforce such a poorly written law as the Gun Control Act of 1968 would face enormous temptations to behave in much the same manner. In essence, the federal firearms laws are surprisingly limited in their effect upon the criminal misuse of firearms. The few sections of the law which might be effectively used to reduce criminal violence --such as the provisions prohibiting convicted felons from possessing firearms, or the provisions providing stiff punishment for possession of machine guns or sawed-off shotguns -- are not enforced.
Amazingly, BATF has issued instructions to its agents not to prosecute cases which are prosecutable under state laws -- a policy which has resulted in clear-cut violations of federal gun laws by hardened, violent criminals being ignored by U.S. officials, even when those criminals had received leniency from State courts.
Instead, the BATF has concentrated its enforcement efforts upon technical violations (all of which are federal felonies) by normally law-abiding citizens. Because even those cases are too infrequent to necessitate such a large agency, the BATF has justified its existence by artificial inflation of arrest statistics for "federal gun law violations' and "crime gun seizures" through entrapment schemes and other abuses.
We would here like to discuss, very briefly, three major forms of abuse which have been uncovered in a large number of Bureau cases. These major categories by no means constitute the entire list of Bureau abuses; but they are abuses which have occurred on a widespread scale and which moreover represent types of cases illustrated by the victim-witnesses which this Subcommittee will be able to hear in the limited time available. By no means can these be accounted for as aberrations by individual agents or offices; these three forms have been reported from coast to coast, and can only represent institutionalized BATF practice.
The first type involves the "dealing without a license" entrapment. This manner of entrapment is primarily aimed at firearm collectors who are not licensed as dealers in firearms. The problem is that Section 923 (a) of the Gun Control Act states that no Person shall "engage in business" as a firearms dealer without a license to do so. But there is no definition of what constitutes engaging in business.
This problem did not begin with the Gun Control Act of 1968; it also existed in the Federal Firearms Act of 1938. About 1965, when I was a newspaper reporter and freelance magazine writer, I reported upon abuses in Louisiana and elsewhere by the then-ATTU, which was threatening or filing charges against individual collectors for engaging in the firearms business without a license -- without defining what constituted firearms dealing. The same situation, based on an incident in South Carolina, resulted in the lead article in the first issue of Gun Week newspaper in October, 1966.
When I asked the ATTU for a precise definition of "engaging in business," I was referred to a court decision involving the sale of alcohol, in which the court held that a single sale was adequate evidence of being a dealer in alcoholic beverages. Of course, the situation between making a sale of a bottle of liquor and a sale of a firearm is totally different. Liquor is sold, and consumed; only in the case of relative rarities, such as individuals who collect vintage wines, is a bottle of alcohol sold more than once. However, a firearm may be purchased from a dealer, used for years, sold or traded to someone else, and again used for years before again being sold, ad infinitum.
I testified before both a House Committee and a Senate Committee concerning legislation that eventually resulted in the enactment of the Gun Control Act of 1968; in each of those statements, and in many private communications and discussions, I attempted to establish a definition of "engaging in the business" within the proposed new gun law. All such efforts were blocked by Treasury, on the grounds that they needed vague wording in order to give them the ability to enforce the law with maximum discretion; Congress complied. As so often occurs when an agency has too much discretion, it uses too little discretion.
There is no way, and there never has been any way, by which a firearms collector may know when that which he considers his hobby will be termed "dealing without a license" by BATF, or when he may have his guns seized and face those felony charges.
While an individual collector may be so charged, he is not able to obtain a license in order to safeguard himself for the simple reason that BATF actively seeks to discourage such licensing, both by counseling applicants that they do not need a license to collect and sell from their collection, and by outright harassment of persons who have obtained a license. This discouragement and harassment is undertaken pursuant to a policy the Bureau announced in 1975, of reducing the total number of licensees from 159,000 to only 30,000 since the bulk were not "bona fide" licensees.
It should be noted that at the time the Gun Control Act was under discussion, there were approximately 100,000 firearms licensees, and the principal promoters of that bill -- including the Treasury Department -- argued that a properly drafted new law would reduce the number of licensees to those who were "bona fide"- dealers. But when the Gun Control Act was passed, it contained a section which required a dealer license from all persons who distribute ammunition -a new requirement, meaningless from the law enforcement standpoint, but which greatly increased the numbers of licensees.
During debate on the 1968 Gun Control Act, Congress recognized that some people collect guns, in the same way that others collect Ming vases. While some gun collectors may have exceedingly fine collections, concentrated on a particular maker of firearms or a particular period of history, others may have a "hodgepodge" of modern and antique firearms, with no particular theme evident. With the latter type of-collector, the enjoyment of the hobby lies in buying, selling and trading, in order to outwit other collectors. The hoped-for goal of such a collector is to begin the day with a $5 bolt-action .22 rifle, and to conclude the day, after a lengthy series of complex trades, with an extremely fine, and valuable, antique firearm, or an expensive modern firearm.
Such a collector isn't likely to care what he has acquired, just so that which he has acquired is more valuable -- at least in his eyes -than what he brought to the gun show. Such a collector is extremely vulnerable to BATF persecution, for he may sell firearms to two or three agents, even at different gun shows, without realizing that he is being set up for a well-publicized raid, with all of his collection seized -- although BATF press releases will call it a "cache of weapons" or "arsenal," and often imply that he is running guns to the underworld.
The collector regards himself as a collector, not as a dealer. He has no business premises. He does not advertise his firearms for sale. He has no franchises and no arrangements with wholesalers. Although he may sell an individual firearm for a higher price than he gave in acquiring it, rarely will his total "profits" equal his costs of travel to gun shows, display tables, and related paraphernalia necessary to the conduct of his hobby. Further, it is an extreme rarity if all such "profits" do not go into upgrading his personal collection.
As far as the collector is concerned, he is selling items of his personal property purchased by him for his own collection or personal use. Such firearms are sold to federal undercover agents only because the agents approached him without his solicitation, and offered him a high price.
While BATF may secure an indictment against him for a federal felony violation, we have uncovered numerous cases where firearms were seized, but no charges were filed. If the collector sought the return of his property, BATF would tell him that federal felony charges would be brought, posing the specter of time-consuming and expensive legal proceedings which might exceed the value of the firearms seized, and the possibility of a felony conviction which would deny his possession of any firearm for the rest of his life. This practice could be called using the federal law for extortion - - but we call it stealing.
However, by this means, BATF creates a statistical criminal, adding an arrest and the confiscation of perhaps 100 firearms to their office reports. As some of you may have noted in the dialog of the "Rockford Files" which ran last Friday night on NBC television, never has any law enforcement agency been so noticeably preoccupied with statistics as BATF.
The price to the citizen is enormous, of course. Even if acquitted, he generally finds himself and his family financially ruined, paying out $5,000 or more for legal representation. In many cases, even after an acquittal, the Bureau still retains his firearms and announces its intention to destroy them or keep them for its own museum. Thus he is faced with additional legal expense -- and in many cases a delay of two to three years -- in order to secure the return of his firearms after acquittal.
In several cases and the Committee will hear the testimony of one of these the agents showed their distaste for a citizen who secured an-acquittal (or a rejection of the case by the prosecuting attorney) by deliberately damaging the firearms prior to their return. We do not believe that the Congress, in authorizing the Bureau to enforce this particular statute, intended public monies to be expended on such questionable behavior, on the harassment of law-abiding citizens and the confiscation or governmental vandalism of private property.
A second form of very popular BATF abuse consists of what we know as the "straw man" sale. This form of entrapment is specifically designed to drive a law-abiding licensed dealer out of business. It is extraordinary in that its sole utility is against a dealer who has refused to make what he believes to be an illegal transaction. In this form of entrapment, a licensed dealer refuses to sell a firearm to a BATF agent or paid operative who cannot legally make a purchase -- usually a resident of another state. Then a second agent, with proper credentials -- the "straw man" -- makes the purchase "for" the non-resident. Agents then bring charges against the dealer.
This form of entrapment originated in South Carolina in 1975, when the Bureau drove 37 licensed dealers out of business in this manner. From there, it spread to such diverse states as Virginia, Wyoming, Maryland, Florida, Colorado, and Arizona, as various local offices realized that it was an efficient way to generate a large number of spectacular arrests with comparably little work and virtually no risk. Agents who might have been expected to be out dealing with the black market or organized crime cheerfully undertook mass arrests under this doctrine, directing their efforts specifically against licensed dealers who declined to sell to non- resident, illegal would-be purchasers.
Here, also, the vindictive nature of some agents shows itself. When A. W. Phillips, a respected citizen and licensed dealer in Parksley, Virginia secured a directed verdict of acquittal (the federal judge noting that it was only the second such directed verdict he had given a defendant in 17 years on the bench) the Bureau agents revoked Phillips' firearms license based upon exactly the charges for which the judge had ruled that no case existed. They also, as in so many other cases, deliberately undertook to damage firearms confiscated from him, prior to returning them.
I should stress that this form of behavior is not common to all agents. Both BATF agents and former agents have described to me what they call BATF "Gestapo tactics." Such responsible BATF agents, who at one time seemed to have been predominant in the Agency, and still predominate in some areas, often either transfer out of the Agency, or are pushed out by a new breed of "swashbucklers" who have either never read the "Findings and Declaration" at the beginning of the Gun Control Act, or else they simply ignore both the intent of Congress and the Constitutional safeguards against police abuses.
A third major category of abuse consists of abuses in the enforcement of the Title II portion of the statute -chiefly fully automatic weapons and "destructive devices" such as bombs or large- bore cannons. One might suspect that, of all statutes, the Bureau would at least manage to enforce these provisions against radicals or organized crime. But even within this exotic field, the Bureau has managed to abuse its powers on a regular basis.
Shortly after the Gun Control Act went into effect, the head of the BATF office in Boston made headlines when he attempted to file charges against the City of Boston for not registering "destructive devices' with more than a half-inch bore: to wit, the 16-inch guns on the battleship Massachusetts, which had been made a city park. However, smaller cannons and deactivated machine guns (which the Congress recognized, but BATF refuses to) have been seized from American Legion halls and museums across the country -- including seven deactivated firearms seized by BATF from the NRA museum just last year, a case still in the courts.
In the case of David Moorhead, Title II charges were brought against a young man disabled in Vietnam, trained as a gunsmith by the Veterans Administration, and established in the firearms business with the help of a Small Business Administration loan. As an indication of Mr. Moorhead's respect for the law, he had turned in a BATF informant who had proposed an illegal transaction. The firearm which Moorhead owned, which BATF contended should have been registered as an automatic weapon, was not capable of automatic fire, for all automatic fire mechanisms had been removed, and the openings where they would have been fitted were welded shut. This made no difference to the Bureau, which nonetheless sought to imprison Mr. Moorhead for ten years. Fortunately, the federal judge in that case directed a verdict of acquittal (noting that this was the first time he had done so in his career on the bench) and apologized to Moorhead for the actions of the BATF agents.
Others victims of this type of entrapment were not so fortunate. In three cases, for example, the Bureau successfully contended that a "practice grenade" which is designed not to explode, but only to generate a small puff of smoke and a loud pop, constituted a "destructive device." The reasoning was that the casing, if filled to the brim with black powder, could be made to explode and that therefore any person who owned black powder for loading muskets and owned a practice grenade at the same time, owned "components" which could be assembled into a destructive device. Of course, the same thing could be done with an empty beer can and black powder. One of the victims of such a charge was sentenced to 16 years in a federal prison.
Such extremely broad interpretations of "destructive device' are made possible by provisions in the law which allow common components to be considered the same as an assembled device. These sections of the Gun Control Act were written in response to public concern about the use of "Molotov Cocktails" in the riots of the 1960's, and which consisted only of a bottle, gasoline, and a rag wick. Since any household contains such "components" for a destructive device, BATF can cite grounds for entering and searching any home in the United States -- or for arresting any citizen in his home or car.
There is no more classic case of BATF's using the law in such a fashion to cover improper activities than the raid upon the home of Kenyon Ballew in 1971. After raiding the wrong apartment, agents and the officers accompanying them using a daylight hours search warrant, burst into the Ballew home at 8:30 PM, unnecessarily using a battering ram to gain entry. Ballew, confronted by scruffily dressed, non-uniformed BATF agents and local officers his wife scantily clad and screaming for police grabbed a cap and ball revolver of antique design -- and was shot in the head and disabled for life. The BATF used the excessively broad provisions of the Gun Control Act to justify the raid, contending that although Ballew did not have the hand grenades they expected to find, he did have a practice grenade which could serve as a container for the black powder used in-his cap and ball revolver. Despite the outrageous abuses involved in the Kenyon Ballew raid, the BATF agent in charge was promoted shortly thereafter.
This was the first well-publicized example of the manner in which BATF operates. Little has changed since that time, despite numerous complaints from the firearms community and equally numerous promises of reforms from the government. No amount of promises, of cosmetic "reforms," can solve these serious problems.
If any other law enforcement agency were to behave as the BATF has behaved, American civil libertarians would be vociferously demanding changes in both the agency and in the law which makes its abuses possible. But because this agency is responsible for enforcement of federal gun control laws, and because most of the BATF's abuses are against gun owners, many civil libertarians are willing to adopt an attitude of selective civil rights. I submit, Mr. Chairman, that firearms owners did not give up their civil liberties as of the moment they purchased a firearm.
I further submit, Mr. Chairman, that the BATF has used funds made available by the Congress, after the approval of this Committee, to systematically abuse American citizens. I urge you to launch a full-scale investigation of the activities of the BATF, to publicize the results, and to call to the attention of your colleagues the sections of law which have allowed this agency to misuse the funds which the Congress has authorized.
With our limited access to the internal files of BATF, we have uncovered an institutionalized pattern of abusive behavior by the Bureau of Alcohol, Tobacco and Firearms; we have discovered a woeful lack of proper supervision, a lack of proper law enforcement, and a resultant awesome waste of the taxpayers' dollars. We have discovered outrageous destructions of the lives, livelihoods and well-being of countless respected, law-abiding citizens.
Only a fraction of our evidence can be presented during these hearings, but I urge you to fully explore the activities of this Agency, and offer the help and assistance of the National Rifle Association, and its members, who have most frequently been the victims of this rogue agency -- and the travesty of law under which they function.
[end of prepared statement]
Before I get into some questions, let me reiterate my reason for these hearings. The result of these hearings, for those that don't know, came from allegations presented to me by a number of Arizona constituents, some of whom are here today, also from members of your national organization, the National Rifle Association. It is their contention that the BATF has, in certain instances. exceeded its authority in enforcing the Gun Control Act of 1968. More importantly, these individuals claim that the BATF has evolved a pattern of violation of their right as American citizens to own and bear arms.
While the purpose of this hearing is to determine whether the allegations against the BATF have merit-and BATF will be given full opportunity at the end of the witnesses that you have suggested to respond-I would like to make it clear that this Senator is deeply concerned that any agency of the Federal Government might infringe upon any of our fundamental constitutional rights.
While I recognize that there is considerable controversy in this country over the issue of gun ownership and gun control, it should not be the implicit or explicit policy of any agency of the Federal Government to determine for itself that one constitutional right is less fundamental or less important than another. I believe that the Constitution gives every American the right to own and bear arms. That right is contained in the same document that guarantees our right to freedom of expression and due process of law. Consequently, it is the duty of every Federal agency-and especially law enforcement agencies to protect these rights.
Thus, if the hearings we are conducting this morning convince this subcommittee that indeed the BATF has engaged in a pattern of violation of the rights of gun owners, I will propose legislation to rectify the situation. If, however, the allegations prove to be isolated incidents of individual agents, I hope that the new leadership of the BATF will make the appropriate commitment to this subcommittee, to the public, and to the American people to insure that future incidents do not occur.
Let me also state at this point that I have considerable respect for the BATF. It is an organization which has served this Nation in one form or another for almost 200 years. On the whole, my experience with BATF agents while I was a county prosecutor was extremely positive. Thus, it is not my intention to denigrate the excellent work they have done in the enforcement area, outside of the incidents that will be brought out and have been referred to thus far. My purpose in conducting these hearings is to explore one limited area of BATF activity that has generated the present controversy. More importantly, I am hopeful that the net result of this morning's hearing will be a resolution of the existing difficulties.
My experience with the BATF has not been in the area you mentioned, Mr. Knox, of harassment, and that is what prompted these hearings. My experience with the BATF has been working along the border of the Southwest and effectively curtailing a large number of illegal guns that flow to the Republic of Mexico, violating their laws as well as those of the United States. But I realize that any law enforcement agency, whether it is State, county, city, and certainly a Federal agency, cannot go beyond the Constitution. And I am extremely fearful that based on the evidence that has been brought to my attention, the BATF has taken such action.
I hope that the testimony this morning will be adequate for this committee and for the Senate to form some policy to restrict not only the BATF, if necessary, but other Federal agencies, from exerting their unmandated authority, of violating constitutional rights to bear arms.
With that I will ask Senator McClure, who is with me today in them hearings, if he has any comments. He has been a leader in the protection of people's constitutional rights to bear arms.
Senator MCCLURE. Thank you very much, Senator DeConcini. First, let me thank you for calling these hearings, giving the people who are concerned the opportunity to be heard and focus on what I think has been a problem, and has been a growing problem. I appreciate the tone of your statement this morning. I think it might be well at the outset to identify a couple biases of my own.
First of all, I started out in law enforcement. My first job after I got out of law school was as a county attorney. I prosecuted a good many criminals in my life and worked with a good many law enforcement officials in doing that. I suspect in having started that way I start with a bias in favor of good, strict, tough, hard-nosed law enforcement. But at the same time that I have that beginning bias, I also have a very strong commitment to perhaps the most sacred rights guaranteed to us by the Constitution, which are those that provided-indeed, assure- protection from a repressive government.
