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No firearm owner is safe

By Jeff and Chris Knox

Suppose you sold a car and it was later used in a hit-and-run fatality. Would you be culpable? Suppose the person who used it didn’t have a driver’s license. Would that make you responsible? What if the person who bought your car actually committed the hit and run with another car, but had your old car parked in their backyard – and on top of that, they actually bought the car, not from you, but from a police officer you had sold it to several months earlier? Is there any way anyone could blame you for contributing to the hit and run?

That’s basically what happened to John Shipley – except it wasn’t a car he sold, but a gun. What’s more, Shipley was an FBI agent at the time and was extremely scrupulous about making sure that the handful of gun sales he made each year were in compliance with the law.

In 2007 Shipley purchased a Barrett long-range target rifle. A short time later, a local sheriff’s deputy who was a casual acquaintance offered him more than he had paid for the rifle, and Shipley agreed to sell it (knowing that he could replace or upgrade the rifle with the proceeds of the sale). The deputy later consigned the gun at a local gun shop, and the shop owner hooked him up with a potential buyer. The deal was made and the transaction completed in the parking lot of the gun shop – off the books of the gun shop. The buyer was a Mexican national who held a Texas driver’s license with a Mexico address. The gun was later found in a house in Mexico where Mexican police engaged in a shootout with drug-gang members. The gun was not used in the shootout, nor was it involved in any other crime beyond being illegally possessed in Mexico.

It was perfectly legal for Shipley to sell the gun to the deputy, and it was perfectly legal for the deputy to offer the gun for sale at the gun shop. It was even legal for the deputy to sell the gun to a Mexican national, as long as he was a legal resident alien with a “Green Card” and a local driver’s license. The fact that the buyer’s license showed a Mexico address raises some questions – not just regarding a firearm purchase – but it is legal for a resident alien to purchase a firearm from a dealer or a private seller. Where the gun crossed over into questionable territory was when a licensed dealer brokered a sale of a gun, that had been on his books, in an off-book transaction. It crossed into clear illegality when it was smuggled into Mexico and possessed in that country.

The Mexican buyer was already a trafficking suspect before purchasing this gun and was later arrested and charged with gun-trafficking crimes – though not specifically for trafficking this particular gun. The gun shop owner was apparently working with the ATF and brokered the sale under the agency’s direction – which suggests that the ATF allowed the gun to “walk” to Mexico and would explain why this gun wasn’t included in the charges against the trafficker. I am unclear as to what happened to the deputy who sold the gun to the trafficker, but John Shipley, the FBI agent who sold the gun to the deputy, was charged with dealing in firearms without a license, causing a firearms dealer to maintain false records and lying to a federal officer.

An examination of the Shipley case suggests that the jury actually convicted him of committing straw purchases, even though that was not what he was charged with. The law defines “engaging in the business” as: “A person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such a term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.” (Emphasis added.)

I have been shooting, collecting guns and studying firearms laws for over 40 years – since I got my first real gun when I was just 10 years old – and I can tell you that it is extremely common for an active firearms enthusiast to buy and sell dozens of guns over the course of a year. Sometimes selling last year’s model to buy this year’s model. Sometimes buying just because he found a great deal, and often buying, selling and trading just for the love of the horse-trade. It is highly unusual for ATF to bring charges of “engaging in the business without a license” against anyone who isn’t practically running a full-time business selling guns at gun shows and swap meets. For them to bring charges against Shipley – a decorated FBI agent – for selling a total of 66 firearms over five years, with 24 being the most sold in any single year, is so unusual as to be suspicious.

The bad smell of the case gets stronger when you look at the lengths investigators and prosecutors went to in order to secure a conviction. A search warrant was issued based on false information. The charge of lying to a federal agent was based on Shipley providing investigators with only records he believed were pertinent when he had no legal requirement to maintain any records at all. And rather than charge Shipley with making straw purchases and lying on the federal purchase form about who the actual purchaser was, they claimed that by so lying, Shipley caused the dealer’s records to be false. This last is significant because it is easier to argue that since a dealer’s records say the gun was bought by and for John Shipley, and the gun is actually in possession of some other person, that Shipley caused the records to be false, as opposed to proving that he purchased the gun on behalf of another person with that person’s money. Of course, any gun Shipley subsequently sold would be in possession of someone other than Shipley. Even so, in one of the three false records counts, the gun in question was still in Shipley’s possession at the time of his arrest, and no money had ever changed hands.

The arguments put forward by the prosecution in relation to the Barrett rifle described above are among the most troubling aspects of the case though. Shipley was charged with acting as a gun dealer without having a dealer’s license, but the prosecution focused on violence in Mexico and the one gun Shipley had sold that was found in Mexico. They showed pictures of dead bodies and seized weapons caches that actually included grenades and full-auto machine guns, bodies and weapons which had nothing whatsoever to do with Shipley.

There is no indication that John Shipley ever sold a gun to anyone who could not have purchased the same gun at any gun shop in the state. While one individual who purchased a gun from Shipley did claim that Shipley “took orders” to buy certain guns for him, that witness’s veracity is questionable and, even then, the man was not a felon or otherwise prohibited from purchasing a firearm.

Probably the most troubling aspect of this case to me is the lack of public support for Shipley from his fellow federal agents. I have seen police go to criminal lengths to cover for a fellow officer who clearly crossed the line. It seems odd that federal law-enforcement officers and organizations stood silently by as one of their own was so apparently railroaded. Even the NRA, notorious for staying away from criminal cases, contributed to Shipley’s defense, but little or nothing came formally from federal law-enforcement support organizations.

This case isn’t closed yet. John Shipley has appealed the case to the Federal Appeals Court for the 5th Circuit. It is hoped that the court will hear it soon. Meanwhile, Shipley remains in federal prison. With good behavior, he could be released to a halfway house soon. Still, his life has been devastated. His career is gone. He has been permanently debarred from pursuit of his passion for firearms, and his gun collection, including those passed down from his grandfather, is probably lost forever. Worse yet, even if the 5th Circuit agrees with Shipley’s challenges to his conviction, its most likely action would be to remand the case back to the lower courts for a new trial. In such a case, it would be likely that the prosecutor would simply choose not to pursue the case “at this time,” leaving Shipley in limbo, not convicted, but not exonerated. In that case there is little hope of counter suits or recovery of property. (See the sad case of Albert Kwan.) But the personal tragedy this case represents for the Shipley family is minor compared to the valid concerns the case raises for the corruption, vindictiveness and anti-gun bigotry that is apparent in our criminal “justice” system.

We will continue to track this case along with friend and colleague David Codrea, the National Gun Rights Examiner, who helped to bring it to our attention and who has done yeoman’s service getting the details of the case out to the public. Those interested in helping John Shipley can find information at a site set up by his family: http://www.shipleylegalfund.com.