US v. Friesen: Acquittal/Mistrial
October 1st, 2008
The jurors in US v Friesen informed the Honorable Judge Leonard that they acquitted Mr. Friesen on the single charge of lying about the safe in his office but they were hopelessly deadlocked on the remaining charges, apparently, 7 to 5. While the Honorable Judge Leonard spoke with the jurors tonight, he will not contact the parties until tomorrow with regards to the basis for the deadlock. This means that the Government can decided to re-try the case, minus the lying about the safe in his office charge, or allow the mistrial to stand. If the Government decides to re-try the case, such would not occur until at least the Spring of 2009.
The one big factor was the BATFE shot itself in the foot on this one because ERB registered a LOT of gun, all marked differently and all in different fonts…etc. There is no one or two ways that ERBmarked and registered its guns. The BATFE went out and photographed about 20 guns (the legality of the BATFE using the NFRTR for this purpose is left for another article and the courts), all of which showed these different markings. The US Prosecutor was not happy about having to turn them over in discovery.
The BATFE has a LOT more to lose by retrying this case then letting it slip by. Moreover, just because the criminal case ended in an acquittal/mistrial, does not mean they cannot bring a forfeiture action to keep the gun.
The transcripts from this trial have already been ordered and will be made available as soon as possible. The transcripts are expected to be several hundred, if not a thousand, pages.
Inaccuracy of the NFRTR: US v. Friesen
September 25th, 2008
In my previous blog posting, I discussed that Dr. Fritz Scheuren had testified that the National Firearms Registration and Transfer Record (NFRTR) was insufficient for criminal proceedings. This testimony was taken in the case of US v. Friesen (5:08-cr-00041-L) in the United States District Court for the Western District of Oklahoma. Since this case has generated a lot of interest, I am posting the trial documents below:
US Motions and Documents
US Motion to Introduce Evidence
US Motion in Limine re Inaccuracy of NFRTR
US Proposed Jury Instructions
US Motion to Compel
US Motion to Compel Exhibit (AG)
US Protective Order Motion
US Motion to Exclude Len Savage
US Stipulations
Friesen Motions and Documents
Motion to Strike A/K/A
Motion to Dismiss for Duplicity
Friesen Affidavit
Motion to Suppress
Motion to Suppress Attachments
Motion for Evidentiary Hearing
Friesen Proposed Jury Instructions
Court Decisions
Decision on Motion to Suppress
Decision on Protective Motion
The NFRTR is INSUFFICIENT for Criminal Proceedings
September 24th, 2008
In a major victory for those of us arguing that the National Firearms Registration and Transfer Record (NFRTR) is insufficient for criminal proceedings, Dr. Fritz Scheuren, “the” statistician in the United States (possibly the world), today informed the United States District Court, Western District of Oklahoma, (The Honorable Tim Leonard) that the NFRTR is insufficient for criminal proceedings. While no decision has been rendered in the case of US v. Larry Douglas Friesen (CR-08-41-L), this is aMAJOR defeat for the BATFE, who, over the years, has argued that although the NFRTR is flawed, it still can be used in criminal proceedings. To understand just how flawed the NFRTR is, see my article on the NFRTR violating Due Process.
The defendant, Douglas Larry Friesen, is apparently an attorney and his law firm’s website is believed to be: http://www.dougfriesen.info/
If the US loses this case, there is some speculation on whether the BATFE will seek to appeal the decision because an appellate ruling that the NFRTR is insufficient would have disastrous consequences for the BATFE and the NFRTR. It is this author’s opinion that the BATFE would likely not appeal so to protect the integrity of the NFRTR in other court proceedings. Nevertheless, in any future cases, a competent attorney will be adding Dr. Scheuren as an expert to invalidate the NFRTR.
UPDATE: Documents have been posted
One of the original news articles on this case stated the facts below:
From the McCarville Report:
By Jerry Bohnen, NewsRadio 1000 KTOK ~ A federal grand jury has returned indictments of lying and illegally possessing a machine gun against Oklahoma City attorney Doug Friesen, who teaches conceal-carry courses at a local gun range.