The men who drafted our Constitution knew only too well what it meant to live under such a repressive rule, and thus took great pains to see that the same did not occur again. The Preamble of the Constitution itself states, among other things, that the Constitution was necessary in order to "secure the blessings of liberty to ourselves and our posterity * * *."
Not satisfied that such liberties were adequately specified in the original document, the constitutional authors also proposed-and the several States quickly ratified-the first 10 amendments to the Constitution we know as the Bill of Rights. Included among these rights are the right to keep and bear arms-amendment II-the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures-amendment IV-the right not to be deprived of life, liberty, or property without due process of law-amendment V-and the right of not having private property taken for public use without just compensation-amendment V.
As our population has grown and our society in general changed over the past 191 years since ratification of the Constitution, it has become easy to forget such basic civil liberties. Yet, as representatives of the people, it seems to me to be one of the basic duties of government to continually remind the citizenry that these liberties do exist and should in fact be exercised. Moreover, it is the responsibility of government to vehemently defend these liberties for each and every citizen, regardless of the cost.
When this is not done, then the Government of this great Nation will itself be responsible for destroying the very foundation on which it was established. I have prefaced my opening remarks in this way because of the deep fears I hold that these rights-these sacred rights-are maliciously being breached on a nationwide basis by the governmental organization we know as the Bureau of Alcohol, Tobacco and Firearms. Given the responsibility of enforcing the Federal laws governing these three items, overwhelming information has been brought to my attention over the past several months which indicates that, rather than concentrating on finding and stopping the lawbreakers that pose a real threat to our society, the BATF has lately taken to utilizing self-made regulations, vague statutes, and a little old-fashioned entrapment in converting law- abiding citizens into criminals.
This information includes reports of innocent citizens being threatened, abused, arrested, and even wrongfully beaten by BATF agents. It includes reports of valuable gun collections being seized, purposefully damaged or destroyed, and never returned to the rightful owner, even though convictions-or even initial prosecutions-were never obtained. I might add that the information in my possession includes everything from citizen's testimony sworn under oath to BATF's own documents retrieved through the Freedom of Information Act.
Although it is not necessary to delve into particular cases at this time, it may be useful to pursue for a moment the intent of the Gun Control Act of 1968. From its very inception, Congress purposefully granted very limited authority under the act. It was not intended to impose a comprehensive national system, but rather to permit the details on who should own a firearm and under what conditions to be left to the State and local authorities. The primary purpose was to prohibit mail order sales, which was done, but which requires almost no persons for enforcement since violation is inherently obvious, as by distributing catalogs or running advertisements, and thus there is virtually no violation.
A secondary purpose was to limit interstate transfers which might used to evade local laws. But the potential for bona fide enforcement at the Federal level is almost nonexistent here. The BATF's own study-CUE-showed that most of the firearms traveling interstate were not being shipped as part of any organized criminal black market. Rather, they traveled because an individual might have bought one when he lived in Florida and 5 years later moved to New York, taking it with him. The study found that very few of the firearms which moved interstate did so by passing through any manner of illegal market.
Thus, there is little room for Federal enforcement here. The act also made it a Federal law offense for certain categories of persons- chiefly convicted felons-to purchase a firearm, but this is already illegal under the laws of every State, and the BATF has, for this reason, refused to prosecute any but the most aggravated felons in possession cases. Thus, we really have a law with very little potential for Federal enforcement.
Yet, it is my understanding that the BATF now has approximately 1,500 agents devoted to criminal firearms enforcement which leads me to wonder if the BATF, rather than rid the Nation of dangerous criminals, has a pressing need to fabricate cases in order to expand its own size. I might add that the BATF, like so many other governmental agencies, seems like a living organism-it will likely never consciously permit itself to be reduced or killed off, but will seek to grow and expand its jurisdiction.
The charges leveled at the BATF, many of which are extremely serious, have mounted to the point that Congress can no longer avoid the issue. It is of dire importance that we once and for all wade deeply into the matter and sort out the fact, and, where necessary, take swift and meaningful measures to remedy the situation. It is not likely we will get all the answers today or tomorrow, and I, for one, intend to keep digging until the whole truth is exposed for all to see.
As I mentioned earlier, we are dealing here with the most sacred of civil liberties granted-or perhaps I should say guaranteed-by our Constitution. These must, at all costs, be protected. Thank you, Mr. Chairman.
Senator DECONCINI. Thank you, Senator McClure. I want to thank you also for the assistance of your staff in helping us prepare the witness list. We noticed in the attempts to put this together a great reluctance on the part of a number of witnesses to come and testify. I want to thank the National Rifle Association for its assistance in this matter. I am not in a position, as I was as a county prosecutor, to give anyone immunity for any statements they may make. But I can assure those who will testify today that if, in fact, they feel that any harassment is developed as a result of their testimony, that there will be at least one strong voice-and I am sure Senator McClure and others will join-in exerting whatever pressure is necessary to see the individuals who have taken time and courage to testify today on specific allegations of abuse by BATF are not harassed or bothered. At this time we will commence with the individual witnesses. Mr. Knox, if you care to stay, we are pleased to have you there, whatever your feelings are. Do your colleagues care to make any statement at this time?
Mr. KNOX. Neither of them have a comment to make, Senator. I appreciate very much the comments of each of you. I will be in the audience, I don't see any sense in my staying at the table. I will be glad to answer any questions.
Senator DECONCINI. We may ask you questions after we listen to the witnesses.
Senator MCCLURE. I do have a couple questions I would like to ask of Mr. Acree. He has made no statement here this morning, but I know of the background and study that he conducted. Mr. Acree, have you given for the record anything of your background?
Mr. ACREE. No. Mr. Knox, in introducing me to the committee, did mention I am a retired U.S. Commissioner of Customs. After 40 years of Federal service, I retired in May of 1977, some 25 of which were as Assistant Commissioner, Division Director, as a career employee. In that sense, I was depicted as a dean of Treasury law enforcement at the time of my voluntary retirement in May of 1977.
I did enter into a contractual arrangement with the National Rifle Association in May of 1978, to make for them what they requested be an impartial, objective, unbiased analysis of a substantial number of investigative cases, both open and closed, in several Federal judicial districts, both at the district court level and U. S. magistrates' offices in those jurisdictions. I have supplied that data through the National Rifle Association.
Senator MCCLURE. Where were those studies conducted, in what States?
Mr. ACREE. In the district of Maryland, in Baltimore; in the eastern district of Virginia, located in the Alexandria, Richmond office, Norfolk offices, and in the western district of Virginia, located in Roanoke and one or two other locations in the western part of that particular State. In addition, we have also documented in investigative procedure specific cases of allegations that have been brought to the attention of the National Rifle Association. to interview people, to learn from them exactly, precisely what had happened in the circumstances that they were alleging abuse, improper handling, or having been harassed by agents at Alcohol, Tobacco and Firearms.
Senator MCCLURE. Mr. Acree, in 40 years of work with Customs, IRS, and dealing in these areas of law enforcement, I assume you have had occasion to be in contact with organized crime, purposeful criminals, innocent victim innocent persons caught up in an unwitting violation of law.
Mr. ACREE. Senator, in my career I guess I have covered the entire gamut you have mentioned, plus a few others I can think of.
Senator MCCLURE. You learned somehow in that process to get a feel for the kind of people you have dealt with: whether these people intended to violate the law, whether they are trying to get away with something, whether they knew and were purposeful in their actions, or whether they unwitting or innocent, do you not?
Mr. ACREE. Yes sir; you do.
Senator MCCLURE. In your examination of the kinds of cases prosecuted in these Maryland and Virginia areas that you refer to, what was your finding with respect to the kind of people that had become involved in the BATF prosecutions?
Mr. ACREE. Senator, I don't have my statistical data immediately available. I didn't anticipate providing with the level of specificity I would like. However, based on my recollection of the hundreds of cases that we reviewed in the jurisdictions and points I mentioned, I would say that, conservatively, 75 to 80 percent of those cases were individuals that, in my judgment, would not have fallen into the hands of the law, so to speak, had they not been enticed, inveigled, encouraged to violate some provision of law with which I am personally satisfied they were totally unfamiliar with. I found, in the main, those individuals were blue-collar workers, truck drivers, farmers, individuals that simply were not sophisticated enough to understand the technicalities of the Gun Control Act and how they may unwittingly cross the line in terms of unwittingly violating a provision of the statute, as I said, concerning which they had absolutely no idea whatsoever.
Senator MCCLURE. Mr. Acree, a very familiar problem in law enforcement is getting evidence on what law enforcement officers come to believe to be criminals or people involved in criminal activity. You know it is happening, but you don't have proof or you don't have proof that is good enough to take to court. In the search for good evidence, oftentimes you try to construct something that you can track through so that you then have evidence that you can present in court that will stand up. There is a fine line that is drawn by the courts and by appropriate good law enforcement, between creating those circumstances, conducting that surveillance and what the law calls entrapment, where you create the crime, induce the crime in order to be able to prosecute the criminal. The courts throw out entrapment cases, do they not?
Mr. ACREE. Yes; they do.
Senator MCCLURE. But there is a very close margin sometimes between what Mr. Knox has described as the so-called straw man case and the entrapment case. You indicate that the great majority of these people were people who would not normally have fallen into the clutches of the law. I think Mr. Knox used the term they were "inveigled" into actions which were technical violations of the law so they could be prosecuted. Is that the pattern you found in your investigation ?
Mr. ACREE. That was substantially the pattern I found during the caw analyses that we conducted, Senator McClure; yes.
Senator MCCLURE. I am concerned, because I have not had the opportunity in my work to work with BATF, as Senator DeConcini did in Arizona. But I have worked with a lot of law enforcement agencies-local State, and Federal-and I have had almost a high regard for 99 percent of the people with whom I worked. I was proud to be associated with them and wanted to assist them in the work that they were doing, because I believe too in what they were doing. The thing that has concerned me in what I see emerging in the area of enforcement of the 1968 Gun Control Act by the Bureau of Alcohol, Tobacco and Firearms is something I am, very frankly, not proud of.
Do you have any feeling as a long-time law enforcement official, Of what these actions are? Do they characterize good law enforcement?
Mr. ACREE. Let me preface my answer, Senator, to clarify further my role in the hearing and certainly your area of interest. I am currently vice chairman of one of the Nation's largest security service companies. We are a nationwide operation. I use as the kinds of individuals that support my activities in the company primarily Federal investigative retirees from the Federal law enforcement community-FBI, Treasury agents. et cetera. I utilized some of these people to conduct the case-by-case analysis and investigations for me in this project. I did not do personally do all of that. I did review and analyze their results.
In direct response to your question, Senator, my reaction-and let me further preface this. In discussing some of these things with some of my friends in ATF-and after having been in the Treasury agency as long as I was, I have a lot of ATF people as my friends-I do find, however, an attitude which I tend to label an oversimplistic view of these proceedings, an attitude of NRA versus BATF. I am not involved in that. I just don't believe that the role that I have played for ATF gets into any philosophical ideas as to gun control, gun ownership-they are the bad guys and we are the good guys, white hat, black hat; et cetera.
My role again has been one of total objectivity, to carefully review, case by case, document by document, the record data available in these Federal jurisdictions of which I spoke. And based on that analysis and based on the comment of any retired associates from the Federal enforcement community that worked with me on that job, again on the contractual basis for NRA, it is our total opinion that there is much wrong in an institutional way in ATF, that the pattern of activity of investigative tactic, investigative procedure, the manner in which they have gone about making their case literally smacks of a statistical rat race kind of operation. We spoke a bit ago as to entrapment I can't get into each individual case as to what that fine line was.
On the other hand, if you are faced-and ATF would obviously respond where some of these people plead guilty, they did-but they were faced with a multiple-count indictment I am talking about 36, 40, 50 counts of technical violations of the statute, so overwhelming to a man who drives a truck or pumps gas for a living, an economic situation they simply couldn't afford the kind of legal help and pay for attorneys that would take those cases to trial. In some instances we found they did go to trial and were acquitted; in other cases they did plead guilty, were given a suspended sentence.
ATF had the number, 40 weapons seized, or whatever the case. I found that to be a pattern which, frankly, was very disturbing to me. I like to picture myself a professional in the enforcement field. I don't think you will find anyone in this room or in the Federal enforcement community that would believe that I would do anything other than firmly, forcefully, but properly enforce the laws enacted by the Congress of the United States
Senator MCCLURE. Thank you very much.Thank you, Mr. Chairman.
Senator DECONCINI. Thank you very much, gentlemen. We appreciate your testimony. I do just want to ask one quick question, Mr. Knox. You make reference to the straw man sale, I think, in your opinion, one of the most abusive areas of BATF. Do you have any general numbers. not actual cases. but complaints from your members or nonmembers of how many of these you have received?
Mr. KNOX. Frankly, Senator, I don't have a number. It is something that we encounter frequently; but the actual number I don't know.
Senator DECONCINI. Is it the biggest complaint from your members or from the public that you receive regarding abuses?
Mr. KNOX. No; I wouldn't say that it is the biggest. The biggest complaint concerns "engaging in the business" definition.
Senator DECONCINI. What is the business?
Mr. KNOX. That is something that I have been involved in personally since about 1964, trying to get a definition. That is our biggest complaint. The straw man-I have talked to people, and I can't give you a specific cite, but I have talked to people who have had the charge made against them for having sold to an illegal buyer, through the straw man who, when the transfer was made by the ATF agent was not necessarily even within sight and hearing of the person. He never knew it happened. It might happen on a parking lot. This is a rare instance. I think what actually happened here, there were a few cases where it was a bona fide effort to circumvent the law for criminal purposes, and maybe a guy from New York State wanted to take some guns back to New York, couldn't make a legal buy, so he would have someone buy.
Senator DECONCINI. Of course, you have no objection to that enforcement.
Mr. KNOX. That is correct. But it works so well that BATF then said, "Gee whiz, look how many we can go out there and bust" and there they go. I have been told by people who know-and I think Jim mentioned this-that BATF had a brownie point system, if you will, that the most brownie points you could get from your boss was to talk someone into giving up his license. Where in the law does it say, "We don't want people to be licensed"? But that is the attitude they have of eliminating the dealer. Then they scream because there are no records, we don't have enough dealers. I don't understand the way they go about it.
Senator DECONCINI. Thank you, Mr. Knox. We appreciate your testimony, gentlemen.
NEW HAMPSHIRE GUNSMITH
STATEMENT OF DAVID A. MOORHEAD ACCOMPANIED BY JANET MOORHEAD
Senator DECONCINI. Our first witness this morning is an individual named Mr. Moorhead. Let me ask the witnesses to come forward and please identify themselves, set forth whatever statement they want to be as specific as they can in relation to the problems they have had with BATF. We do have some time constraints. We do want to hear from every witness, as well as to give BATF an opportunity to respond.
Mr. Moorhead, we welcome you to the committee this morning. If you will tell us where you are from and what business you are in, and please proceed in any way you like.
Mr. MOORHEAD. I am David Allen Moorhead. I used to have a shop and stuff at the time. I was a gunsmith at the time these things happened to me. But because of what happened to me, I had to get out of the business. I could no longer stand the harassment and things to be. This was rehabilitation, because I am a totally disabled veteran from Vietnam. I started out on December 7, 1970, in the VA rehabilitation program to be a gunsmith. because the VA gave me a test and said I had the aptitude to be a gunsmith. New Hampshire is a very big hunting and fishing area and there were very few gunsmiths. It was a job I could do in my home, or have a business alongside my home so if I needed to go lie down and rest because of my condition, I could do this. What I am not saying is, while I was in Vietnam at the time of the Tet offensive, I had eight bullets go through me and was hit by a shrapnel grenade. They keep listing me as a paraplegic. But I told a full colonel I would be damned if I would stay in a wheelchair, and I walk today.
Senator DECONCINI. Good for you.
Mr. MOORHEAD. Just before I was arrested, I had an undercover agent-we call them a snitch-come in and try to buy firearms from me without Federal paperwork, which is a form you have to fill out every time a gun is sold. He said, "By the way, Dave, you don't happen to have a small, automatic handgun, or something like that that we could get, you know what I mean, with paperwork," which I kind of put him off with some answer that kind of pleased him. When he left, I reported him to the local ATF agents in Concord.
Senator DECONCINI. This was the undercover agent?
Mr. MOORHEAD. Right. Of course, I didn't know he was an undercover agent until afterward.
Senator DECONCINI. Sure.
Mr. MOORHEAD. At which time he saw my M-14 rifle which I had obtained through some good old Yankee trading. I traded a cannon for a nice weapon I learned to fire and was taught by the Army to use. It was a rifle. Anything I had ever read, the Army manual on repair, any literature I had referred to it as a rifle. I never knew it was a machinegun. I never saw it fire fully automatic in the service.
Senator DECONCINI. Was it a collector's item as far as you were concerned?
Mr. MOORHEAD. Oh, yes; definitely. It was like the guys that came home from World War II with .30-caliber carbines; this was what they used in the service.
Senator DECONCINI. Is this what you used in the service?
Mr. MOORHEAD. I trained on it, and I did carry it for a while, the M-14.
Senator DECONCINI. The same type of gun?
Mr. MOORHEAD. Oh, yes; definitely. So a short while later this same man came back with a buddy of his, who he said is a collector of firearms, military. I wanted to show it to him, but I couldn't because my wife had painted the floor and we couldn't get to it. On November 12 they came to my door in the morning with the local sheriff of Grafton County, who is a disabled veteran himself, and they shoved him to one side and came in through my door and said they had a warrant.
