The federal government allegedly suppressed evidence and edited a legal definition in a Wisconsin case against a man who ultimately was convicted of transferring a machine gun, according to an appeal document.
WND reported earlier on the case against David Olofson, who has begun serving a 30-month prison term for his actions, even though his defense lawyers argued the AR-15 rifle he loaned to a friend was broken, not a machine gun.
The Gun Owners of America launched a campaign to help support Olofson’s family while he was serving time, and his lawyers were working on an appeal. The appeal now has been filed with the 7th U.S. Circuit Court of Appeals.
Olofson, of Berlin, Wis., surrendered to federal authorities July 2 to begin his prison term, leaving 2nd Amendment advocates enraged.
Said Larry Pratt, chief of the GOA, “A gun that malfunctions is not a machine gun. What the [federal Bureau of Alcohol, Tobacco, Firearms and Explosives] has done in the Olofson case has set a precedent that could make any of the millions of Americans that own semi-automatic firearms suddenly the owner [of] an unregistered machine gun at the moment the gun malfunctions.”
The appeal includes a number of claims about the inadequacy of the district court handling of the case, but it focuses on several parts – the testing of the weapon at issue, the legal definition of “automatic,” the court’s refusal to include definitions that defense attorneys said were needed and a refusal on the part of both the court and prosecutors to explain the background of the gun model. The gun was made by Olympic Arms and had been subject to a recall because the maker apparently included some parts from the M-16 machinegun model in it.
“The testing agent averred that these four parts [M-16 parts in Olofson’s AR-15] parts would ‘allow it to fire … more than one round with a single pull of the trigger,’ and ‘therefore (Olofson’s AR-15 firearm) constituted a machine gun,’ even if the multiple bursts were stopped by a malfunction (the gun having jammed), and not by the release of the trigger or the exhaustion of ammunition,” the appeal said.
The problem with that is that during its prosecution the government never bothered to check which M-16 parts may have been installed in Olofson’s gun during its manufacture. At least two key M-16 parts to make it a machine gun, also, were missing on Olofson’s gun, the appeal said.
“The testing agent agreed that the AR-15 to M-16 conversion manual – introduced by the government as having been seized from Olofson’s home … did not state that an AR-15 could be converted into an M-16 machinegun only by the insertion of the four M-16 parts that he found in Olofson’s AR-15. Asked whether Olofson’s AR-15 had been manufactured by SGW-Olympic Arms with the inclusion of these M-16 parts, the expert replied in the negative, but said that he had not contacted the manufacturer ‘about this particular rifle,'” the appeal said.
Pratt said when Olofson’s weapon first was tested, the results showed it was not a machine gun, and therefore would not support a government prosecution. So agents then changed factors in the test, including the type of ammunition, and re-tested it, this time with different results. A federal agent’s affidavit, however, excluded the results of the first test, the appeal said.
“The first test came back with a report that the gun is a semi-automatic rifle. The next test came back with a report that it had fired a 20-round burst, and was thus a machine gun,” the defense said.
The judge also denied defense efforts to uncover documents relating to the federal government’s testing procedures and classification standards related to the AR-15 to M-16 components, as well as ATF correspondence with the Olympic Arms, the appeal said. The defense cited a letter from the ATF regarding the same model gun, suggesting that it be recalled to repair defects that could cause it to malfunction.
“The prosecution informed the court that it had not yet determined whether any such documents existed, and that, even if they did, maintained that they were not producible. … four days later, on the first day of trial, the prosecution told the court that it was satisfied that the ATF-Olympic Arms letter existed but that it was not discoverable both because it was not exculpatory and because it might be protected from disclosure by section 6103 of the Internal Revenue Code,” the appeal said.
“Defense counsel proffered that it was his understanding that ‘this particular model weapon that’s at issue here … was made with M-16 internal parts’ and that the requested letter ‘acknowledges … these internal M-16 parts,’ suggesting ‘that these guns be recalled or sent back to have those parts fixed so that the guns would not malfunction,” the appeal said.
But without explanation, the judge rejected the defense requests.
Additionally, the prosecution told the jury that any gun that fires more than one shot with a single press of the trigger – no matter the reason – is a machine gun. But the defense said that doesn’t align with court-adjudicated requirements in such cases.
“The prosecution told the jury (in opening statements) that a firearm is a ‘machine gun’ ‘if [it] expels more than one round with a single pull of the trigger'” and made similar statements in closing arguments, the appeal said.
“That is, if you have a gun, you pull the trigger once and more than one shot is fired, that firearm is a machine gun,” the prosecutor said.
But defense attorneys pointed out that court precedent has been more specific.
“Once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted,” they said should be the definition. That, they said, would appear to exclude malfunctions in which several shots are released, but the shooting stops because of a malfunction.
Prosecutors opposed giving that definition to jurors, and the judge agreed.
The appeal said Olofson knew the gun occasionally misfired and warned his friend about the possibility.
“The record is void of any evidence that Olofson’s AR-15 was a machinegun,” the appeal said.
There is nothing illegal about owning an AR-15, even one with some M-16 parts, the appeal argued.
“As our attorneys have looked into the records of the case, it is obvious that a miscarriage of justice has been perpetrated,” Pratt had explained. “The chief piece of evidence is an AR-15 made by Olympic Arms many years ago. Olofson had loaned the gun to a young man, who was his neighbor. At a range the gun fired two bursts of three rounds each and then jammed. Normal people would understand that a gun that jams is malfunctioning and seek to get it fixed.”
ATF officials have declined to speak with WND on the record. They explain that because of the rules for gun licenses and the like, such disputes between a gun owner and the federal agency are considered tax issues, and they cannot discuss them publicly.