The 56 year old Friesen is accused of lying to agents of the Alcohol, Tobacco and Firearms Bureau in 2003 that he was the registered owner of a 9-mm machine gun found in his law offices at 1309 North Shartel. He is also charged with possessing the unregistered Sten 9mm machine gun.
The incident occurred on March 4, 2003 and Friesen told agents that he had only three places within his office building where firearms were stored. But the indictment says the agents learned that Friesen stored firearms in a secret location behind his book shelves on the first floor library of the office building.
Five separate counts were returned by the federal grand jury.
If Friesen is convicted, he could face up to 5 years on the charge of lying to the ATF agents and ten years for knowingly possessing an unregistered machine gun.
The Sten submachine gun, made in Great Britain, was a World War II weapon popular for its ease of operation and durability. Today, World War II versions are collector items worth $5,000 or more. It was produced in several configurations.
BATFE Engraving Requirements for a Short-Barreled Rifle/Shotgun (SBR – SBS)
September 10th, 2008
The BATFE has promulgated regulations regarding the manufacture of a class 3 firearm. Specifically, the requirements for identification/engraving are set forth in BATFE Publication 5300.4 -27 CFR 479.102
The regulation specifies that any gun manufactured, imported, or made on and after January, 2002 must have the manufacturers information engraved, cast, stamped by impression, at a minimum depth of .003″ with a height no smaller than 1/16″ on the frame, receiver, or barrel.
The required information on an Short Barreled Rifle (SBR) or Short Barreled Shotgun (SBS) is:
1. The model (if such one exists),
2. Caliber or gauge,
3. The manufacturer’s name (or recognized abbreviation), and if applicable
4. The city and state (or recognized abbreviation), where you as the manufacturer made the firearm, if it is domestically manufactured.
What Type of NFA Firearms Can I Own in PA?
September 8th, 2008
In Pennsylvania, a non-prohibited person can own the following firearms that are regulated the National Firearms Act
Machine Guns Silencers Any Other Weapon (AOW) Destructive Devices (DD) (excluding explosive devices) Short Barreled Shotguns (SBS) Short Barreled Rifles (SBR)
There are no NFA firearms, other than DD explosive devices, that you cannot own in Pennsylvania; however, depending on where you live, you may have problems acquiring a Chief Law Enforcement Officer (CLEO) signature. If you have problems acquiring a CLEO signature or think that a Gun (NFA) Trust might be a better solution for you, contact our office.
How are BATFE NFA Firearms Examiners apportioned?
September 3rd, 2008
When an individual submits a Form 1 (making a NFA firearm, other than a machine gun) or Form 4 (transfer of a NFA firearm), the applications are distributed among a group of BATFE NFA Examiners. The distribution of one’s application is based on the following rules/order: 1. If a governmental agency, first character of the state that the agency is in; 2. The first letter of the trade name of the Transferor; or 3. First letter of the Transferor’s last name.
The current Examiners are: Andrew Ashton, Ted Clutter, Nicole Dudash, Nancy Flanigan, Jason Frushour, Alan Lamberger, Barbara Payne, William (Butch) Shipman, and Sandra Snook. Their Supervisors (known as Section Chiefs) are: Rob Howard and Dawn Henson. At the current time, there is NO Branch Chief, the position is vacant and awaiting an appointment. There are several who have been filling in as Branch Chief. The contact number for BATFE Examiners in West Virginia is: (304) 616-4500; (304) 616-4501 (fax). The address is Bureau of Alcohol, Tobacco, Firearms and Explosives, National Firearms Act Branch, 244 Needy Road, Martinsburg, West Virginia 25405.
National Firearms Act Estate Planning 101
December 19th, 2007
As an estate attorney, how do you handle the planning of an estate, which includes National Firearms Act [NFA] firearms? What if your client asks you, prior to his/her purchase of a NFA weapon, what is the best form of ownership, with long term estate planning in mind?
This issue may plague estate attorneys, leaving them to scratch their head in bewilderment as to the correct course of action. More importantly, a probate attorney may be flirting with malpractice, since the registration of NFA weapons is mandatory and ignorance is not a defense.