Senator DECONCINI. They broke down the door?
Mr. MOORHEAD. No; they pushed it open and pushed him to one side. He only has half a leg on one side. They pushed him right to one side. They came in and said they had a warrant for my arrest because I was secretly possessing a machinegun. It kind of confused me. I never knew I had a machinegun, and any guns I had I never knew I secretly possessed. I even used my guns to get loans from the bank.
Senator DECONCINI. Where was it? Was it on the counter or on the wall?
Mr. MOORHEAD. This particular weapon, because it was mine and stuff, and I didn't want people handling it, I would keep in my personal gun cabinet in my home, which was right next to my business. So when I saw what they wanted, I voluntarily surrendered the M-14. They continued searching after the scope of the search warrant had been executed and found a 37mm flare gun, which is exempt from law even by their own definition. I said, "Why are you taking that?" He said, "Well, we are not sure." I said, "What do you mean you are not sure?" He said, "Well, there are so many laws we can't be expected to know them all." I said, "You expect me to know them all?" He told me ignorance of the law is no excuse. They hauled me off to Concord in handcuffs. I said, "Why are you handcuffing me?" They said that was policy, so I wouldn't jump out of the car at 60 miles an hour. They told my wife-my wife wanted to go along because I was subject to having muscle seizures at the time. My wife made me take some Valium before I left the house. They told her if she did not stay and open the shop so they could ransack it, she would get 5 years or $5,000 fine, or both, for not staying.
Senator DECONCINI. One of the agents said that?
Mrs. MOORHEAD. The agent James Carolitus told me that.
Senator DECONCINI. Thank you.
Mr. MOORHEAD. They hauled me off to Concord. As far as I know, they did not have an indictment against me; they just arrested me. The indictment came afterward. They put me in a holding cell, and finally they gave me bail at $10,000 PR, because I had no kind of criminal record whatsoever. I abide by the law. I just don't believe in breaking the laws of our land; it is just too great to mess it up.
Then I finally got a ride home. Things progressed, and when we got into court-we found that we started into a court proceedings-the undercover agent, Tom Seno, I believe, he got on the witness stand and testified that he could see me enter the front door from inside my shop, and when we produced photographs in evidence that you could not physically do this unless you were Superman, he changed his story on the witness stand to the Federal judge and jury, and switched it around and back-paddled, and a whole bunch of other things.
Then we went on. As a final result, I had a directed verdict of acquittal by Judge Bownes, which is something he had never done in the entire time he had been sitting on a State or Federal bench. I have a copy of the last 15 minutes of the trial, where a Federal judge apologizes to me for this happening to me.
Mrs. MOORHEAD. Before he made his final statement during a bench conference he said he was upset; he was very upset; it was a travesty.
Senator DECONCINI. I would like to have that in the record if you have no objection.
Mrs. MOORHEAD. Since this, Judge Bownes is now on the First District Court of Appeals. He has been elevated Senator DECONCINI. I know the judge. I have had him testify before the Judiciary Committee.
Mrs. MOORHEAD. A lot of people think we have a big gun for a lawyer. We had a court-appointed lawyer, and it was his first case in Federal court.
Senator DECONCINI. How much did it cost?
Mr. MOORHEAD. Nothing; the court took care of it. I didn't have enough money. I was just getting started in business.
Senator DECONCINI. When you were arrested, did they read you your Miranda rights?
Mr. MOORHEAD. Yes; they did. They proceeded right in doing all that kind of stuff.
Senator DECONCINI. Were they abusive to you in language and attitude?
Mrs. MOORHEAD. Very sarcastic.
Mr. MOORHEAD. Kind of sarcastic in their talk and stuff like this-I was just a country hick and I shouldn't be doing this and that. They handcuffed my hands behind me, and I had just cut up my hand with a chainsaw. One of the agents-I believe his name was Dwyer-he says, "No, he has hurt his hand; we will put them on in front" They changed them from behind. They really clamped them on. They left a mark on my arm that took a couple of days to clear up.
Senator DECONCINI. You had no previous arrest?
Mr. MOORHEAD. No, sir; never. In fact I got a good conduct service medal after a year, 8 months in the service.
Senator DECONCINI. When you reported the first incident of the undercover agent who I understand you did not know to be a BATF agent, do you remember who you reported it to?
Mr. MOORHEAD. Yes, I called down-I don't remember the agents name-but I called to the Concord office of the Bureau of AlcohoL Tobacco and Firearms in New Hampshire.
Mrs. MOORHEAD. The local agent, Ken Drickser, wasn't there. After the trial was over, he came to the house and sat down and had a cup of coffee and started discussing how did this ever happen. He said during the initial undercover work around the State, they said there was a machinegun at Moorhead Sport Shop.
He said-this is what he told us-"If there is one in Moorhead Sport Shop, it is because he doesn't know it is one. Leave it alone and I will take care of it when I get back from vacation." He said that Dave Moorhead was the type of person who got tears in his eyes when he raised the American flag. I blame it on the arrogance of the agents out of Boston. If they had left things in the hands of the local agents who know the people
Senator DECONCINI. It wouldn't have happened.
Mrs. MOORHEAD. No. As far as we can find out, they never checked him out at all with any of the local law enforcement. In fact, the sheriff of Grafton County, Herbert Ash, said he was called that morning-he stopped the night of the arrest, he stopped at our house and talked to us-that he was called and told to be at the Toby Motor Court because there was an arrest to be made in Grafton County. It wasn't until he got there that he knew who they were arresting. He ended up going to court as Dave's chief character witness.
Senator DECONCINI. Did you ever receive any apology from BATF?
Mr. MOORHEAD. No; never from the BATF.
Senator DECONCINI. Only from the Federal judge?
Mr. MOORHEAD. Only from the Federal judge, which is in the last 15 minutes.
Senator DECONCINI. I would like to have that submitted for the record.
[The information follows:]
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
- - - - - - - - - - - - -
United States of America
vs. Criminal No. 76-4
David Allen Moorhead
- - - - - - - - - - - - -
Concord, New Hampshire
April 8, 1976
Thursday
EXCERPTS FROM JURY TRIAL
BEFORE: The Honorable Hugh H. Bownes, U. S. District Judge, and a jury.
Appearances: Robert A. Schwartz, Esq., for the United States of America. Philip T. McLaughlin, Esq., for the defendant.
MR. MCLAUGHLIN: The defense rests, Your Honor. THE COURT: Any rebuttal evidence, Mr. Schwartz? MR. SCHWARTZ: Can I have five seconds, Your Honor, and I will decide it. THE COURT: Yes.
(Whereupon, Mr. Schwartz left the courtroom and returned.)
MR. SCHWARTZ: No further evidence, Your Honor. THE COURT: Mr. McLaughlin, is there anything? MR. MCLAUGHLIN: No, I haven't, Your Honor, thank you. By "anything," sir, you mean --
THE COURT: Any motions or anything you want to bring at this time? MR. MCLAUGHLIN: Motions, yes, sir. I would appreciate it if we could approach the sidebar. THE COURT: All right. (Bench conference, with the Reporter presented, THE COURT: I think this is a travesty. I am upset. I am really upset. Go ahead. MR. MCLAUGHLIN: Your Honor, my motion at this time in behalf of the defendant would be to dismiss the count against him on the ground that at least the Federal Government has not proven beyond a reasonable doubt that Mr. Moorhead possessed a machine gun, and on the further ground that in the hands of Mr. Moorhead this was not a machine gun nor a weapon which could be readily converted to be a machine gun, and that the government has failed to prove beyond a reasonable doubt the requisites under the statute setting forth the requirements of the machine gun in order to satisfy the statutory definition of the crime. Now, Your Honor -- off the record. (Discussion off the record. (End of bench conference.) THE COURT: Well, I am going to do something that I haven't done since I have been a Federal Judge, or a State Judge, for that matter. I am going to take a case away from the jury after the evidence is all closed. And I don't do this because I don't have any confidence in you, Madam Foreman and ladies and gentlemen, but I do it because I think the circumstances require it and the law requires it.
I am dismissing the indictment, and I am dismissing it on two grounds. I am dismissing it on the grounds that I don't think there is evidence from which the jury could find beyond a reasonable doubt that this was a machine gun as defined in the statute. I am also dismissing it on the further grounds that there is no evidence from which the government has shown at all that the defendant knew or reasonably should have known that this weapon was or could be converted into a machine gun.
And I think that this was a vital element in this case as the facts have been disclosed. I think it is a vital element under the law, and I think if I were to interpret the law otherwise under the facts of this case it would be a violation of the defendant's constitutional rights. And I further think that the element of intent to possess a machine gun is a necessary element of the crime in this case in the way that the indictment has been drawn. So I am dismissing the indictment on those grounds.
And I want to say to you, Mr. Moorhead, that, on behalf of the government, I apologize. I don't think this case should have been brought. At most, we have here a technical violation. And now this man has lost his license as a result of the indictment. And, Mr. McLaughlin, I am informing you that I want you to try immediately to get his license back.
I am upset by the case. This is the first time that it has happened. And I think that, on behalf of the law enforcement officials in this case, they should have used some common sense and a little compassion and taken all the facts into consideration. Madam Forewoman, ladies and gentlemen, in a way, I a[illegible] because I have overlooked you. Believe me, I have overlooked you only because I did what I thought justice required under the circumstances. You are dismissed. Have a nice weekend. We will get in touch with you again.
(Whereupon, at 3:15 o'clock, P.M., the hearing in the aforementioned matter came to an end.) I hereby certify that the foregoing is a true and correct transcript of my stenographic notes in the aforementioned matter.
[signed] Court Reporter
Mrs. MOORHEAD. Also, they did confiscate guns out of the storage, but they never charged him.
Senator DECONCINI. Did they return all of the weapons?
Mrs. MOORHEAD. They were taking their own good time. It wasn't until Congressman James Cleveland helped.
Senator DECONCINI. Did you go out of business as a result of this?
Mr. MOORHEAD. Yes; it ceased to be a rehabilitation at that point while I had to keep going over to the VA hospital to get nerve pills and things, because I just couldn't function. I was just totally-it was just a total daze. You couldn't believe this kind of stuff was going on. Because I couldn't function, because they had taken my license and my records and stuff like this, I couldn't pay my bills, and because I couldn't pay my bills, people were demanding money. So I finally had my business auctioned off to pay my debts, which didn't clear up everything, and I have since paid for and cleared up my debts by selling my home and business and getting this taken care of.
Senator DECONCINI. Are you in business now?
Mr. MOORHEAD. No, sir; I am not.
Senator DECONCINI. I have no further questions.
Senator MCCLURE. First of all, you are a veteran. I think you have some service decorations
Mr. MOORHEAD. Yes, sir.
Senator MCCLURE. Would you tell us what those decorations are for?
Mr. MOORHEAD. I have an expert medal in shooting the M-14, M-16-R, and M-16 machinegun. I have a national defense ribbon, which everybody gets, I have a Vietnam campaign, Vietnam service medal. I have a purple heart. I have a good conduct ribbon, and then I have a CIB-combat infantry badge.
Senator McCLURE. Mr. Chairman, this will be made a matter of record. I have a copy of that court transcript. I think there may be some value in taking just a minute to read that as well as placing it in the record.
The court said, "I think this is a travesty. I am upset. I am really upset. Go ahead." Then your attorney, Mr. McLaughlin, made a motion for dismissal, and the judge said at the end, "Well, I am going to do something that I haven't done since I have been a Federal judge, or a State judge, for that matter. I am going to take a case away from the jury after the evidence is all closed. And I don't do this because I don't have any confidence in you, Madam Foreman and ladies and gentlemen, but I do it because I think the circumstances require it and the law requires it.
"I am dismissing the indictment and I am dismissing it on two grounds. I am dismissing it on the grounds that I don't think there is evidence from which the jury could find beyond a reasonable doubt that this was a machinegun as defined in the statute. I am also dismissing it on the further grounds that there is no evidence from which the Government has shown at all that the defendant knew or should have known that this weapon was or could be converted into a machine gun. And I think that this was a vital element in this case as the facts have been disclosed. I think it is a vital element under the law, and I think if I were to interpret the law otherwise under the facts of this case it would be a violation of the defendant's constitutional lights. And I further think that the element of intent to possess a machinegun is a necessary element of the crime in this case in the way that the indictment has been drawn. So I am dismissing the indictment on those grounds.
"And I want to say to you, Mr. Moorhead, that on behalf of the Government, I apologize. I don't think this case should have been brought. At most, we have here a technical violation. And now this man has lost his license as a result of the indictment. And, Mr. McLaughlin, I am informing you that I want you to try immediately to get his license back.
"I am upset by the case. This is the first time that it has happened. And I think that, on behalf of the law enforcement officials in this case, they should have used some common-sense and a little compassion and taken all the facts into consideration." Mr. Chairman, I will make that entire portion of the transcript a part of the record.
Senator DECONCINI. Without objection.
Mr. MOORHEAD. When they raided my shop after they took me, they confiscated over 100 firearms, a lot of them .22 guns that I stored and cleaned for the winter for the Boy Scouts of America camp. I had records on these, and I kept my records. My wife did not know where they were kept in the file drawers and staff. Because I was in Concord and she couldn't find my records, they confiscated these firearms and they would not return them until a phone call. In actuality, Congressman Cleveland had to go and see Rex Davis personally and told them he wanted those firearms returned. I don't know what happened. A day after that, an Army truck pulled up and unloaded them, except for my M-14, which they are now saying was a stolen weapon and they will not return It.
Mrs. MOORHEAD. That was administratively forfeited before the trial. We didn't have $250.
Senator MCCLURE. And your license was revoked?
Mr. MOORHEAD. They had lifted it while I was under indictment and stuff like that. So when the trial was over and stuff like this, I could have gotten it again. But I was financially broke to try to trade credit. They raided me during the hunting season, and I had gotten all my stock in and I had an outlay of thousands of dollars of merchandise to pay. And I couldn't pay for it because you can't eat the stuff.
Senator MCCLURE. I might just state for the record, it is my understanding that some models of the M-14 can be fired on full automatic; some cannot. And it is my opinion of the law-and apparently BATF doesn't share that opinion-if it has been converted so it cannot fire, they still hold it as a machinegun, because it could be converted into a machinegun.
Mr. MOORHEAD. If you have a trigger assembly to a machinegun, you can be arrested for having a machinegun.
Senator MCCLURE. i have nothing further.
Senator DECONCINI. I want to thank you very much. Let me reiterate: if you are bothered by any law enforcement agency as a result of this testimony-and I know you have an astute Congressman who has helped but-this committee wants to know. Your testimony today has been very courageous. I join with the judge in apologizing to you.
Mr. MOORHEAD. Thank you. I would also like to say at the time I was arrested, I was not the only one that they took. They took in quite a few.
Senator DECONCINI. At the same time?
Mr. MOORHEAD. At the same time.
Senator DECONCINI. How many?
Mr. MOORHEAD. I think it was around 9, 14.
Senator DECONCINI. Were they gun dealers?
Mr. MOORHEAD. Dealers and collectors. And I think they had in this entire raid, I think they had two convictions, which I think, if I remember the facts correctly, both men pleaded guilty, because one was too old and had a bad heart condition, he couldn't handle a court trial. I don't remember the other one. All the rest were thrown out of court or acquitted.
Senator MCCLURE. Mr. Moorhead, do you have copies of newspaper articles concerning your arrest?
Mr. MOORHEAD. Yes.
Senator MCCLURE. I wonder if you could provide copies of that and we could place them in the record or on file.
Senator DECONCINI. We will be glad to make a copy of that and return it to you.
[The articles follow:]
ILLEGAL GUN SALES CHARGED
POLICE OFFICER AT HILLSBOROUGH AMONG ACCUSED
BOSTON (UPI)-Fourteen Persons were arrested in four New England States yesterday by Treasury Department Alcohol, Tobacco and Firearms investigators for illegally selling scores of guns to undercover agents.
Bradley Clark. 35, a Hillsborough, N.H., policeman, was arrested on a charge that he illegally sold a .45 caliber Thompson submachinegun. Twelve of the arrested were federally licensed firearms dealers.
ATF Special Agent in Charge Arthur A. Montuori said the early morning raids in Connecticut, Massachusetts, New Hampshire, and Rhode Island "are significantly the largest in New England affecting licensed dealers since passage of the Gun Control Act of 1968."
In addition to Clark, those arrested in New Hampshire included: David A. Moorehead, 28, Wentworth; Walter R. Vedock, Jr., 27, Ayer, Mass.; Howard P. Bottomly, 55, Hillsborough; David E Baxter, 48, Manchester; Donald J. Kenney, 33, Hudson; and William J. Wilbur, 42, North Concord, N.H.
The ATF spokesman said one other New Hampshire resident was to have been arrested later in the day. Also, agents were to deliver a summons to Wilbur's wife, Donna, 36. The spokesman added that agents confiscated more than 100 unrecorded guns, including a machinegun, when they audited Moorehead's shop. "Further arrests throughout New England can be expected within the next few days as a result of continuing investigation," Montuori said.
Montuori said "scores" of used rifles, shotguns, machineguns, and handguns were purchased "off the books" by ATF agents during the 10-month investigation. He said one of the weapons were reported stolen. Dealers are required under the 1968 act to record all purchases and sales of guns that go through their shops.
Off the books sales are those that go unrecorded, thus making the gun untraceable. Most of those arrested face multiple charges and penalties ranging from $5,000 and 5 years in prison to $10,000 and 10 years in prison. All were arraigned before Federal magistrates in New Haven, Conn; Concord, N.H.; Boston; and Providence, R.I.