To begin with, one must understand what a transfer of a NFA firearm entails and which registration entity best suits his/her client. The Bureau of Alcohol, Tobacco, Firearms and Explosives currently allows the registration of NFA firearms, by an individual, which is defined as A partnership, company, association, trust, estate, or corporation, as well as a natural person.1 The correct entity will depend on the clients current and future desires.
The transfer, of a NFA firearm, is defined as the, Selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of an NFA firearm.2 The lawful transfer/registration of a NFA firearm is dependent on the entity, which is registering the firearm. Moreover, certain entities allow for a prohibited person to buy and sell NFA Firearms, for economic purposes, which may be a determining factor in deciding which entity should be utilized.3 For the purposes of this article, I will deal with the requirements, benefits, and detriments of registering a weapon as an individual person, corporation, or trust.
The individual person looking to register a NFA firearm needs to file an application (BATFE Form 4, pg 172-74), in duplicate, to provide a two-hundred dollar ($200) registration tax, two sets of fingerprints, and two photographs.4 Furthermore, the individual must obtain the signature of a Chief Law Enforcement Officer [CLEO]. Acceptable certifying officials include chiefs of police, county sheriffs, heads of State police, State or local district attorneys, or such other persons whose certificates may in a particular case be acceptable to the Director.5 While the application requires that the individual person obtain a CLEO signature, nothing mandates that a CLEO must sign an application for a NFA firearm.6 Thus, many individuals, who cannot obtain a CLEO signature, register the weapon to their corporation or trust.
The benefit to the estate owning a NFA firearm is that, upon the death of the registrant, the firearm may be transferred to the specified heir, on a registration tax-free transfer (BATFE Form 5, pg 174-76).7 Moreover, the heir need not obtain a CLEO signature.8 The detriments are: 1) prohibited individuals may not own NFA weapons; 2) the registrant must always be in possession of the weapon; and 3) the individual must acquire a CLEO signature.9 As discussed in footnote 3, an individual person who is prohibited cannot obtain, even for economic purposes, a NFA weapon.10 A person who becomes prohibited during ownership, must relinquish ownership and possession of the weapon.
In a trust, the application must be submitted in duplicate, with the two-hundred dollar ($200) tax fee, but the trust is not required to submit fingerprints or photographs.11 However, the trust must currently submit the Certification of Trust, but may, in the very near future, require the Declaration of Trust.12 More importantly, a trust does not require a CLEO signature.13 Thus, in locales where the CLEO refuses to sign, the best option is either a trust or corporation.
The benefit to a trust is that: 1) the cost is incurred once, unless changes are required during the settlers life; 2) multiple individuals can be listed as the trustees;14 3) a trust will not fail for lack of a trustee, since the court will appoint one;15 and 4) if the transfer of NFA firearms becomes prohibited, the trust, if properly drafted, will continue to provide the NFA firearm(s) to generations to come. Nonetheless, there are several detriments: 1) in comparison to the registration of an individual person, the person must incur the cost of setting up the trust;16 2) there is no tax free death transfer, since the trust does not die; 3) while the trust ensures that a NFA weapon can continue to benefit future beneficiaries,17 those beneficiaries are limited, in comparison to a corporation; and 4) it requires an attorney with incredible foresight and understanding of trusts and firearms. For an in-depth review of NFA revocable trusts, see Bob Howell Esq.’s article.18
A corporation, like a trust, requires the same submission, but a copy of the Articles of Incorporation, Limited Liability Registration, or other documentation showing the registration of the corporation, in lieu of the Certification of Trust.19 The benefits to a corporation are numerous: 1) It is possible for a prohibited person to administer the corporation, but may not possess any of the firearms;20 2) the corporation may be sold, without transferring the NFA firearms;21 and 3) any listed officer or paid employee may legally possess the firearm. The detriments are several: 1) the individual has the initial setup cost of the corporation; 2) the corporation must file tax returns and other state required filings, annually and pay any fees incurred; and 3) a corporation does not offer the privacy of a trust.22
The long term foresight, for issues that may or are likely to arise in firearm trusts and corporations, is the cause of concern for individuals using Quicken Wills and Trusts. While this list is not all inclusive, some of the issues are: 1) who are listed as beneficiaries and trustees, for the long term; 2) what if a beneficiary does not want the benefit, or the trustee does not want the responsibility; 3) how to handle beneficiary living in another state, where such firearms may be banned, or where the BATFE requires a transportation form (BATFE Form 5320.20, pg. 185-186) to be filed;23 4) what if the beneficiary is prohibited; 5) how to handle numerous beneficiaries desiring the use of the benefit at the same time;24 6) how does the trust or corporation pay for damage to the firearm(s); 7) the trust/corporation’s liability if the firearm is used in a crime or accidental injury; 8) at what point, if any, is the firearm to be sold, and if sold, how should the proceeds be divided up; 9) where is the firearm to be kept; 10) is the trust/corporation responsible for ammunition, service, and maintenance of the firearms, and if so, through what pecuniary means; 11) what form of insurance must be maintained and by what means; 12) how is the trustee to be compensated; and 13) what if the beneficiary is a child? 25
While clients may balk at the cost of an attorney to setup a trust or corporation, unlike receiving a bad haircut, which can be rectified, the use of generic forms or software may cause the loss of the NFA weapon, at the time of the settlor’s death. It is crucial to explain to the client that by saving a few dollars today, they may be denying their future heirs that which that sought to protect.
Whichever entity is employed, it is crucial for the attorney to keep copies of all approved firearm registrations, since the National Firearms Registration and Transfer Record [NFRTR] is grossly inaccurate.26 The copy of the registration(s) may prove invaluable to a client facing prosecution for illegally possessing a firearm, with penalties of ten (10) years and up to two-hundred and fifty thousand dollars ($250,000).27 Since the circumstances of every client are different, the proper choice for registering a NFA Firearm, with regards to estate planning, is dependent on the weighing of the benefits and detriments. While the corporation route may offer the most benefits and protections, it is also the most costly.
_________________________________________________________________________________
1 27 C.F.R. 479.11 (2003)
2 26 U.S.C. 5845(j); However, in U.S. v. Kiefer, the court held that the criminal defendant had not transferred a NFA firearm in part, because he did not receive any consideration, which could have been regarded as evidence of his proprietary interest in transfers. U.S. v. Kiefer, 694 F.2d 1109, 1114 & n.3, 11 Fed. R. Evid. Serv. 1832 (8th Cir. 1982). The court continued, “The plain implication is that a transferor is one controlling the ultimate disposition of the weapons, not a person without such control performing the simple act of physically handing the guns to another. Moreover, Congress, by requiring payment of a tax and registration of the transfer, clearly intended to require that a transferor have more of a proprietary interest in the weapon than just the mere transitory physical possession of it.” (citing U.S. v. Hurd, 642 F.2d 1179, 1182 (9th Cir. 1982).
3 18 U.S.C. 922(g) (2005). (stating, “It shall be unlawful for any person–(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (2) who is a fugitive from justice; (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); (4) who has been adjudicated as a mental defective or who has been committed to a mental institution; (5) who, being an alien–(A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))); (6) who has been discharged from the Armed Forces under dishonorable conditions; (7) who, having been a citizen of the United States, has renounced his citizenship; (8) who is subject to a court order that–(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or (9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported interstate or foreign commerce.”) It must be noted that while the term “prohibited person” carries with it extreme prejudice, an individual may be prohibited if a restraining order has been issued against the individual. Since restraining orders are easily instituted, an innocent, law-abiding individual may become prohibited.
4 26 U.S.C. 5811; 26 U.S.C. 5812.
5 BATFE, ATF National Firearms Handbook, 59 (June 2007)(citing 27 CFR 479.85), available at http://www.atf.gov/publications/firearms/nfa-handb….
6 Lomont v. O’Neill, 285 F.3d 9, 15 (D.C. Cir. 2002). Although a CLEO is not required to sign, further litigation is expected. See, Stephen P. Halbrook, Firearms Law Deskbook, 537-541 (Thomson/West, 2007).