An ATF spokesman said more than 100 other weapons were confiscated by agents who audited the books and inventories of the arrested dealers. The weapons had not been entered into the dealers' records. Barry H. Kolbert, 42, Oxford, Conn, was arraigned in U.S. District Court in New Haven. Arrested in Massachusetts were Steven H. Kamins, 35, Lynn; Audrey K. Wornham, 68, and Alfred R. Straitiff, 31, both of Townsend. Wornham and Straitiff were arrested in separate incidents. Those arrested in Rhode Island were Gabriel S. Nunes, Jr., 46, Middletown; and Paul F. Frederick, 52, East Providence. All of those except for Clark and Vedock are licensed gun dealers.
GUN DEALERS FIGHT BACK
FED RAIDERS ACCUSED OF DIRTY TRICKS IN NEW HAMPSHIRE
By JOHN HARRIGAN
Sunday News Staff
Several persons arrested in headline-grabbing "gun raids" by Federal agents this week have told the Sunday News they believe they are the victims of "trumped-up charges" as part of a campaign to reduce the number of gun dealers and win favor for gun control legislation.
Others arrested in the widely publicized dragnet say they were harassed, intimidated, ridiculed and shackled like common criminals at the time of their arrests.
"It was incredible-like something out of Nazi Germany." said one Vietnam veteran paraplegic, David Moorehead, 28, who was arrested and handcuffed in his Wentworth gun shop. Another of those arrested for allegedly selling guns under the counter told the Sunday News he finally gave in and made a sale to an undercover agent "because I had been told on two previous occasions if I didn't do it, a carload of thugs would come up from Roxbury to visit me. I refused a couple of times before, but I've got a family to think about.
Others who were arrested in New Hampshire wouldn't comment publicly, saying they feared their telephones were bugged or that their attorneys had advised against comment. But many of those contacted said they were arrested for minor violations which have in the past been overlooked by agents sympathetic with the amount of paperwork required of gun dealers.
The raids were conducted in four northeast States by Alcohol. Tobacco and Firearms agents and resulted in the arrests and the confiscation of more than 250 firearms. Agents called it the most widespread raid since the enactment of the 1968 gun laws. "You have to ask yourself why they decided to make this sweep all of a sudden," said one mystified gun dealer. "Most of these charges are dotting-the-'I's and crossing the-'T's stuff. Gerald Ford has said publicly he wants to reduce the number of dealers. Maybe this is the way they're going to do it."
The most emotional outburst came from Moorehead who close to tears, described how Alcohol, Tobacco and Firearms agents came to his shop while he was away and "tore my shop apart and intimidated my wife." Moorehead, who was wounded by nine bullets, a phosphorous grenade, and shrapnel during the 1968 Tet offensive and is totally disabled, said the Government encouraged him to go into the gun business as part of his rehabilitation and said he has always done his best to keep up with the voluminous paperwork required by the Government The charges against Moorehead: "secreting" an illegal M- 14 described by agents as "a machinegun," even though Moorehead says it had been altered to a semiautomatic, has been on open display, and has been seen by local police and State troopers; and having 100 "unrecorded" guns on hand-guns Moorehead and his wife say they were keeping in safe storage for local camp owners who didn't want to leave them unguarded in camps over the winter.
When the agents came, said Moorehead, his wife couldn't quickly find the book in which the camp guns were listed for storage. The guns were confiscated, along with the M-14 Moorehead said agents had seen at least twice before but hadn't complained about. Moorehead's wife found the book later.
Senator McCLURE. I just have a little notation, but I think that it kind of shows a pattern. The following day the arrest was publicized under the headline of "Illegal Gun Sales Charged," and the article further noted, "An ATF spokesman added that agents confiscated more than 100 unrecorded guns, including a machinegun, when they audited the Moorhead Shop." That, I think, is a part of the pattern.
Mrs. MOOREHEAD. When you get a couple crates of .22's from a Boy Scout camp, they never charged him with anything with that.
Senator DECONCINI. Thank you very much, Mr. and Mrs. Moorhead.
PHOENIX, ARIZ., GUN DEALER STATEMENT OF J. CURTIS EARL, PHOENIX, ARIZ.
Senator DECONCINI. The next witness is Mr. Earl. Would you please give your address and your business and a little background on your particular problem.
Mr. EARL. Thank you, Senator. I am J. Curtis Earl from Phoenix, Ariz. I am a title I and title II licensed gun dealer. I might explain by that, compared to Mr. Moorhead, besides being licensed to sell title I firearms, which are standard-type firearms, I am licensed to handle and sell, possess what we call title II firearms, which are the machinegun and short-barrel rifles, et cetera, that fall into this category. Before I start, I would like to give you a belated thanks for sending your assistant to my license revocation hearing, and for the 5 seconds he spent there during our 6 1/2-hour session. I have a lot of material here, and if I get digressed, would you please throw a rock at me or something.
My background as a dealer began in 1965, when I bought my first ATF license, and it has continued up to date, although for the last 2 years I have been working under a suspended license. I no longer have a legitimate license to send to my dealers and customers. I have a twobit letter that tells me I can work as an authorization on this letter in lieu of my license, which, in effect, tells everybody I do business with I am in a bad light with ATF, and most people don't know what a letter is. They are not used to seeing it. They don't know if I am in business or not, and it is greatly damaging my business reputation-what is left. I have been under heavy Federal surveillance, apparently for years, most of it unbeknownst to me, because I have been 100 percent for BATF and 100 percent for the GCA of 1968, because I feel it may have some merit; it definitely may have some merit.
In 1977, on June 9, I was just starting to open my mail at 10 o'clock in the morning, and I noticed a number of cars drive up in front of my residence, where I do business. I might explain my business is an appointment only, mail order business from my home. I keep my inventory there-and I have an extended inventory. This particular morning I noticed six or seven cars drive up in front of my place, plus the big van. People emerged from every exit. People jumped out of the van. A guy went running across the lawn, stretching the longest telephone extension you ever saw- something like a 250 yard telephone line. Unbeknownst to me, there was an airplane circling overhead-God knows for what reason. This was ATF keeping an eye on me.
I was approached at my door by upward of 10, 15 agents, possibly local agents, and possibly media-people never introduced to me preceding the procession with a Nikon camera and a battery- operated movie camera, photographing everything. I was met at my door by Charles Wallace, who was a case agent in this raid on myself, and Dave Finney, who is a raid captain out of Los Angeles, and I was handed a search warrant. I was not read my rights. I was not arrested. And I have not had my rights read nor have I been arrested to date.
However, these agents came in and they said, "Do not make any fast moves." They said, "We know you have loaded guns in the house", which I do. He said, "We want you to walk very carefully and very quietly and do not make any fast moves and point out where you have these loaded guns," which I keep there for my protection. I did this. Each gun I pointed out to them. They unloaded them and laid the gun on the kitchen table, laid the cartridges on the kitchen table. Two or three guns I pointed out he said, "Oh, we will leave that there."
I might state, in my business I have somewhat over 800 title II items in my business. I have a 12-by-20, 6-foot vault with a safety door and time lock, which is where I keep most of my inventory. I keep a display room which has several hundred weapons, exotic and collectors items. Then, besides this I probably have upward of 1,000 title I weapons, or standard weapons, which go everything from an 1827 Harper's Ferry musket on up to the modern Weatherby rifle. I hunt with a bow and arrow. I have a considerable collection of antique muskets, front load-ers, crossbows, Indian arrowheads. I am just sort of a weapons collector don't ask me why. My folks used to ask me the same thing. Anyway, this is my forte.
In the raid they immediately said, "We want all locked doors, your vault, safe unlocked or we will blow it open." Now, blowing open my vault would have taken some time. I figured, to expedite the thing, I would open it.
Senator DECONCINI. It might have damaged your house a little bit.
Mr. EARL. Well, no, my vault is an exterior building. I have a high security safe. The safe door came from a door in Spain. So you have some sort of an idea what is in there. It is equal to a lot of the older bank wells. This raid was begun somewhat after 10:30 in the morning. I was engulfed with ATF agents, both criminal and regulatory investigative agents. My office was taken over by three people. Every room in the house had agents in them. The vaults had agents in them. There was no way to find out what they were doing or saying. I picked up a tape recorder and said, "I would like to record." They said, "No, you can't record anything. We are confiscating all of your tapes, including sealed, unopened tapes."
Senator DECONCINI. Was that in the search warrant?
Mr. EARL. The search warrant was clever in saying "Mr. Earl is known to record conversations, and all tapes will be confiscated." But unopened tapes? In my FOIA materials just recently acquired, some of the instructions to the agents were, "It is well known that Mr. Earl has listening devices and hidden microphones throughout the residence, so no conversation will be made above a low tone, and nothing of importance will be said to anyone without guarding against being recorded." I at one time tried to pick up a camera. It was taken away from me. It was a situation where it is unbelievable.
Senator DECONCINI. Did they tell you why they didn't arrest you?
Mr. EARL. No, sir; they never did.
Senator DECONCINI. Did they confiscate all your weapons?
Mr. EARL. No, sir; they only confiscated 43 items, as I recall in weapons, although they took my typewriter: it probably had a bad look.
Senator DECONCINI. It was a dangerous weapon.
Mr. EARL. I said, "There's a whole pile of stationary; type every letter; type any word you want; leave me my typewriter." They said "No." I said, "Why don't you take my house?" They said, "We considered that but we finally decided since you have a residence and you live here, it would be in bad taste."
Senator DECONCINI. Who was the agent in charge?
Mr. EARL. Charles Wallace, working out of Tucson. Dave Finney, the raid captain, was from Los Angeles. My records were flown in by Agent Long from Washington, D.C. They brought in my master records to check my inventory. Let me go back a little bit and tell you, 1 year prior to this I had had a compliance inspection by one of the regulatory agents and was 100-percent correct. And then more recently, 2 months before this, I had a compliance inspection by a regulatory agent who also gave me a clean bill of health. They came and raided on another so-called saturated compliance inspection.
During this raid also I asked Mr. Finney, I said, when he started grabbing this and that, and he was bragging about how many people he had put in prison, for instance, he said, "Do you know Charles Scherer?" I said, "Yes, I know Tony Scherer." He said, "I was the guy who was instrumental in putting him in prison. "Do you know Mike Seseiak?" "Yes, I have heard of him," "I was the guy who was instrumental in putting him in prison." He went on with about five or six more names of people I knew and six or seven I didn't, that he was the guy instrumental in putting these guys in prison, which implied it was a threat to me that I was going to prison.
I asked him, "Well, this sounds just like something I remember back in 1936 and 1937. We called these people Gestapo." He smiled and said, "Mr. Earl, no; we are a little bit different than Gestapo." I said, "Oh, how?" He said, "Well after this we are not going to take you out and put you against the wall and shoot you." This was the only difference that he, in his own explanation, was different from a Gestapo type raid.
Senator DECONCINI. Have you had any previous arrests?
Mr. EARL. Not anything like this at all. I am not a felon. I have never been convicted a felony. I could not have a license and be in the business if anything had been in my prior record.
Senator DECONCINI. Had you had any complaints filed by BATF requesting corrective measures or audits?
Mr. EARL. Never; not one.
Senator DECONCINI. How long have you been in this as a business?
Mr. EARL. Thirteen years, sir.
Senator DECONCINI. Have you had any contact with other law enforcement agencies in the State of Arizona?
Mr. EARL. Many. All of them.
Senator DECONCINI. Was any of that involved with any accusation or allegation of breaking the law?
Mr. EARL. None whatever. It was my cooperation with these agencies.
Senator DECONCINI. In what manner did you cooperate with the agencies?
Mr. EARL. Primarily in acting as an informant to the FBI and ATF people in turning in people who I knew were bad guys.
Senator DECONCINI. You had acted as an informant for ATF.
Mr. EARL. Many, many, many times.
Senator DECONCINI. At their request?
Mr. EARL. No, sir; because I felt it was the duty as a citizen to do so.
Senator DECONCINI. Did they, in fact use the information that you gave them on occasions that you know of?
Mr. EARL. No, sir; never, never. And on many, many blatant violations. This is something that probably should have wised me up, but it didn't. I have a very, very tiny bit of information that I brought here out of probably 40 or 50 pounds of FOIA records from the Federal Bureau of Investigation. You see it is pretty well blocked Out. But one notation in here says, and I quote, "As much as Mr. Earl is a legitimate dealer in weapons with a license from the U.S. Treasury Department to buy and sell automatic weapons, and especially in view of the fact that he is an informant for the FBI and ATF, the Phoenix Division will make no further investigation concerning the matter." The William E. Thorenson case, many years ago, and I have on many, many occasions-and I would like you to ask me to name one.
Senator DECONCINI. Please do.
Mr. EARL. Been an informant for the ATF.
Senator DECONCINI. I just asked you if you had been an informant; you said "No." Then I said-maybe you misunderstood- "if that was at their request or yours." You said it was yours.
Mr. EARL. Yes.
Senator DECONCINI. I asked if they used the information; you said "No." Is that correct?
Mr. EARL. That is correct, because most of the times I was acting as an informant it turns out I was informing on their own agents who were trying to set me up.
Senator DECONCINI. Please give us the example.
Mr. EARL. Fine, I would like to. I dated a girl about four times. She was a beautician who worked for a Ramada Inn. We went out two or three times. Some months after I stopped seeing her-and had all but forgotten her name, which I now remember it was Liz-she called me at 2 in the morning and said, "Curt, you still in the gun business? I have a great deal for you." "Really," I said. "that's right," she said. "I have two" here is a girl that didn't know a gun from a push broom, and the nomenclature she used was fantastic, perfect, beautiful. "I have two 1928 A-model Thompson submachineguns made by Colt. Both have "C" drums, the big, rare "C" drums." They have 100-round shots. Very rare guns that sell around a thousand dollars. She said, "They are for sale cheap." I said, "Fine, what kind of registration do they have, because all machineguns have to be registered?" She says, "Oh, there is no registration on them." I said, "Well, I wouldn't take them with a thousand dollar bill attached." She claimed "nobody knows anything. You can break them apart for parts. The drums are worth $600 apiece."
I said, "I agree, but I won't touch it with a 10-foot pole." The parts would have been well worth more on the retail base than what she was asking. I filtered off and hung up the phone. The next morning which is Sunday morning, her son called. He went through the same story: "These are really clean items. Man, you ought to have it with a price of $600 apiece." I said, "Fine, I have done a little thinking. I would like to look at them. Give me the details."
He said, "Fine, we will bring them down to the shop. The time agreed upon was noon. "I will have them in the trunk of my car." I knew her car was a convertible, and she parked in a private spot in front of her shop. I said I would be there at 12 o'clock. I never even hung up the telephone and called Bill Cavanaugh-and he is sitting in the back of the room-and I called him at home. His wife said, "Bill isn't here; he is at the Blank Canyon Shooting Range."
So I called there and had him paged. He came to the phone and I gave him the full details. I said, "Bill, this thing is coming down. There is an illegal machinegun in the back of this car. At 12 o'clock I am supposed to go over there." He said, "You go pick them up and we will be there and get them." I said, Wait a minute, I am not about to touch an illegal machinegun. No way. He says, "That's all right, we will be there." I said, "I have no doubt about that. You go get them. Here is the license number and description of the car." I said, "All you have to do is go down and pick them up." He said, "But we want you to go get them. Once the trunk is opened and you have them, we will be there." I said, "Then you will have me." He said, "We wouldn't do that." I said, "Give me a call; let me know what happened."
So I didn't hear from Bill and not for 2 or 3 days. Finally, I started calling the ATF office, and Bill was never available. So it was about a week later I finally got him an the phone. He said, "Well, I did go down there, and I drove by the hotel but we didn't do anything about it."
Mr. Kavanaugh is sitting in the back of the room. You can ask him if any of my story is in error or if this happened.
Senator DECONCINI. I will ask him.
Mr. EARL. Here is a case where ATF did have an opportunity to pick up two illegal machineguns and make a good case, and it was completely passed off, in my opinion, and it is all it can be. This was strictly a setup to try to arrest me. I have had many, many other cases. I have, for instance, acquired in FOIA material a letter from an agent, his case report of an agent who made a phone call to me and recorded it on his Sears recorder, and I would like to read, with your permission, a little paragraph.
First it says, Authorization for approved electronic surveillance was given by the Attorney General for purposes of recording a telephone conversation between [deleted] and Earl. [deleted] J. Curtis Earl Phoenix, Ariz., in an attempt to purchase title II firearms without proper registration. The conversation, according to [deleted] was that Earl would probably do business under the table. On the same day [deleted] telephoned J. Curtis Earl. During the ensuing conversation it became apparent Earl was only going to sell machineguns in a legal manner. Earl made the statement that he would not sell a thousand dollar machinegun for $10,000 unless it was done with the proper registration.
Due to the attitude of Earl it was decided that he was not in the business of transferring unregistered firearms and any further conversation on the part of [deleted] would enter into a possible entrapment situation. Due to the above story, it was requested this investigation be closed, no potential. If at some time in the additional information is uncovered showing that Earl is involved, the investigation might be reopened. This is dated November 8, 1976.
Senator DECONCINI. Mr. Earl do you have a number of those?
Mr. EARL. Like so.
Senator DECONCINI. Would you at all be interested in submitting those to us with copies or editorial comments? I would like to have a record here as extensive as I can put together. I do have some time constraints today, and I do have three other individual witnesses. The record will stay open for 4 weeks. Mr. EARL. Let me say this. There is still litigation between myself and ATF. Some of this would be jeopardizing.
Senator DECONCINI. I wouldn't ask you to do anything to jeopardize your case. I am struck by these past incidents that you have brought to our attention. They are of extreme interest, because, obviously, the letters you are reading not only does it exonerate as to that case.
Mr. EARL. I know I am running out of time.
Senator DECONCINI. Can you assist us any further?
Mr. EARL. You bet. I will be glad to. I may have to refer to my attorney. During my raid I stated that a Mr. Long was flown in from Washington, D.C, with all of my master records to check compliance with my records and inventory that I had. Apparently, they have some kind of an idea I had a bad inventory, that I had illegal guns, or I had sold guns that I had not transferred out, et cetera. This I don't do. Every gun has a pedigree, and it is just as easy to keep that pedigree if you pay attention to it. There is no way to transfer a legal gun without your neck in a noose. It isn't worth it. I make a good living at this. It is legitimate. It is 100 percent by the law. It is written up very explicitly, to give detailed issues on it. And that is the way I do it.
Yet, I would understand, and I think you would too, that the records here in ATF in Washington would be absolutely perfect. Every gun that is transferred there is a transfer out. They should have it right perfect. One gem that I got in the total of 55 pages that was my FOIA report-and in my FOIA report I might point out that my letter was in exact compliance with the requirements for asking for all info on an individual and I go into extra detail in asking for what I should have.
My complete docket sent to me was 55 pages, about one-half of which was unreadable; the rest of it was blocked out to where you couldn't find anything in it. At the same time they sent me 55 pages, the U.S. attorney in Tucson has a stack probably a foot high. So my 55 pages was nothing but the tip of the tip. But in there they slipped by an ATF agent's report on my raid. It got in there because it is not dated, and apparently the guy who pulled the stuff was supposed to look for dates. I think it is significant that you hear some of this.
This is a description of the raid and why the raid was taking place and why it was a compliance. "On June 15, June 17, a compliance and inspection was conducted." They are only off a week in that date. "This was the only area of the premises" referring to my vault, "that had not been inventoried by the Department." Remember, Senator, I have something like 800 title II weapons and firearms, all licensed, all in the book, all in inventory, and all available to put my finger on.
It tells about the compliance check in the vault. When they first went through my display room, they started checking the guns on the wall against their paper record. "We don't have this in the record." They would pull it off the wall and put it on the floor.
After a while, they had my floor covered with guns which were supposedly not registered. I said, "I have the paperwork. I have my copy with the Director's signature that these guns are mine. Let me get my paperwork." They said, "No way; keep out of our way." OK, so after the pile went from my display room into my kitchen, I finally talked to them and said, "Let me take and show you some of my paperwork, which is a stack like this." They said, "Well, if you think you can."
So I got my paperwork. One by one, every gun they claimed was an illegal unregistered gun went back on the hooks.
Here is the significant part of this, No. 6, "The firearms we inventoried in the storage area were checked off of the list. As we checked the firearms, we noticed a large number of firearms, later determined to be 425, with no notations. Since the instructions were to finish the inventory to secure a complete physical inventory, we extended the inspection to verify the status of unchecked firearms. In doing so, we found some were listed more than once. This entailed approximately 4 to 6 hours additional work, going over the list to find out the duplicate and sometimes triplicate listing. We are referring to ATF master Washington records in duplicate and triplicate.
Senator McCLURE. Mr. Earl, I think we could save a little time. I have a copy of the inspection report which I would make a part of the record.
Mr. EARL. Fine, I didn't realize you had that.
[The information follows:]
J. Curtis Earl 5512 N. 6th Street Phoenix, Ariz. 83012
REPORT OF INSPECTION
INTRODUCTION
1. A compliance inspection of title I firearm records was conducted during a raid by C.E. on 6/9 and 6/10/77, at the premise of J. Curtis Earl, FFL #86-2993. Inspection disclosed minor record violations noted on F 5030.5 (attached). Detail of violations on attached exhibit 1.
2. On 6/15-6/17/77, a compliance inspection was conducted at this premise at the request of Mr. * * * ASAIC, LADO. This inspection was a followup of a raid conducted on 6/9/77.
3. Instructions received from Area Supervisor * * * were that the inspection was to finish the physical inventory of title II firearms in the room adjacent to the vault in Earl's backyard. The purpose was to obtain a complete physical inventory of title II firearms. According to instructions, this was the only area of the premises which had not been physically inventoried by C.E.
REPORT OF FINDINGS
4. On 6/14/77, we obtained from the Phoenix ATF office the ATF lists of title II firearms and destructive devices registered to J. Curtis Earl, (exhibit II). 5. On 6/15, the area next to the vault was inventoried, per instructions. We were assisted by S.A.'s * * * and * * * S.A. * * * departed in the early afternoon an 6/15. 6. The firearms we inventoried in the storage area were checked off on the ATF list. As we checked the firearms, we noticed a large number of firearms (later determined to be approximately 425) with no notations.
Since instructions were to finish the inventory to secure a complete physical inventory, we extended the inspection to verify the status of the unchecked firearms. In doing so, we encountered several problems. a. Firearms were listed more than once. This entailed approximately 4 to 6 hours additional work going over the list to find the duplicates and sometimes triplicate listings. Where we found these duplications, notation was made of the cross listing. b. Approximately 425 firearms were found not to be checked off the list after the inventory was completed. To verify the status, we used Mr. Earl's bound book to determine if these should be on hand, or if they were transferred (per his records). Transferred firearms were marked to show date of transfer and last name of transferee on the right hand margin of the page.
Transferred firearms, per Earl's record, were not verified with NFA. c. Of the 425 firearms not checked, approximately 247 were found, per Mr. Earl's records, to have been transferred, and approximately 135 to be on hand. No record (per Earl's records). could be found of 21 firearms, using the dates of transfer on the ATF list, and 22 firearms were not checked to verify if listed in Earl's records. Of the 135 which should have been on hand, 74 firearms were checked and found to be on hand. One firearm- an M-3 machinegun, serial #171991, .45 caliber was transferred to Dudley Dumaine on 8/26/69, but was listed as being on hand in Mr. Earl's records. d. While checking the 74 which were determined to be on hand, it was noted that all these were located in areas of Mr. Earl's premises which, according to our instructions, had already been inventoried.
These firearms were not located in one place or one group. In several instances these firearms were located right next to a firearm which had been inventoried. In at least 10 instances, Mr. Earl complained that he had specifically located a firearm, which had not been checked off as being on hand, for ATF personnel taking inventory during the raid of 6/9/77. Mr. Earl became quite upset at this duplication of effort as he thought the inventory had been completed. During the inspection. Mr. Earl was in contact with his attorney and was taking notes as to our procedures and our questions to him. Mr. Earl was extremely critical of the ATF list of firearms registered to him.
VIOLATIONS
7. 27 CFR 178.125-Licensee failed to record the disposal of an M- 3 machinegun, serial #171991. .45 caliber transferred to Dudley Dumaine on 3/25/69 in the bound book (Form 5030.5 prepared.) (See record book p. 3, line 31.)
CONCLUSION
8. The ATF prepared list of firearms registered to J. C. Earl was found to be inaccurate in that (1) 247 firearms listed had been transferred from him and (2) 21 firearms listed were not found in his records, nor on his premises. In the area we inventoried, all firearms found were on the ATF list. Also, in that there were 74 fire=u on hand, per Earl's record, which had been inventoried on 6/9/77 and apparently not checked off on the list we cannot state with certainty that the ATF list represent a current physical inventory. Additional time spent to check the remaining firearms and to obtain an "actual inventory" (approximately 2 weeks for two inspectors) was felt not warranted under the circumstances: i.e., the time already put in by R.E. & C.E and the fact that the ATF list being used was incomplete and not concise and further work with the list would not produce an "actual inventory."
9. Inspection disclosed the A. & D. record of title II firearms to accurately reflected the approved acquisitions and dispositions. One error-failure to record a disposition- was found.
10. The ATF list of title II firearms registered to Earl has been noted to show, (1) a check mark for those firearms on hand, (2) a date and name for those transferred or a T and circle around the serial number, (3) an SBH for those that "should be here," per Earl's record and not verified as being there, and (4) a question mark for those not found in his record or not checked with his record. It is our opinion that Earl's A. &, D. record and personal firearms book reflects accurately those firearms legally on hand, and represents a current physical inventory.
- * *
ATF Inspector.
- * *
ATF Inspector.
Senator McCLURE. You might just summarize.
Mr. EARL. In summary, the ATF master records were crap-excuse, the expression. They had nothing. They checked their records with my records, and they went on and on and on, The substance was, out of 800 items, they found something wrong with 1 item. That is where I neglected to log out one gun, but which I was easily able to substantiate by transfer papers and receipts.
Senator McCLURE Mr. Chairman, I think this would be a good place to inject in the record the fact on May 6, 1975, Mr. Atley Peterson wrote a memorandum to Rex Davis, Director, in which he asked for $34,416 to duplicate certain records of ATF because their records were bad. There were discrepancies in the records, and they needed to get the inaccuracies Out. The memorandum makes this statement: "These discrepancies and inaccuracies in the record, if discovered in a would destroy the further credibility of such evidence."
They also, later on in the same memorandum, indicate that it could result in the conviction of innocent persons. That request to correct the records was denied by Mr. Davis in a memorandum dated May 30, 1975, signed by Mr. Rex Davis. He says, "I do not consider it advisable to duplicate a record which is admittedly inaccurate. Therefore, your request is denied."
On April 3, 1976, there is a memorandum to the Assistant Director from the Chief of the NFA branch in which they again point out that the records are inaccurate, that they continuously discover discrepancies and inaccuracies in the registration file which, if discovered during a trial, would destroy the further credibility of such evidence, and repeat the feeling that innocent persons might be convicted based upon their records because of the inaccuracies in the record.
[The memorandums follow:]
MEMORANDUM
APR 3 1975
MEMORANDUM TO: Assistant Director Technical and Scientific Services
VIA: Chief, Technical Services Division SUBJECT: Purification and verification of National Firearms Registration and Transfer Record
PROBLEM
Our basic problem is that of perfecting and protecting the integrity of the National Firearms Registration and Transfer Record which is vital to the implementation of the provisions of Title II of the Gun Control Act of 1968.
Our response to inquiries on the existence or nonexistence of proper registration of an NFA firearm is the basis for seizures, arrests, prosecutions, fines and imprisonments. Our testimony or certification as to the nonexistence of such record is evidence subject to close examination in court. We continuously discover discrepancies and inaccuracies in the registration file which, if discovered during a trial, would destroy the future credibility of such evidence.
One resultant possibility is that a defendant who maintains he had properly registered his firearm but had lost his approved form could, subsequent to his arrest based on non- registration, locate his lost document. If the court should discover that our negligence caused an unwarranted arrest and trial, the resultant loss of public trust would be irreparable.
Just as serious is the possibility that an innocent man might be convicted if he could not find his registration form when, in fact, we had failed to locate his registration in the Record.
BACKGROUND
In 1969, shortly after passage of the Gun Control Act of 1968, three Diebold machines were installed to house the National Firearms Registration and Transfer Record forms, the 3x5 serial numbered cross reference cards on such registration and transfers, and the Technical Services Division's correspondence files.
Originally one machine held the forms, one held the correspondence files, and the third held the card file. However, because of the increase in the number of registration documents in the forms file, five shelves, or a total of 25 tubs in the correspondence Diebold machine have been preempted for the filing of forms. Our most recent estimate of the number of registered firearms is 247,093.
Of these, 70,000 were registered during the amnesty period and 117,093 have been registered since December of 1968. In addition, there are at times hundreds of thousands of firearms registered but awaiting imminent exportation. In addition, there is little room available at this point for any additional filing of forms, cards or correspondence.
On February 7, 1971, Project TST 73-10 was initiated to microfilm registration documents, cross reference serial numbers in sequence to alphabetical file, and give instant retrieval of serial number or document through the use of a keyboard, with the primary purpose of the dual system being the safeguarding of the integrity of the Record. Proposed completion date was January 1, 1973. When our present microfilm clerk came on board in October 1972, she discovered that although 90% of the registration is by individuals had been microfilmed, 25% of those documents were incorrect, incomplete or indecipherable.
During the period October 1972 to August 1974, Mrs. Maiolatesi corrected that portion needing to be re-microfilmed, and also microfilmed the remaining 10% of the individual registrations. However the law enforcement and industry registration records have not been coded and micro- filmed to date. Therefore, only 50% of all registration forms are estimated to have been microfilmed.
Unfortunately, the coding system in operation in October 1972 was found to be basically lacking in that it was inaccurate and incomplete, making retrieval difficult if not impossible. Mrs. Maiolatesi set up a new coding system.
At a cost of $10,000, IRS had contracted with Kodak to produce a system by which microfilmed data could be corrected to show the transfer, theft, destruction, change of address or other meaningful data for any given firearm. The resultant method employed a stylus to indicate code numbers at the top of each piece of film. For example, if a man named John Doe transferred a firearm, Serial No. 95764 to another man named Joseph W. Brown, the code to be inserted to indicate Mr. Brown's acquisition of the firearm would be a numbered code, based on the binary system; 6 digits would be used representing the 2nd through 5th letters of the transferee's name (in this case, "rown") followed by two digits representing the initials of his first and middle names.
The system might have been of potential value except for the fact that the delicate stylus employed was inaccurate for marking the minute numbers appearing on the film. The result was that it was difficult or impossible to identify the correct number. Therefore, it was useless to attempt to enter the required data on the microfilmed material. We have been informed than it would be impossible to improve the precision of the instrument.
Another difficulty arose because of the large volume of forms received for the making, exportation, or transfer of firearms by and between special taxpayers. There was simply insufficient time for such information to be microfilmed on a daily basis. Since special taxpayers frequently transfer quickly, a daily microfilming would be required in order to have an accurate record of the firearms. Although, in transfers between individuals, efforts have been made to keep the microfilm information fairly current, this is updated on a six-months basis only.
Since the turnover of firearms between special taxpayers is very heavy, an average of 30 changes a day would require 30 frames of microfilm. The processing paraphanelia is in the Laboratory at IRS and they will process as little as 1/4 to 1/2 roll for development. However, at the rate of 30 frames a day, this would result in actual processing only once a month which would be useless in view of the rapid turnover in firearms between special taxpayers. In addition, there are hundreds of thousands of firearms registered but quickly exported. It is self-evident that it would be impossible to microfilm more than the present 50% of this material with any degree of accuracy and timeliness.
It has been felt that the security and integrity of the film could be better maintained if all look ups, searches, etc., could be of the microfilmed material. The original file would have been used only for court evidence and possible verification of card and microfilmed files. From a workable standpoint this has failed.
Further, since the microfilm is in the same area as the other files it is no less susceptible to fire, riot, theft, or other possible hazard. Microfilm, if it did not explode from internal combustion during a fire, would probably melt since it is highly susceptible to temperatures. In summary, only about 25% of the Record is duplicated in microfilm and can be retrieved by name checks. No retrieval is possible based on serial numbers. Partial retrieval is of no value insofar as searches are concerned.
The chief problem with using the Diebold file system is that only one person can use a Diebold machine at a given time. This means that if someone is checking for a form, for example, and someone else has a TWX or telephone call or other urgent matter, the original searcher is shunted aside to allow the urgent or priority matter to be resolved. This is not just an hourly occur- rence, it is a constant one. The result is loss of time for all concerned; the employee who must stop and wait has his concentration interrupted and his work is slowed, backlogs develop, overtime is generated and morale slumps. Furthermore, such interruptions tend to compound the probability of misfiling documents and cards.
PROPOSED SOLUTION
The most efficient system which could be used world, of course, be ADP. However, due to current budgetary limitations, this is impracticable.
The most practicable and least costly (even less costly than the present system) is a simple duplication of the records by xeroxing-eliminating the microfilming. We suggest the following be implemented as soon as possible: 1. Close down the file and make xerox copies of all. existing registration documents and cross reference cards in the Diebold machines.
2. For accessibility purposes, place the document copies in open shelving and the 3x5 reference cards in the file drawer cabinets.
3. To ensure security in the event of hazard, relocate the Diebold machine containing the original documents intact to another floor.
4. To guarantee continued integrity, implement procedures whereby, as documents are received, copies are made and placed in work files and originals are sent to Diebold location for preservation of evidentiary material.
We feel that both the problem of access to the files and the problem of overcrowding could be overcome by the use of a different type file for both forms and cards. To substitute for the microfilming equipment, insure maximum security of documents which may become evidence, implement a more realistic and positive means of duplicating all records (as well as to ensure physical separation) in order to overcome present delays and backlogs, to obtain necessary statistical data, and to locate and properly file misplaced documents would result in a savings of cost and man years, would be a means of purifying the Record and of implementing procedures to guarantee the continued integrity of the Record. It would eliminate the handling, marking, defacing and daily wear and tear of documents which are potentially evidentiary material.
An added advantage of this system, once it is fully implemented, is that we can establish an accurate count of all registered firearms, by type. Once this is accomplished, a daily accurate accounting will be maintained
EXPLANATION OF ESTIMATED COST
Initial duplication of records would involve closing down routine business for six work days, beginning on a Friday evening, with two shifts through the next week and through the following Monday up to the regular close of business (a total of 10 days) requiring 26 people, and 5 Xerox machines, for 112 hours of overtime. If the shutdown were not authorized, a total of 168 hours of overtime would be required. Based on 112 hours of overtime, however, at an average of $6.00 per hour per person, the cost would be $17,472 plus approximately $500 in taxi fares, $17,972. Approximately 500,000 forms require xeroxing.
If the machines on hand were used and 4 machines were rented from Xerox corporation under a GSA 60-day contract, the cost would be $13,007.64.