7 BATFE, ATF National Firearms Handbook, 57 (June 2007)
8 BATFE, ATF National Firearms Handbook, 57 (June 2007), available at http://www.atf.gov/publications/firearms/nfa-handb….
9 The issue of possession of a weapon is crucial to an NFA firearm owner, in a family, which wishes to share in the use of the firearm. When registered to an individual person, that person must always be with the firearm; thus, a father could not allow his son to take the weapon to the range. This can be circumvented where a trust and corporation registers the weapon.
10 Many individuals have found that investing in NFA firearms can yield extremely lucrative results.
11 26 U.S.C. 5812
12 http://www.silencertalk.com/forum/viewtopic.php?t=… (discussing a current post, by a BATFE examiner, stating that the BATFE may be requiring the Declaration of Trust, in the near future.)
13 BATFE, ATF National Firearms Handbook, 59 (June 2007), available at http://www.atf.gov/publications/firearms/nfa-handb….
14 Any individual listed as a trustee may lawfully possess the firearm.
15 David Goldman Esq., email correspondence on 9/17/2007.
16 Many individuals are buying Quicken Will and Trust Maker, which is of concern to firearms attorneys. While Quicken may be perfectly fine for a typical will or trust, there are specialized issues that one must consider for a NFA trust, such as: who should be a trustee, can a prohibited person be a trustee, what if the trust isn’t properly filed with the state, where required, and the absence of any other legal protections that a properly drafted trust may offer.
17 It must be noted that while the beneficiary receives the benefit of being able to use the NFA firearm, the trustee must always be in possession of the NFA firearm. Thus, anytime the beneficiary desires to use the weapon, he/she must be in the company of the trustee.
18 Bob Howell, Use of the Revocable Trust to Purchase NFA Items, available at http://floridashootersnetwork.com/phpbb/viewtopic…..
19 BATFE, ATF National Firearms Handbook, 29, 56 (June 2007), available at http://www.atf.gov/publications/firearms/nfa-handb….
20 Id. at 29. Thus, if a prohibited individual is interested, for economic means, in the purchasing and selling of NFA firearm, they may be able to, under a corporation.
21 This could be extremely beneficial if the Government ever prohibits the transfer of NFA firearms, since the corporation could be sold, without the transfer of any firearms.
22 David Goldman Esq., email correspondence on 9/17/07. Mr. Goldman also brought to my attention that a corporation, in comparison to a trust, requires more expensive commercial insurance.
23See Supra, FN 16.
24 Id.; Also, David Goldman Esq., email correspondence on 9/17/07, stating that Quicken or most trusts only give the Trustee the ability to divide assets when an equitable or nearly equitable distribution is created, it may be far more beneficial for a Trustee to make a distribution by piece when NFA weapons are involved.
25 David Goldman Esq., email correspondence on 9/17/07. Currently, the age to purchase a NFA firearm from a dealer is 21 years old; however, the BATFE has recently stated that an individual to individual transfer (meaning of the same state) of an NFA weapon may occur when the registering party is 18 years old, so long as, it is not in conflict with state laws. Such registrations have been approved by the BATFE. Another concern is the future disposition of a child, which may require a trustee to make a determination of whether the beneficiary, at the age specified, is mature or mentally able to handle the responsibilities of NFA ownership.
26 Deron Dobbs, Status Report National Firearms Registration and Transfer Record, 15 (1981), available at http://www.nfaoa.org/documents/DeronDobbs.pdf.
27 26 U.S.C.S. 5861(d),(j); 26 U.S.C.S. 5872; 49 U.S.C.S. 781-788.
Grandpop’s Machine Gun in the Chest, Part II
December 19th, 2007
As an estate attorney, have you ever made a determination that a cane or pen, in an estate, is not a firearm? Have you ever measured the length of a rifle’s or shotgun’s barrel? What about determining whether a 2 liter bottle is actually a sound reducing device for a firearm, classified as a silencer? After finding a shotgun, have you ever inquired as to whether it is classified as a destructive device? While some may be chuckling, I assure you that your client will not be when faced with up to ten (10) years in prison and two-hundred and fifty thousand dollars in fines.1
For purposes of this article, I will deal with Short Barreled Rifles (SBRs), Any Other Weapons (AOWs), Suppressors, and Destructive Devices (DDs).