On the other hand, if the closedown is not authorized, the 56 additional overtime hours, plus additional cab fares would add another $8,736 plus $300 to the total cost, or $9,036. With the 10-day closedown, then, the total cost would be approximately $30,779.64. If we do not close down for 10 days, the approximate cost would be $40,014.64.
An alternative solution we might suggest, if funds are absolutely unavailable for the solution just delineated, is that we assign two Documents Examiners full time (authorize 32 hours a week overtime) and using a rented Xerox machine, for a period of 6 months, in order to duplicate the file. However, the purification and verification of the file would have to be accomplished on a piecemeal basis by Coordinators and Specialists and it is estimated this might take a year or more.
This solution is obviously unsatisfactory from the point of view of the immediate need to establish the integrity of the National Firearms Registration and Transfer Record. The total cost, although spread out over a longer period, might well equal the cost of the preferred solution.
It should be noted that the Privacy Act of 1974, with which we have only recently become familiar, subjects the National Firearms Registration and Transfer Record to close scrutiny since, under the Act, individuals may have access to many of the documents and any inaccuracy could be grounds for civil and/or criminal actions.
Because of the urgency of the situation, we have acquired 24 bookcases and several file shelves as a temporary expedient. It is estimated that $11,000 would be necessary to acquire the necessary shelving. Since efficiency is somewhat impaired by the use of bookshelves, we feel that funding should be approved as soon as possible. Also 3x5 card file drawer cabinets have been requisitioned.
Our educated guess is that one person working full time daily on the duplicating of the Record could accomplish this in just under two years. However, it is estimated that the purification and verification of the Record would take several additional years, making this solution entirely untenable because of excessive time factor.
We are sure you will agree that this matter is of the utmost urgency. Our staff is available to supply any other information you may require and we are prepared to proceed with fulltime duplication, purification and verification of the record as soon as we receive formal notification as to which procedure is approved.
[this appears to be part of a second memo, as the reproduction is of even poorer quality than the previous one, and is double spaced]
In conjunction with our work relative to the Privacy Act, we recently examined a minute portion of the Division's Correspondence Files. During that cursory examination, we discovered three discrepancies which directly affect the integrity of the national Firearms Registration and Transfer Record.
(1) We had sent a letter to a taxpayer stating that his firearm had been removed from the Record. A check revealed that the serial number card was still in the Record. Had we received a TECS on this, we would have replied that the weapon was registered, when, in fact, it is not.
(2) Stapled to the back of a yellow file copy of our letter to a taxpayer were two originals of approved transfers which should have been sent to the taxpayer with our letter.
(3) An approved copy of a transfer form was attached to the yellow file copy of a letter, but there was no copy of the form in the National Firearms Registration and Transfer Record.
Since errors such as this weaken the integrity of the Record and put in serious question the results of NFA searches and court certifications, we feel that the purification of our correspondence files should be coordinated with our project to duplicate, purify and verify the Record, as the problems inherent in the present situation are applicable to both and urgently require action.
We checked one folder in one tub. We have 33 tubs of correspondence, each containing on the average of 15 folders, or a total of 495 folders. Rounding off to 500 folders and taking an average of one hour to review and purify each folder, this involves 500 man hours of work. The review [2 illegible lines of text]
?? that ?? NFA research employee could be used fulltime on this ?? of the project. It would take about 13 weeks, or 3 months, to complete the purification of the correspondence files. Obviously, if 2 employees could be spared for fulltime attention to this work, it could be completed in six weeks.
NOTE: In addition to the above, it is our understanding that a recommendation is to be made that the Bureau maintain an alphabetical list of all individuals whose names appear in our records for the purposes of implementing the Privacy Act. In order to comply with such requirement, we must first purify the Record and out correspondence files.
RE Purification of Records
Forms which should be in Records are in correspondence (see memo on duplication of records.)
There is one tub of "DEWATS" and "No serial number" forms. Dewat cards have been destroyed. Dummy cards must be typed and put in card file on all DEWATS. "No serial number" forms should be pulled and copies sent to field for in-depth investigation to locate registrants and have ATF Numbers assigned where required, or to examine firearm and find S/N. (May be 1,000 forms in this tub.)
There are three tubs of "Registration not Required" which must be gone through to verify that firearms are Title I or Antique not requiring registration. For example, there are some which are M- 1's but there has never been an investigation to verify-that registrant does not have M-2 conversion kit with M-1. These forms were stamped "Registration Not Required" shortly after the amnesty period and it could well be (and we suspect that this is so) that some Title II firearms are in these files. (3,000 forms?) [illegible handwritten line]
There are cards in the card file registering DEWATS to special taxpayers. These should be put in dead file since s/t's were supposed to know that they had to re-register them. BUT: Problem-- do we include all licensees in this category--and what is legal justification? Further, the forms on many have been destroyed or in cases of multiple registration, that S/N has been blacked out on the form (or, in later years, crossed off on the form).
There are Forms for which there is no card and cards for which there is no Form.
There is material in the forms file which should be in correspondence file, or in dead file. [illegible handwritten line]
There are many, many dual registrations which should be resolved.
5-6-75
MEMORANDUM TO: Director
FROM: Assistant Director Technical and Scientific Services
SUBJECT: Phase I of the Purification and Verification of the National Firearms Registration and Transfer Record-Duplication of the Record.
As you are aware we have not had, over the years, a uniform system of filing in the National Firearms Registration and Transfer Record. We have discovered numerous discrepancies and inaccuracies which require immediate corrective action.
Attached is a self-explanatory, comprehensive report from the Chief, NFA Branch, detailing the problem involved. Briefly, the microfilming system has proved unsuitable for our purposes. How- ever, in order to ensure the safety of the Record, it must be duplicated, with the original Record being maintained apart from the duplicated Record. Inaccessibility to the files because of the utilization of Diebold files hampers our routine business involving NFA transactions and generates excessive backlogs requiring overtime. Urgently needed statistical compilations of data in the Record will also be obtained under this project.
Of most vital concern, however, is that these discrepancies and inaccuracies in the Record, if discovered in a trial, would destroy the future credibility of such evidence. One possibility is that a defendant who maintains he had properly registered his firearm but had lost his approved form could, subsequent to his ar- rest based on non-registration, locate his lost document. If the court should discover that our negligence caused an unwarranted ar- rest and trial, the resultant loss of public trust would be irreparable. We dread to think that an innocent man might be convicted if he could not find his registration form and we certified that he had not registered the firearm when, in fact, we had failed to locate his registration document in the Record.
CADWALADER, WICKERSHAM & TAFT
DEFENDANT'S EXHIBIT
No. ee
DATE
REPORTER'S INITIALS
For these reasons we request permission to begin immediate duplication of the Record as Phase I in a project to purify and verify the Record. Following is a brief breakdown of estimated costs for this phase of the purification. Please note that the figures are somewhat at variance with those in the attached memo- randum since we have recently obtained more specific figures on file costs and we have also used more sophisticated analytic techniques to obtain the breakdown of personnel costs.
Rental of 4 xerox machines on a 60-day contract $13,000.00
10 - 3 x 5, 18-drawer card files 2,960.00
22 Conservo-file cabinets 4,576.00
1840 hours of overtime at an average cost of $7.00 per hour 12,880.00
200 cab allowances at an average of $5.00 each 1000.00
TOTAL $34,416.00
We will be glad to supply additional information or answer any questions you may have. If implementation of this phase of the purification project meets with your approval, we would appreciate your so indicating in the space provided below.
A. Atley Peterson
Attachment
APPROVED:_________________________ DATE: _______
Rex 0. Davis
Director
51
EXHIBIT 13 - NFA
May 22, 1975
MEMORANDUM TO: Assistant Director (Inspection)
THRU: Regional Inspector Thomas W. Hines Atlantic/North Atlantic Regions
FROM: William A. Boone, Special Agent James A. Fowler, Inspector
SUBJECT: Integrity of the National Firearms Registration and Transfer Records
Approximately 247,093 registration forms are filed in two Diebold machines and 250,000 index cards filed in one Diebold machine. These three machines are fast approaching their full capacity for filing and storage of forms and cards. Presently, there Is no adequate back-up system to insure that the existing records are secure from a common disaster, fire or water damage. The storage room for the Diebold machines is protected by a sprink- ler system in the event of fire. Should the system be activated by fire or accident, the resulting water damage to the records could result in partial or total disruption In the use of the records.
The microfilm project TST 73-10 which was initiated February 7, 1971, has proven ineffective. The memo dated April 3, 1975, from Chief, NFA Branch to the Assistant Director, Technical and Scientific Services, subject: --"Purification and Verification of National Firearms Registration and-Transfer Records," (hereafter referred to as NFA Records) adequately documents the problems with the microfilm system. This has been corroborated by interviews with Mrs. Maiolatesi who does the microfilming and Evidentiary Document Coordinator, Eugene Reagan
Mrs. Maiolatesi relates the operational problems with the equipment substantially as outlined in the memo of April 3, 1975. Mr. Reagan has worked with the records continually from August 1974 to May 19, 1975, and has only used the microfilm records one time in an attempt to verify registration when no index card or registration form could be found. However, he was successful in verifying registration. Mr. West, NFA Branch Chief, has used the microfilm three times within the past three years for record searches.
The procedure for researching NFA records is completely manual except for the mechanical function of the Diebold machines.
Record searches or "look ups" are made as a result of all types of requests to transfer firearms, inquiries originating from Criminal Enforcement and requests for certifications to be used as evidence. The refiling of index cards and/or registration forms is also performed manually. Flow charts now being prepared In the NFA Branch reflect a record search and refile time to be from five to ten minutes.
Approximately eighty (80) record searches are made daily, thirty (30) for routine transfer applications, thirty (30) for evidence certifications and twenty (20) related to Criminal Enfor- cement activity. Using a five minute time factor for each record search, this reflects the records to be in use six hours and forty minutes per day. Record searches are hampered by the Diebold system which limits the index cards availability to one person at a time.
Twelve (12) employees use the records daily and ten more em- ployees (includes after hours duty officers) have access to and use the records as necessary. Security procedures are established by attached memo dated June 26, 1974.
The primary concern as set forth in the referenced memo of April 3, 1975, is the perfecting and protection of the integrity of the NFR and TR is a valid concern. This concern extends to top management levels within the Bureau as evidenced by expressed interest in the operations review now in process. The impugning of the NFA Records integrity in a criminal proceeding at either District or Appellate court level is now possible.
However, the probability of this occurring is not readily predictable. Again referring to the memo of April 3, 1975. (page 1) note the statement "We continuously discover discrepancies and inaccuracies in the registration files which, if discovered during a trial, would destroy the future credibility of such evidence."
Interviews with Mr. Reagan and Mr. West reflect the following types of discrepancies and inaccuracies existing in the NFA Records.
Serial number and registered owner of firearm recorded on index card and no registration to support registered status.
Serial number and registered owner recorded on registration form and no index card from which to locate the registration form.
Firearms registered that no longer require registration, i.e., reclassified from Title II to Title I (curios and relics) by special ruling.
Dual registrations of firearms.
Registration forms filed in "dead files" that contain current registrations of special tax stamp holders and former special tax stamp holders.
Misfiled records, both index cards and registration forms.
Records missing as evidenced by registered owner producing registration form when no form or index card was located in the NFA Record.
An examination of NFA charge cards in Diebold trays 3-3, 8-7, 8-2. and 11-2 was made. These cards were compared with the NFA Records and the results are shown below:
Serial number 890 - .45 cal. Thompson submachine gun, Model 1921, registered to Sheriff's Department, Kenton Co., Kentucky. Form 5 location shown by county rather than city. Entire Kentucky folder had to be checked to locate.
Serial number 002566- Stoner 63 automatic S63, .223 cal. Index card checked out 3/6/67 to ANA could not locate since registered owner's name not recorded.
Serial number 9571 - Dual registration. These are normally referred to the field when discovered In order to clarify status.
Serial number 1568 - Dual registration.
53181 - H & R Handy gun, 410 gauge. Could not locate registration.
IRS 8181 - Sawed-off shotgun. Could not locate registration.
53-2000181 - Model 11, 9mm. Index card checked out 6/5/73 to DLW. Could not locate registration form.
51-2000840 - Suppressor M-10. index card checked out 10/26/71 to DLW. Could not locate registration form.
384581 - Dual registration 1934 and 1958. No research or referral to field made.
Misfiled - Two registration forms in the folder for Sheriff's Department, Kentucky, were forms for Sheriff's Department, Kansas. (now corrected)
1160 - K/44 M-44 7/92 mm. Index card shows ref. owner Cadmus Company. Some records concerning Cadmus were checked out and could not be located. They were located the next day.
Four firearms checked were located in the NFA Records without difficulty.
Currently when index cards are removed from the NFA Records, a charge card is inserted in its place on which is recorded sufficient information (in most instances) to locate the index card or folder containing the NFA registration. In past years, the charge card frequently did not reflect sufficient information to allow a record search to be completed, i.e., the name of the last registered owner. Numerous cards which lack sufficient information for a record check remain in the files, and it appears that nothing has been done to correct the problem.
The 3 x 5 index cards are filed in trays contained in the Diebold machine and each tray contains from 1,200 to 2,600 index cards. Index cards are checked out principally for use In process- ing applications to transfer a firearm. If the transfer is approved, a notation is made on the index card reflecting the current registered owner, and the old registration or transfer form is attached to the last approved transfer form.
All check-out cards inserted In lieu of index cards in trays Nos. 3-7, 8-6, 11-7, 12-1 and 12-2 were examined. In addition to the aforementioned spot check of fifteen firearms by serial number, it was noted that eleven index cards had been checked out two or more years ago, and four cards were checked out with no date shown.
Although no extensive examination was made of the NFA Records, information gathered by interviews and spot checks is conclusive that an in depth examination would reflect the same information, increased proportionally.
Considering the requirements of pertinent laws and regulations and the numerous problems which have evolved in the present system of keeping NFA records, we recommend that a management-level task force be assigned to analyze the MFA record system and reach a firm decision for recommendation to the Director. We believe the task force should consist of a representative of ADP, Criminal Enforcement, Regulatory Enforcement, and the Planning, Organization and Management Staff.
Included in the recommendation should be the best type of record system available for utilization (whether it be manual or ADP) and recommended procedures for assuring that the integrity of this system will be perpetually maintained and the contents safeguarded.
The Kepner Tregoe concept of problem analysis and decision making should prove beneficial In reaching the recommendation.
In keeping with the fine tradition of the Bureau, we believe our system of firearms registration should be of such caliber that it can serve as a model for states and cities which now have gun registration laws or may enact them in the future. We believe that our system should be adaptable to the degree that if additional gun registration requirements are enacted by the Congress, such requirements may be implemented quickly and effectively.
[signed] [signed] William A. Boone James A. Fowler
PROCEDURES FOR CONDUCTING A SEARCH OF THE NFR AND TR RECORDS
Request for Evidentiary Certification, Form 4637
1. Check index card when serial number known 2. Name check of original registration or transfer form. 3. Check folder 4. Check firearms not required to be registered folder 5. Sometimes check correspondence folder 6. Check special taxpayer folder
Records check made at Request of Criminal Enforcement
1. Check index cards of serial numbers known 2. Check for name in four places (as in Evidentiary Certification search) 3. If a record found, go back to index cards
Forms 4 and 5
1. Check index card (usually sufficient) 2. Check special taxpayer folder
Form 10
1. Check index card (usually no record) 2. Check special taxpayer folder
Thirty (30) transfers daily - 30 to 60 physical search motions
Thirty (30) Evidentiary Certifications daily - 30 to 120 physical search motions
Thirty (30) searches for Criminal Enforcement daily - 20 to 50 physical search motions
COMMENT: The Chief, NFA Branch indicates that he has definitely considered ADP but his superiors decided that the manual system now in use or another manual system should be continued and that these systems, although quite expensive, would apparently negate any move toward a more flexible automated system. "Current budgetary limitations" were cited as the reason for deciding upon the all- manual system.
We do not know how Mr. Peterson and/or Mr. Darr reached this conclusion. To our knowledge, no one, within recent years, has seriously considered any system of filing the records other than the one proposed in the memorandum of April 3, 1975. This proposal appears to be more an act of desperation than a recommendation based on management by objectives.
A determination might later be made that a manual system, such as the one which has been proposed, would be the correct course to follow; however, it appears that NFA Branch Is at a crossroad. They have energetic people in several key jobs who have progressive ideas; they are in the process of filling newly authorized coordinator positions; and they are convinced that the present system is inadequate. The decisions made in the immediate future will have an impact on this branch for many years to come. We are of the opinion that these decisions must be based on thorough consideration of the available alternatives.
May 30, 1975
MEMORANDUM TO: Assistant Director (Technical and Scientific Services) FROM: Director SUBJECT: National Firearms Registration and Transfer Record
The current audit being conducted by the Office of Inspection into the Office of Technical and Scientific Services has disclosed serious discrepancies in the National Firearms Registration and Transfer Record maintained in the Technical Services Division. Please see memorandum dated May 23, 1975, from the Office of Inspection which is attached. I have received your memorandum of May 9, 1975, in which you request $34,416 to duplicate the National Firearms Registration and Transfer Record. I do not consider it advisable to duplicate a record which is admittedly inaccurate therefore, your request is denied.
I an establishing a study group to review the National Firearms Registration and Transfer Record and make recommendations to insure its accuracy and completeness. Mr. William T. Drake, Assistant Regional Director (Regulatory Enforcement), Midwest Region will chair the study group. Please ask your employees to extend full cooperation to the study group.
[signed]
Rex O. Davis
May 30, 1975
MEMORANDUM TO: Assistant Director (Criminal Enforcement) Assistant Director (Regulatory Enforcement)
FROM: Director
SUBJECT: Study of National Firearms Registration and Transfer Record
I am establishing a study group to make recommendations for achieving accuracy and completeness of the National Firearms Registration and Transfer Record in the Office of Technical and Scientific Services. In accordance with your recommendations, the following people are assigned to be members of the study group with Mr. William T. Drake, Assistant Regional Director (Regulatory Enforcement), Midwest Region, who will act as Chairman.
Mr. Charles F. Watson, CE Mr. Nick Voinovick, RE
Mr. Chairman, I mention these memorandums simply because it seems to me the BATF had bad records and they knew they had bad records, and they were still prosecuting people on the basis of bad records, even though they themselves internally had said it might result in the conviction of innocent people. That pattern of callous disregard of the rights of innocent people is a part of the pattern that I think we have discovered and will be laid on the record here.
I think we also ought to mention the case of Brady v. Maryland, decided at the October term in 1962, in which the Supreme Court held that the suppression by the prosecution of evidence favorable to the accused, upon request violates due process where the evidence is material either to the guilt or punishment irrespective of the good faith or bad faith of the prosecution.
Mr. Chairman, I think them is absolutely no question that BATF not only knew their records were inaccurate, they pointed to the probability that innocent people would be convicted, they suppressed the evidence of the inaccuracy of their own records, and they have convicted people on the basis of that inaccurate record. They have also brought any number of indictments, or tried to bring indictments, in associated cases. There were 21 indictments that they tried to involve you with and couldn't get a true bill on any of them.
Senator DECONCINI. If that is accurate, they very well may have broken the law themselves.
Mr. EARL. In closing on this report, I would like to read one paragraph from the inspection report. In inspecting title II firearms to accurately reflect the approved acquisitions and dispositions, one error-failure to record a disposition-was found. This was in over 2,000 records, 1 was found. In closing their last paragraph, "It is our opinion that Earl's A. & D. record and personal book reflects those firearms legally on hand and represents the current physical inventory that is legally on hand," which implies I had a bunch of illegal stuff, which is ridiculous. End of that.
The result of all this resulted in, No. 1, it is difficult for you to see this-and I know that the judges have all kinds of great immunity regarding search warrants-but I would like to point out that the affidavit that ATF submitted in preparation to getting the search warrant for my home, where you see red lettering on this are blatant errors, fabrications, and lies that they submitted to acquire my search warrant. This goes on and goes on and goes on.
These are blatant errors-days, names, places. And the affidavit that they presented to the judge to acquire my search warrant-there are quite a few there-and it is a bunch of lies, fabrications, what have you, by different agents where this affiant so states, and this is what they presented to get my search warrant. Then they come with 21 counts, 18 technicalities, of my supposed dealing with the chief of police to buy guns, of which each and every one is legal sanctioned, and approved by the Washington office of ATF.
They brought this out primarily in an effort to try to prove that search warrant the chief of police and I were doing this illegally, and that on one of the big basis for this illegal transfer to this particular chief of police-this was Gila, incidentally-where they have psyched themselves up into a situation Mr. Earl was dealing with Chief Donald R. Lane as an individual and not as the chief of police in Gila County, because Don was a sergeant for Gila County. Earl dealt with him as an individual transferring an M-16 machinegun as an individual.
I would like to show you a county purchase order, a letter confirming it sent to the sheriff himself, another one sent to Sergeant Lane talked about the transfer and trade of firearms; another to Rex Davis pointing out what we were doing. And two of the firearms were subsequently canceled. Another to Rex Davis, transfers, signed by the ATF in Washington, of the guns; cancellation of the two. And it goes on.
This is what they said I was doing as an individual to an individual and not a department. It is page after page, all to the department not to an individual not to Don Lane, no one but to the department.
Senator McCLURE. Mr. Earl, just for the record, I think it is implied, but I want to make certain it shows positively on the face of the record that the charges they were making concerning this sale, that it was to him as an individual.
Mr. EARL. Yes.
Senator McCLURE. Those charges were made at a time subsequent to the correspondence and contacts you had had with ATF headquarters in Washington.
Mr. EARL. No; they were made after.
Senator McCLURE. The charges were.
Mr. EARL. They were made after the communication, after all this came out was approved by the ATF and all the signed approvals in here to the department. Now this is one of 141 other similar cases that I have made with the State of New York, all of the department of corrections in California, Boston City, Salt Lake City, Utah, Illinois, and it goes on, 141 of those, and every one of those it goes to an individual I have documentation on - all of them. The California trade was for 1,700 guns. Here, this is one individual. It is unreal. I am sorry if I am losing my cool.
Senator McCLURE. That is all right. That is what these hearings are for.
Mr. EARL. It is too much to take an hour, 5 hours, 20 hours to explain.
Senator McCLURE. That is why I would ask if you would provide some of the past contacts you have regarding the information you have. It would be very helpful if you could identify agents involved. You have not been indicted.
Mr. EARL. The reason I have not been indicted is because I insisted on bringing this information to the grand jury personally. It took me four fired attorneys. Yes; I will see what I can do.
Senator McCLURE. How much money have you spent on this?
Mr. EARL. I have spent in excess of $20,000 to date, and a lot of blood and sweat and I am a little neurotic from it. I have lost an awful lot of business, uncalculable, and I have lost friends.
I have a friend, Kelley Sanderson an FBI agent who is in a photograph picturing a miniature Thompson. He was ordered officially to not contact me, not have anything to do with me, and this was a direct result of an ATF visit to him. It is a sore deal
Senator McCLURE. What kind of visit was made to him?
Mr. EARL. They approached him at his office and wanted a statement against me. First, they wanted him to identify himself in one of my advertisements as he was the person in one of my advertisement. He said, "Yes; it was." This is a flyer I send out with a picture of a miniature Thompson submachinegun. On the back of it, it explains the gun and how it was made. It is a collectors' item. I took a picture of Kelley and his little boy, father and son, the kid holding the miniature and Kelley holding the big one.
They demanded a statement why would he allow himself to be photographed, used in my book and advertising my brochure, which I have been putting out since 1966. It gets bigger every year. But this is a national advertisement, and it is 34 pages of information.
Also, incidentally, of the 43 guns, typewriter, and records taken, nothing has been returned, even though no charges have been filed and even though the grand jury gave me a clean bill. Nothing has been returned, and they have put them up for destruction, which we are fighting. Of the guns I got from the chief of police, they were advertised in the flyer. They are expensive, and these guns are brand new.
Senator DECONCINI. Mr. Earl, I have to proceed with the other witnesses. Just finish what happened with the FBI agent.
Mr. EARL. Today, he calls me maybe once every 6 months to see if I am alive. He is scared to death he will be transferred to Timbuktu.
Senator DECONCINI. Did he tell you that he was told not to have any contacts with you?
Mr. EARL. He has two written documents in his file ordering him.
Senator DECONCINI. What is his name?
Mr. EARL. Kelley Sanderson.
Senator DECONCINI. I have no further questions.
Mr. EARL. One more thing in passing. Have you gentlemen seen this?
Senator DECONCINI. No.
Mr. EARL. What I have here, this is the top of a law enforcement magazine. It is a national police magazine. I cut one of their pages and superimposed it above there. I would like you to look at the photograph. That is a tough looking guy with a Nazi helmet and Luger. "You know I was with ATF. Was it something I said."
This reflects a lot, a great preponderance of local and small police and other agency views on the ATF. In other words, what they are saying there s they are Gestapo agents, and the way I was handled I concur 100 percent.
Senator DECONCINI. How do you respond to the fact that a number of prosecutorial units hold the BATF in high regard as far as their operations with organized crime and gun running?
Mr. EARL. I think they have loaded people, just like they buy the news media. I can show you 8 days of solid blasphemy on me, 8 days in our local newspaper headlines.
Senator DECONCINI. Are you saying the Attorney General and prosecutors that speak highly of ATF have been bought off in mentioning gun smuggling and organized crime?
Mr. EARL. Show me what they have done to gun smuggling into Mexico, where they are prosecuting the criminal. How about the two illegal Thompsons that were never looked into? Show me where they are doing it, and I will go along. I was brainwashed for many years. I thought they were great. They drank my beer and watched television. Kavanaugh is one of the greatest. But he didn't follow up that case. They have all been nice to me.
Senator DECONCINI. The only thing is, you left an inference there that most all of law enforcement did not feel that ATF had any credibility.
Mr. EARL. Including the FBI.
Senator DECONCINI. I have contradictory evidence that the Attorney General's organized crime unit in Arizona, a prosecuting attorney in Phoenix, where they had dealings with ATF, they indicate in the area of smuggling guns, particularly into Mexico in trade for drugs, they have had good relations and good effective law enforcement with ATF.
Mr. EARL. Two things in closing I would like to say. No. 1, I do feel I stand a great risk of retaliation in what I am telling you people regardless of what you say and regardless of what they say. These people do not play fair. They have lied to me. They have tried to set me up. They have tried to destroy my good faith.
Senator DECONCINI. Regarding that statement I am not in law enforcement; I cannot give you immunity; I cannot direct them not to take retaliatory efforts toward you. But I would like to know if that occurs, personally, and I am sure Senator McClure will join me in whatever efforts we can take.
Mr. EARL. I have presented myself to the U.S. attorney under the same light as here-no amnesty, no promises, everything 100 percent on the line-and he wouldn't talk to me about it. The last thing, since this is a probe, I would like, with your permission, to play you a tape of a telephone conversation with Louise Thorenson, where she was offered $5,000 to set up a bunch of dealers. I quickly got my tape out. It is about 1 minute.
Senator DECONCINI. Please identify Louise Thorenson.
Mr. EARL. Bill and Louise Thorenson made quite a lot of headlines about 7 or 8 years ago. They all started dealing with me. Bill eventually got a little paranoid, played the illegal field a while and ended up getting killed. Louise was his widow. At any rate, she phoned me one evening and told me ATF was coming to me. Oliver Hines had been to her house. She goes on to tell me how he left his gun hanging. We will get to the nitty-gritty. It was an offer of this money to buy material to set up other dealers. She did not know I was recording.
Senator DECONCINI. Mr. Earl, I didn't get the significance of that. I would like to have an opportunity to have that transcribed. If you want to leave it with us, I will have someone do it in my office.
Mr. EARL. The significance of it is that they offered her $5,000 of taxpayers' money to try to set up a bunch of people.
Senator DECONCINI. I gathered that. We will take a 5-minute break.
Senator McCLURE. Mr. Chairman, before the break, the memorandum from which I read earlier and to which I made reference will be made a part of the record.
Senator DECONCINI. Yes.
Senator DECONCINI. Mr. Earl, I wish to express my appreciation to you for your testimony. If Mr. Lindsey will come up to the table, we will hear from him next. We will take a 5-minute break at this time. [A brief recess was taken.]
FLORIDA GUN DEALER
STATEMENT OF R. C. LINDSEY, STUART, FLA.
Senator DECONCINI. The committee will come to order. We will hear from Mr. Lindsey. Mr. Lindsey, please identify yourself and give us some background on your difficulties.
Mr. LINDSEY. Thank you, Senator. I am R. C. Lindsey from Stuart, Fla. I appreciate very much the opportunity to be able to talk to you here. Any time you have any questions, please feel free to interrupt me.
Senator, I am a gun dealer, regular firearms licensed gun dealer. My license was due to expire on August 3, 1974. On August 14, 1974. they declined to renew it. They sent a special agent to visit me by the name of George R. Truit, from Orlando, Fla. He was in my place of business on June 11 to inspect my records. He was very critical very nasty, very arrogant
He said my records were not properly bound. He said that the forms weren't properly filled out. And, in consensus, when he left my place of business he told me, "Mr. Lindsey, if you want to keep your gun license, I will see to it you have to hire a lawyer."
Well, gentlemen, Mr. Truit was right. He did see to it that I would have to hire a lawyer-and I still have my gun dealer's license, too. I think the particular significance is that I have a document here. On the 19th of July 1974, Mr. McDivit noted down here, he said it didn't seem that I was really a gun dealer because I had only sold three guns, and to forward it to regional counsel.
This was the 29th of July of 1974. They took my license away on August 14 of that year. They refused to renew it. I demanded a hearing. They granted me that request. They set up a hearing in Miami on November 12, and guess who the judge was for that hearing? In full appreciation of all judicial fairness, BATF appointed Mr. McDivit as the trial hearing officer and judge. This was the same Mr. McDivit that some 3 months before had noted he didn't think my license should be renewed. They held this hearing on November 12.
Senator DECONCINI. Did you object to his being the hearing officer, Mr. McDivit being the hearing officer?
Mr. LINDSEY. No, Senator. All this information came about later on, which I sought through the Freedom of Information Act.
Senator DECONCINI. This was not a hearing where you appeared?
Mr. LINDSEY. Yes; I appeared, but I had no idea that behind my back these people were setting the stage to take away my license, and that they were pulling the dirty pool like choosing the same man for judge or officer that some 3 1/2 months prior had already reached an opinion on it.
Senator DECONCINI. When you appeared before Mr. McDivit for the hearing, weren't you awfully concerned about the fact that he bad been--
Mr. LINDSEY. Perhaps I am not making myself clear. I never acquired these records until the following March.
Senator DECONCINI. You didn't have any contact with Mr. McDivit prior to the hearing.
Mr. LINDSEY. At the time the hearing was held, I had no idea they were pulling this.Then this Mr. McDivit, as the official hearing officer, wrote a report, based on this hearing supposedly, on December 4, which he sent to regional counsel stating they had indicted me on four different counts, and he concludes. He says, "I therefore conclude the applicant willfully violated the provisions of the Gun Control Act of 1968 and does not qualify for licensing. I recommend the denial of notice of application."
Then they sent one to me. When we had these hearings on these four indictments that they had me indicted under, at the time of the hearing, they agreed that No. 3 of the indictment was wrong. A Government attorney, Mr. Yarrow, agreed that part of the indictment should be dropped.
So this final decision, which was done the 6th day of January 1975, and signed by Mr. John L. Piper from the regional office in Atlanta, said, "I find the licensee, R. C. Lindsey, willfully violated the provisions of the Gun Control Act, and the four counts will stand." Supposedly, this man, acting as a supervisor out of Atlanta, reviewed this tape, and based on what was on the tape he reached a conclusion my license should be denied. He couldn't have possibly went on the tape or reviewed the records, they dropped one of these counts.
Then I wrote to them about it. This time, Mr. Griffin, out of the Atlanta office, issued an amended decision of denial, and this time they concluded they found me guilty on only three counts. Then I started attempting to obtain information from them through the Freedom of Information Act. I asked on the 16th of January for these records from them, under the Freedom of Information Act.
It took them 53 days to supply me with part of these records. And I suppose you gentlemen are aware, according to the way the statute is now, once they deny your license, if you are going to seek judicial review, you have only 60 days. One of the Senators wrote to me and said that, "I concur that the delays were intentional" and he is referring to the BATF's delay in giving me access to the records they had. I had to appeal this all the way to the regional director in order to get copies of these records. It wasn't until after we filed this suit here that I acquired copies of these records. I gave these to my attorney and I said, "Something is wrong."
He looked at them and he said, "It sure is." It was so wrong that the Government attorney, Steven Burrow, out of the district court in Miami he thought it was so wrong that he agreed to this stipulation and order where the following bases for denial of plaintiffs application for renewal of plaintiff's license are hereby dismissed, and so on and so forth. And they dismissed what they indicted me on. This is a settlement-it never went to trial-signed by my attorney, the Government attorney, and Judge C. Clyde Atkins in Miami.
Senator DECONCINI. Does-that dismissal admit any guilt on your part?
Mr. LINDSEY. None whatsoever. The Government agreed I had done absolutely nothing wrong, and the Government agreed they would expedite my application for renewal of my license. And I would like for you to have a copy of this.
Senator DECONCINI. Yes; the record will have that printed therein.
[The information follows:]
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
No. 75-2426-Civ-CA
RICHARD C. LINDSEY, Plaintiff,
v. STIPULATION AND ORDER
WILLIAM E. SIMON, as Secretary of the Treasury of the United States,
Defendant.
RICHARD C. LINSDAY and WILLIAM E. SIMON, as Secretary of the Treasury of the United States, by and through their undersigned attorneys, enter this Stipulation for Court approval:
1. That the following bases for denial of plaintiff's application for renewal of his firearms dealer's license are hereby dismissed:
a. Petitioner, while a licensed dealer, failed to have firearms records and firearms available for inspection by Alcohol, Tobacco and Firearms officers at all reasonable times on his business premises in violation of 18 USC 923(g) and 27 C.F.R. 178.23 and 178.121(b).
b. Petitioner, while a licensed dealer, failed to enter each receipt and disposition of a firearm in a Firearms Acquisition and Disposition Record and maintain such record in permanent bound form in violation of 18 USC 923(g) and 26 C.F.R. 178.121 and 178.125(e).
2. That plaintiff may make application for a firearms dealer's license and that the aforesaid bases dismissed herein shall not be considered in the granting or denial of said application.
3. That the only alleged violation arising from the prior denial of plaintiff's renewal application which will be considered in a future license application is whether plaintiff intends, within a reasonable time, to bona fide engage in the business of selling firearms or ammunition at wholesale or retail, or the business of repairing firearms or of making and fitting special barrels, stocks or trigger mechanisms to firearms, or the business of a pawnbroker, as provided in 18 USC 921(a)(1) and 923(d)(1)(F).
4. That the processing of said application will be expedited without regard to past differences between the parties in furtherance of this amicable settlement between them.