A SBR is defined as a firearm [H]aving a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.2 To determine the length of a shotgun’s or rifle’s barrel, [T]he bolt or breechlock of the weapon should be closed, the weapon cocked, and a rod inserted down the barrel through the bore until it contacts the face of the bolt the rod should then be marked to denote the barrel end, withdrawn from the weapon and measured. 3 It continues, A barrel length so determine which is less than 18 inches in length on a shotgun or less than 16 inches on a rifle, will establish that the weapon comes within the purview of the National Firearms Act. 4Furthermore, the overall length of a shotgun or rifle is, [T]he distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore. 5 It must be noted that a pistol, with a shoulder stock, whether or not attached, may constitute a SBR. 6
An AOW is defined as, [A]ny weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.
Traditionally, AOWs included gadget devices, Nazi belt buckle firearms, and glove firearms. 7 Today, AOWs also include cane, cell phone, crutch, and pen guns, pistols with a vertical/forward grip, and other disguised firearms. Currently, the BATFE asserts that a pistol in a leather wallet holster is an AOW,8 which is contrary to 5845(e). However, any device which the Attorney General finds is primarily a collector’s item and is not likely to be used as a weapon, exempts that device from the purview of the NFA. 9
A suppressor/silencer is a device for Silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.10 Over the past decade, there have been some interesting devices determined to be suppressors. In Virginia, a fuel filter, which was modified to thread on the end of a .22 caliber rifle barrel, was a suppressor, because it reduced the noise of the gunshot. 11 Another interesting development is the registration of a thread adapter, which allows one to thread a 2 liter bottle onto a rifle or pistol. The BATFE is currently allowing individuals to register the adapter, but the 2 liter bottle, may constitute a part [I]n assembling or fabricating a firearm silencer or firearm muffler.12
A DD is defined as, (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled.13
In 1994, the BATFE ruled that non-sporting use shotguns were DDs, and thus, proclaimed the USAS-12, Striker-12, and Streetsweeper shotguns, DDs. 14 DDs, specifically explosive devices, may be cause for alarm, since the BATFE has prosecuted individuals for having smoke grenades,15 ground burst projectile simulators,16 firecrackers,17 and flashbangs.18 However, these should, and in many cases did, fall under the exception of any device which is neither designed nor redesigned for use as a weapon.19 As Mr. Halbrook States, There are numerous ordinary household products which, if assembled or intended to be assembled, may be destructive devices. While gasoline, bottles, and rags all may be legally possessed, their combination into the type of home-made incendiary bomb commonly known as a Molotov cocktail creates a destructive device.20
As is readily apparent, the issues of SBRs, AOWs, Suppressors, and DDs, in estates, are cause for concern, for any estate attorney. Surely, very few, if any, estate attorneys check a cane or pen of the decedent, but such could constitute malpractice, and one’s client being imprisoned and fined. As my grandfather, an 88 year old attorney, stated, I have never come across any machine guns or NFA weapons in an estate. Such is true, especially if you are not aware to look for them.
_________________________________________________________________________________
1 26 U.S.C.S. 5861(d),(j); 26 U.S.C.S. 5872; 49 U.S.C.S. 781-788.
2 26 U.S.C.S. 5845 (a). Furthermore, 5845(c) states: The term rifle means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.
3 Rev. Rul. 67-424, C.B. 1967-2, 464.
4 Id.
5 27 C.F.R. 179.11 (firearm).
6 See U.S. v. Zeidman, 444 F.2d 1051, 1052 (7th Cir. 1971); however, U.S. v. Thompson/Center Arms Co., 504 U.S. 505 (1992). However, the BATFE stated that certain pistols, with shoulder stocks, were removed from the NFA. Letter from C. Michael Hoffman, Assistant Director (technical and Scientific Services), BATF, May 29, 1981, T:T:F:CHB, 7540, reproduced by Stephen Halbrook, FIREARMS LAW DESKBOOK, 451-52 (Thomson/West 2007).
7 Bryan v. U.S., 373 F.2d 403, 406 n.4, 67-1 U.S. Tax Cas. (CCH) P 15742 (5th Cir. 1967), quoting 26 C.F.R. 179.35 (now repealed). 81 Stephen Halbrook, FIREARMS LAW DESKBOOK, 458 (Thomson/West 2007).
9 5845(a); While this section refers to the Secretary (of the Treasury), this was changed by the Homeland Security Act, which transferred the BATFE from the Department of the Treasury to the Department of Justice.
10 5845(a)(7).
11 Gray v. Com., 30 Va. App. 725, 729 (1999), judgment aff’d, 260 Va. 675, 678 (2000).
12 5845(a)(7). This poses an interesting problem of whether individuals need to register their soda bottles, or risk violating the NFA.
13 5845(a)(8).
14 ATF Rul. 94-1 and 94-2, ATFB 1993-94, 21-26.
15 U.S. v. Homa, 608 F.2d 407, 209 (10th Cir. 1979).
16 U.S. v. Dalpiaz, 527 F.2d 548, 551 (6th Cir. 1975).
17 U.S. v. Worstine, 808 F. Supp. 663, 664 (N.D. Ind. 1992).
18 Stephen Halbrook, FIREARMS LAW DESKBOOK, 471 (Thomson/West 2007).
19 5845(a)(8).
20 Stephen Halbrook, FIREARMS LAW DESKBOOK, 472 (Thomson/West 2007).
Grandpop’s Machine Gun in the Chest
September 25th, 2007
What does an attorney do, when he/she is confronted with the fact that grandpop died, and in his chest, there was a gun? This issue faces estate attorneys quite frequently, especially in pro-gun states, such as Pennsylvania. While most attorneys, not proficient in firearms law or firearms in general, will properly handle the transfer of a typical firearm, the issue arises when the firearm, unbeknownst to the attorney, is a machine gun. This uncertainty can lead to one’s client being convicted of possession of an unregistered firearm, punishable by up to 10 years, $250,000 in fines and the forfeiture of the weapon and any vessel, vehicle, or aircraft used to conceal or convey the firearm. 1
The first issue, any attorney working with an estate must determine, is whether there are any firearms in the estate. After determining that there are firearms in the estate, the attorney must verify whether the firearm is a revolver, bolt action, semi-automatic, or automatic firearm. The distinction is crucial. While the most well intentioned attorney would call upon a Federal Firearms Licensed (FFL) dealer to make the determination, such an interaction may not be in the client’s best interest. An attorney, for issues to be discussed shortly, should take all possible measures to determine the character of the weapons in the estate. One place where an attorney, with a picture and description of the firearm, can determine its character is on http://subguns.com/boards/mgmsg.cgi, where individuals pride themselves on the identification and proper procedures for determining the status of a specific firearm. Moreover, the Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) provides some identification assistance with http://www.atf.gov/docs/Identification_of_Firearms…, and http://www.atf.gov/docs/Identification_of_Firearms….
machine guns are governed by several laws, which are too vast to delve into for this article. The main statutes are the National Firearms Act (NFA of 1934),2 the Gun Control Act (GCA of 1968),3 and the Firearms Owners Protection Act (FOPA of 1986).4 The definition of a machine gun is, [A]ny weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.5 Any machine gun must be registered in the National Firearms Registration and Transfer Record (NFRTR).6 Firearms, for which there are no or incomplete records in the NFRTR, are considered contraband and are subject to seizure and forfeiture, by the BATFE.7
Thus, once a determination is made that the firearm is a machine gun, the attorney is advised to search for the registration of the firearm, since it is not unusual for a registered weapon, not to be in the registry.8 If the attorney is unable to find the registration, he is advised contact the BATFE, in writing, to determine the weapons status.9 This inquiry should be accompanied by documentation showing the executor’s or administrator’s authority, under State law, to represent the decedent and dispose of the decedent’s firearms. Although ATF is prohibited from disclosing tax information, which all NFA registrations are, the ATF may disclose the owner information of the firearm, to persons lawfully representing registrants of NFA firearms.10
If the registry does not show the weapon to be registered, the BATFE requests that the administrator or executor of the estate contact the local BATFE branch office, so the weapon can be destroyed. While most good intentioned attorneys would follow the BATFE’s suggestion, one may be doing a disservice to his/her client. The cheapest registered machine gun runs around Four-Thousand dollars, with some transferables (term used for weapons which are registered) going for upwards of Two-Hundred Thousand. While these are the prices for transferable, the price of the parts to these weapons may be just as valuable.