5. That the Court may dismiss the action without prejudice to the Plaintiff.
BRIGHAM & BRIGHAM ROBERT W. RUST
846 Drickell Avenue UNITED STATES ATTORNEY
Miami, Florida 33131
[signed] [signed] John Steven Berk By: Dana P. Brigham Assistant United States Attorney 14 N. E. First Avenue Miami, Florida 33132
ORDER
THIS CAUSE having come before me by stipulation by and between the parties hereto, and the Court being otherwise duly advised in the premises, it is hereby ORDERED THAT: The Stipulation set forth above is approved and the Petition of the Plaintiff in the above-styled cause is hereby dismissed without prejudice. DONE AND ORDERED this 11 of December 1975.
C. Clyde Atkins UNITED STATES DISTRICT JUDGE
Mr. LINDSEY. Also, I would like to make particular note to you the manner in which they evaded an effort to acquire these records through the Freedom of Information Act. I think it was a travesty on justice, why BATF didn't acknowledge my simple request; turned them over to me. All this wasn't exactly cheap. It cost me over $4,000 just in attorney's fees to get my gun dealer's license back. And these guys sit there and scratch their back and say they have done a good job.
No; they haven't done a good job. And I certainly hope there is something that can be done to keep them from taking our tax dollars and spending it for something like this, and making me dip deep down in the till, right at the time when one of my children was having a very serious medical problem. I had to go through all this to-do just to finally get them to say to the court "We were wrong and this man is right."
Also, I want to point out, very briefly, I know another man who has a gun office only about a mile or so away from me that took him almost a year to get his license back, simply because the county and Post Office Department changed the number on his building that he did business from.
Senator DECONCINI. Can you tell us his name?
Mr. LINDSEY. His name is George Osborne from Port Salerno, Fla. I don't know how many other cases there are around, because I hear other people talking, but I don't have documentation on it. But this is on policy for BATF to harass people. It is common policy for them to try to force them into court. I have a letter here written to a very distinguished Senator from Mr. Davis saying that he is sorry, but if I don't like it, I can go to court.
Senator DECONCINI. Do you have your license back now?
Mr. LINDSEY. Yes, sir; I do.
Senator DECONCINI. Have you ever had any arrests before?
Mr. LINDSEY. Never had any arrest; no, sir.
Senator DECONCINI. Have you had run-ins with BATF before this incident?
Mr. LINDSEY. Never.
Senator DECONCINI. Have you ever had any complaint filed against you, to your knowledge, by any law enforcement official or any citizen?
Mr. LINDSEY. Some of the guns I sell are to law enforcement people. I have very good rapport, put my feet under the desk of our local chief of police.
Senator DECONCINI. Have you ever had any dealing with BATF from the standpoint of informant or been asked to participate in any manner?
Mr. LINDSEY. No. They steer clear of me. I guess I am too hot to handle. I don't know.
Senator DECONCINI. Well, you are a good man to fight for your rights. It is a shame that you have to forfeit $4,000 to have the right to participate in your profession. I have no further questions.
Senator MCCLURE. I have no questions. I want to commend you for having stood up for your rights. But it is too bad that a citizen has to do that. I have had legislation pending for a long time that says a citizen who has to go into court to defend himself against a charge by the Government for asserting his right under the law, and was proven right the Government would have to pay all his expenses, including attorneys' fees. I think it is a perfect example of why that is necessary, when the Government becomes abusive as they have.
Senator DECONCINI. If the Senator will yield, that bill will be up before the full Judiciary Committee in the next week, called the equal access bill.
Senator MCCLURE. I might say, in July 1965, in hearings before the House, Mr. Cohen, testifying then-and this is before the Committee on Ways and Means in the House of Representatives-Mr. Cohen said, "We would intend to develop regulations." In 1975, when Mr. Davis responded to Senator Chiles regarding your inquiry, he indicated that they have regulations. As a matter of fact, they still don't have regulations defining what a dealer is.
Mr. LINDSEY. I am sorry that Lawton is not here this morning. because when this transpired he and I had extensive correspondence, and he did a lot of work for me on it.
Senator DECONCINI. I think it is very important that the record show that Senator Chiles has been a moving force in this committee of restricting the BATF from implementing some of their efforts to register guns and also urging them to make some clarifications and definitions, which they have failed to do, to my knowledge.
Senator MCCLURE. I might say, in that letter Mr. Davis sent to Senator Chiles, it includes this statement: "The inspection revealed that Mr. Lindsey sold only 3 firearms since the time he was first licensed. Therefore, he is not a dealer."
In January of 1977, they revoked a license of Mr. Mulcahey in South Carolina and then prosecuted him for not having a license and said he had to have a license because he had made three sales. We can make dozens of such references to the inconsistencies in BATF, and precisely that issue. And that is why, whether or not they have regulations, defining a dealer is of importance, and they still have not made any such definition. They apply whichever way is convenient to them at the time.
Mr. LINDSEY. That is part of their continued policy of harassment and abuse. Why they do it, I don't know. But sometimes it makes me want to go outside and look and see if the flag is still flying.
Senator DECONCINI. I don't blame you. Thank you. Our next witness will be Mr. Jensen. Mr. Lindsey, let me encourage you to contact me or Senator Chiles in the event you are bothered by the BATF as a result of this testimony. I want to thank you very much for coming forward today.
Senator MCCLURE. Mr. Lindsey, do you have a letter with respect to Mr. McDivit's involvement?
Mr. LINDSEY. McDivit has a handwritten note.
Senator MCCLURE. He became the administrative law judge. Do you have a copy of it that we might file for the record?
Mr. LINDSEY. Yes, sir.
Senator MCCLURE. Thank you very much.
Mr. LINDSEY. That is where he said I should lose my license, 3 1/2 months before he was the trial judge on the record.
Senator DECONCINI. The record will show that at the appropriate place.
[The letter follows:]
RE: R. C. Lindsey, Linsdey Gun Shop Held Court Stuart, Fla., July 29, 1974.
MR. McDevitt: SA Truitt states that the above licensee has failed to maintain adequate records and recommends that renewal of dealer license be denied.
SA Truitt also stated that he had tried to contact Mr. Lindsey on six or seven occasions, but Mr. Lindsey was not available for interview for inspection of transaction records, SA Truitt had left message with Mr. Lindsey's secretary for Mr. Lindsey to contact him, but Mr. Lindsey never returned the call. Should we send this file to regional counsel for their decision in denying application?
P.S. It does not seem this man is engaged in the business if he has only sold 3 firearms since his license was issued in 1969. Send to regional counsel for an opinion.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CIVIL ACTION NO. 75-343-Civ-CA
RICHARD C. LINDSEY,
Plaintiff,
VS. PETITION FOR REVIEW OF DENIAL OF FEDERAL FIREARMS LICENSE APPLICATION WILLIAM E. SIMON, as AND DECLARATORY JUDGMENT Secretary of the Treasury) of the United States,
Defendant.
COMES NOW the Plaintiff, RICHARD C. LINDSEY and would show unto this Honorable Court that:
1) This is an action for review of denial of Federal Firearms License Application and for the granting of Application for a Federal Firearms License and for Declaratory Judgment.
2) Jurisdiction is invoked in accordance with 18 USC 923 (F)(3) and Plaintiff is a citizen and resident of Martin County, which is within the jurisdiction of the Southern District of Florida.
3) Plaintiff is a 40-year-old male, born free in Pennsylvania, United States of America, into a family whose father made the livelihood for and supported the family solely by hunting, trapping and fur trading in or about the Shenandoah Valley, as Pennsylvanians had done for 100 years or more. During Plaintiff's early years, Plaintiff contributed to the family support and livelihood by running trap lines in the middle of winter before going to school in the morning. Prior to graduation from high school, Plaintiff had his own trap lines, owned his own rifle and was granted by the United States Government a Federal Firearms License with which he conducted a firearms business, as shown in part by samples of his business stationery, attached hereto as composite Exhibit A.
4) Plaintiff annually renewed his Federal Firearms License for many years, until he left home to honorably serve his country in the United States Army, during which time Plaintiff participated on the Fort Knox Pistol and Rifle Club and won, in 1958 and 1959, the following trophies for marksmanship.
5) Upon honorable separation from the United States Army, Plaintiff eventually settled in or about Stuart, Florida and again applied for and received from the United States Government Federal Firearms Licenses, which were annually renewed for many years and which were issued in the name of Plaintiff, true copies of which are attached hereto as Exhibit B, and at all relevant times hereto were displayed on the wall of his business office,
6) With his own time, attention, labor, skills and abilities, Plaintiff constructed several buildings in the quiet countryside south of Stuart, Florida, one of which was constructed to become premises from which he has conducted business subject to license under 18 USC Chapter 44, and from which he intends to conduct such business within a reasonable period of time as determined by this Honorable Court.
7) In addition to conducting a firearms business during all relevant periods hereto, Plaintiff conducts a plumbing business with five employees over which he must maintain strict control. Plaintiff is open for business between the hours of 8:00 AM to 5:00 PM and, when not physically present, maintains constant radio contact with his office by two-way radio to who is also his secretary.
8) Plaintiff has never willfully violated any provision of the Firearms Law and to insure strict control and his lawful compliance, he has never delegated any authority under any of his Federal Firearms Licenses and he confines his business to persons known to him and does not deal with strangers and intentionally has kept the volume of his acquisition and sale of firearms at a minimum to facilitate his personal inventory control, by means of which he can personally trace each and every acquisition and sale of firearms, and during the period of his licenses, shown in Exhibit B, he has sold only to officers of the law or their immediate families.
9) Now, for the first time in over twenty (20) years since his first Federal Firearms License was issued to him and after more than twenty (20) years of expertise developed by devotion of his time, attention and labor for the purpose of livelihood or profit, Plaintiff has been denied a renewal of his license because he is accused of wilfully violating the provisions of the Gun Control Act of 1968 and the regulations promulgated thereunder and not being bona fidely engaged in the business described under the act. These accusations are denied as false and without foundation and clearly erroneous.
True copies of these accusations are included in the following, which are attached hereto as composite Exhibit C:
a) Notice of Denial of Application for License, dated August 14, 1974
b) Decision of Denial of Application for Firearms License, dated January 6, 1975
c) Final Notice of Denial or Revocation of License, dated January 6, 1975
d) Amended Decision on Denial of Application for Firearms License, dated January 29, 1975
10) The circumstances surrounding this litigation will bring life to the language of the United States Supreme Court in the case of Olmstead v. United States, 277 U.S. 438, 478 (1928), wherein Justice LOUIS D. BRANDEIS stated:
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding."
11) The preliminary hearing conducted in furtherance of composite Exhibit C and composite Exhibit C itself will, when properly presented to this Honorable Court by a trial de novo, show that the causes of this litigation are misunderstanding, lack of communication and misinterpretation regarding matters of form as distinguished from matters of substance and further, that willfully violating and concealing would apply only to substance, not form.
12) Plaintiff seeks a declaration from this Honorable Court concerning the form to use to satisfy the law, and Plaintiff represents to this Honorable Court that clarity would be welcome relief and meticulously followed and is necessitated because the requirements of the regulation relevant hereto are unconstitutionally vague.
13) Plaintiff at all times relevant hereto has had records maintained under the Federal Firearms Act, which readily disclose his inventory of firearms.
WHEREFORE IT IS PRAYED that this Honorable Court will grant relief to Plaintiff by its order allowing the approval of Plaintiff's Application for a Federal Firearms License and to disclose what forms, reports and records that Plaintiff is required to keep, preserve and hold ready for inspection during all reasonable business hours and all other relief deemed just in the premises.
LITTMAN & BIGGS, P.A. 55 East Ocean Boulevard Stuart, Florida 33494
BRIGHAM & BRIGHAM
Brigham Building
846 Brickwell Avenue
Miami, Florida 33131
(305) 373-6417
Attorneys for Plaintiff
By: DANA P. BRIGHAM
Notice of Denial of Application for License - R. C. Lindsey
d/b/a Lindsey Gun Shop
Held Court
Stuart, Florida 31494
Under the provisions of Title 18 U.S.C., Section 923(d), and 26 CFR Section 173.47 you do not qualify for licensing under Title 18 U.S.C.. Chapter 44. because of the following:
COUNT ONE
The applicant, R. C. Lindsey. d/b/a Lindsey Gun Shop, is not entitled to a license as a dealer in firearms other than destructive devices or ammunition for other than destructive devices as the applicant wilfully violated the provisions of Chapter 44, Title 18 U.S.C., and regulations prescribed thereunder, in that being a licensed dealer in firearms during the period from or about July 23, 1973 to on or about June 11, 1974, he failed to have firearms records and firearms available for examination and inspection by officers of the Bureau of Alcohol, Tobacco and Firearms at all reasonable times on his business premises as required by 18 U.S.C., Section 923(g) and 26 CFR, Sections 178.23 and 178.121(b).
COUNT TWO
The applicant, R. C. Lindsey, d/b/a Lindsey Gun Shop, is not entitled to a license as a dealer in firearms other than destructive devices or ammunition for other than destructive devices as the applicant wilfully violated the provisions of Chapter 44, 18 U.S.C., and regulations prescribed thereunder, in that being a licensed dealer in firearms during the period from on or about October 28, 1969 to on or about June 11, 1974, the applicant failed to enter each receipt and disposition of a firearm in a Firearms Acquisition and Disposition Record and maintain such record in permanent bound form, as required by 18 U.S.C., Section 923(g) and 26 CFR, Sections 178.121 and 178.125(c).
COUNT THREE
The applicant, R. C. Lindsey, d/b/a Lindsey Gun Shop, is not entitled to a license as a dealer in firearms other than destructive devices or ammunition for other than destructive devices as the applicant wilfully violated the provisions of Chapter 44, 18 U.S.C., and regulations prescribed thereunder, in that being a licensed dealer in firearms during the period from on or about October 28, 1969 to on or about June 11, 1974, the applicant sold or otherwise disposed of and transferred firearms to persons other than licensees and did not obtain from the transferee properly executed Firearms Transactions Records (Form 4473), properly record the transactions in such records, and maintain such records as required by 18 U.S.C., Section 923(g) and 26 CFR, Sections 178.121 and 178.124.
COUNT FOUR
The applicant, R. C. Lindsey, d/b/a Lindsey Gun Shop, is not entitled to a license as a dealer in firearms other than destructive devices or ammunition for other than destructive devices as the applicant is not bona fide engaged in, and does not within a reasonable period of time intend to bona fide engage in the business of selling firearms or ammunition at wholesale ore retail, or the business of repairing firearms or of making and fitting special barrels, stocks or trigger mechanisms to firearms, and is not a provided broker as provided in 18 U.S.C., Sections 921(a)(11) and 923(d)(1)(E).
THE DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
IN RE: R. C. Lindsey CERTIFIED NO. d/b/a Lindsey Gun Shop Held Court SE:R:TF:CK Stuart, Florida 33494
DECISION ON DENIAL OF APPLICATION FOR LICENSE
Pursuant to request by and notification to licensee in accordance with Section 178.72, Title 26, Code of Federal Regulations and with Section 923(f)(2), Title 18, United States Code, a hearing to review the denial of application for firearms license in the captioned case was held before Hearing Officer J. E. McDewitt in Room 331, Federal Office Building, 51 S. W. First Avenue, Miami, Florida on November 12, 1974. The hearing began at 10:00 A.M. with Attorney Arnold Yorra, Regional Counsel office, Bureau of Alcohol, Tobacco and Firearms, Atlanta, Georgia, representing the government.
I have considered all the facts and circumstances presented by the government and the licensee at the hearing, the proceedings of which were tape recorded. I find that the licensee, R. C. Lindsey, wilfully violated the provisions of the Gun Control Act on four counts. These counts shall stand.
I conclude that the licensee willfully violated the provisions of the Gun Control Act of 1968, and does not, therefore qualify for licensing.
The Denial of Application for Firearms License of which applicant was notified on October 8, 1974, shall stand.
Done this 6th day of January, 1975, at Atlanta, Georgia.
[signed] John L. Piper Acting Regional Director
THE DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
IN RE: R. C. Lindsey CERTIFIED NO. d/b/a Lindsey Gun Shop 34973 Held Court SE:R:TF:CK Stuart, Florida 33494
AMENDED DECISION ON DENIAL OF APPLICATION FOR LICENSE
Pursuant to request by and notification to licensee in accordance with Section 178.72, Title 26, Code of Federal Regulations and with Section 923(f)(2), Title 18, United States Code, a hearing to review the denial of application for firearms license in the captioned case was held before Hearing Officer J. E. McDewitt in Room 331, Federal Office Building, 51 S. W. First Avenue, Miami, Florida on November 12, 1974. The hearing began at 10:00 A.M. with Attorney Arnold Yorra, Regional Counsel office, Bureau of Alcohol, Tobacco and Firearms, Atlanta, Georgia, representing the government.
I have considered all the facts and circumstances presented by the government and the licensee at the hearing, the proceedings of which were tape recorded. I find that the licensee, R. C. Lindsey, wilfully violated the provisions of the Gun Control Act of 1968 as alleged in Counts One and Two of the Notice of Denial of Application for License; and that the licensee is not bona fide engaged in and does not intend within a reasonable period to bona fide engage in the business of a licensee as alleged in Count Four of the said Notice.
Count Three of the Notice of Denial of Application for License was dismissed upon motion of the Government attorney at the hearing and said Count Three is, therefore, disposed of and not a basis for this decision.
I conclude on the basis of the findings sustaining Counts One, Two and Four of the Notice of Denial of Application for License that the applicant does not qualify for licensing under the Gun Control Act of 1968.
The Denial of the Application for License of which applicant was given Notice on August 14, 1974, and Final Notice on January 6, 1975, shall stand.
Done this 29th day of January, 1975, at Atlanta, Georgia.
[signed] William N Griffin Regional Director