While the BATFE desires to dispose of the weapon, in entirety, including parts, which in themselves are NOT machine guns, the BATFE allows for a weapon to be decommissioned. The preferred method for destroying a machine gun receiver is to completely sever the receiver in specified locations by means of a cutting torch that displaces at least one-quarter inch of material at each cut location.11However, A machine gun receiver may also be properly destroyed by means of saw cutting and disposing of certain removed portions of the receiver.12 The BATFE has published preferred procedures for the destruction of specific machine guns.13 By destroying the receiver, you are enabling the estate to sell the parts, which could constitute a significant amount of money.
Furthermore, if the estate does not wish to destroy a war relic, the estate may donate the weapon to a museum. Museums are accustomed to such transfers and will usually handle the contact with the BATFE and transfer of the weapon. The downside is two-fold. For one, the estate will not receive any money for the weapon, unlike the sale of the parts. Furthermore, and a slightly contested topic, if the BATFE should offer a new amnesty, where one can registered a previously unregistered machine gun, the estate no longer has possession of the firearm. If however, the estate cuts the receiver, per the BATFE specs, and retains the parts, it may be possible, during an amnesty, to register the receiver, after it being repaired.
Thus, the issues of firearms in estates can be daunting, especially to those with little or no knowledge of current firearms laws. As our veterans of the World Wars begin their journey into the next life, the issues of war bring-backs will surface, requiring that more estate attorneys deals with the complex legal issues that they entail. Moreover, attorneys must be cognizant of the real possibility that what the heirs believe are just firearm, may actually be machine guns. More interesting is the fact that the BATFE has known since at least 1981 that several thousand machine guns are registered to dead people; yet, they have failed to take any action.14
1 26 U.S.C.S. 5861(d),(j); 26 U.S.C.S. 5872; 49 U.S.C.S. 781-788.
2 26 U.S.C.S 5801-5872; 73 P. L. No. 474; 48 Stat, 1236.
3 90 P. L. 618; 82 Stat. 1235, 921.
4 18 U.S.C. 922(o)(1) (1986); 99 P.L. 308; 100 Stat. 452, 102(9).
5 26 U.S.C.S 5845(b).
6 26 USCS 5841.
7 U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal Service, and General Government Appropriations, Treasury Postal Service, and General Government Appropriations for Fiscal Year 2002, Part 3, Statements of Members of Congress and Other Interest Individuals and Organizations, 107th Cong., 1st Sess. (Washington, GPO, 2002), p. 9.
8 U.S. Congress, Senate Committee on Appropriations, Oversight Hearings on Bureau Alcohol, Tobacco & Firearms, 96th Cong., 1st Sess. (Washington GPO 1979). P.39. (investigating why one, J. Curtis Earl, was declared to be in illegal possession of FOUR HUNDRED AND SEVENTY FIVE machine guns; yet, he had the registration paperwork for all of the firearms.)
9 BATFE, ATF National Firearms Handbook, 58 (June 2007) available at http://www.atf.gov/publications/firearms/nfa-handbook/.
10 Id.
11 Id. at 21-22.
12 Id. at 22.
13 Id. at Appendix B (ATF Rulings 2003-1, 2003-2, 2003-3, 2003-4)
14 Deron Dobbs, Status Report National Firearms Registration and Transfer Record, 15 (1981), available athttp://www.nfaoa.org/documents/DeronDobbs.pdf.