Rehearing in 'broken gun' conviction refused

A terse two-sentence statement from the 7th U.S. Circuit Court of Appeals has rejected a request for a rehearing in a case that defense lawyers say stemmed from a broken rifle that was loaned out and then malfunctioned.

The ruling from the court today came in the case involving David Olofson, who was sentenced to 30-months in prison for "transferring" a machinegun, even though the weapon in question was described by defense weapons experts as a rifle that misfired.

The decision from judges Dan Manion, Michael Kanne and Virginia Kendall said: "On consideration of the petition for rehearing en banc filed by defendant-appellant,
no judge in active service has requested a vote on the petition for rehearing en banc, and all
judges on the original panel have voted to deny rehearing. The petition is therefore
DENIED."

Defense lawyers didn't immediately announce whether they would continue the fight. But WND reported earlier when a panel on the appellate bench rejected Olofson's appeal.

The panel found what a federal agent did during a testing procedure to result in "automatic" fire from an AR-15 has no bearing on Olofson's conviction.

The ruling had affirmed the trial judge's decision that the Wisconsin man sent to prison was guilty, no matter the reason that the semi-automatic rifle he loaned to a prospective buyer unleashed several bursts of multiple rounds and then jammed.

His defense team had explained the case is about nothing more than a malfunctioning gun. But according to judges Manion, Kanne and Kendall of the 7th Circuit, the weapon is a machinegun, and government information about the tests that determined that are not pertinent.

Constitutional lawyer Herb Titus, who argued at the appellate level on behalf of Olofson, said the government's case was simple: "Olofson's malfunctioning semi-automatic rifle functioned as a machinegun because it fired more than one shot at the single pull of a trigger."

However, Titus contended the government's position is contrary to fact, established law and precedent.

The government even, in Olofson's case, applied a definition "contrary to the Bureau of Alcohol, Tobacco, Firearms and Explosives own definition in a guide to law enforcement," Titus had argued.

Under this government definition, regardless of the reason, a gun is a machinegun if more than one bullet is fired with a single pull of the trigger. That could apply to grandpa's double-barreled as well as the local police sidearm, if it malfunctions similarly, he said.

The normally accepted definition of a machine gun is a weapon that will fire repeatedly until the trigger is released or the ammunition exhausts. But in Olofson's case, the trigger was pulled, the first tests showed no "automatic" action.

Then the government reported a change in the type of ammunition used and the rifle loosed off several shots and jammed.

"By this time, the weapon had been in the hands of the ATF for four
months. What caused the functional change in the weapon to fire as it had not done
before is unknown, although the ATF agent did acknowledge that the change in the
outcome from the October test resulted from a change to 'softer primer'
ammunition," the appellate documents said.

But the court ruling said neither documentation of the procedures used by the ATF to test the AR-15 nor correspondence between the ATF and the maker about the ability of the AR-15 to fire automatically were needed to reach a guilty verdict.

"Regarding the first non-disclosed item – the ATF's
internal procedures for test-firing AR-15 rifles – Olofson
says he wanted that information because '[f]ailure to
follow those procedures by changing the type of ammunition
in the second test could demonstrate that the
tests had been manipulated to arrive at a reversal of the
results of the first test,'" the court said.

"We do not see how that information
could have exculpated Olofson; section 5845(b) does
not require compliance with ATF test-fire procedures in
order for a weapon to qualify as a machinegun, nor
must the weapon fire any particular grade of ammunition
or in the prohibited fashion during the first test-fire.

"The government’s
expert admitted that the gun fired automatically
more than one round with a single function of the trigger
without manual reloading in the second test with civilian grade
rounds, but jammed in the first test with military grade
rounds. Even if the second test was inconsistent
with ATF procedures, that fact would not undermine confidence in the outcome of the trial," the court said.

"With respect to his request for the ATF's correspondence
with the manufacturer of his AR-15 concerning the use
of M-16 parts in early AR-15 rifles, the defendant contends
that evidence was exculpatory because it was
relevant to his knowledge of whether or not his AR-15
was a machinegun. The district court denied Olofson's
request on the first day of trial. At the sentencing hearing,
the court revisited the issue; the court inspected a document
in camera, stated that it was not exculpatory, and
placed it under seal. We subsequently ordered that document
to be unsealed," the appellate judges wrote.

"That evidence is a 1983 letter from
the ATF to the manufacturer of the AR-15 in which the
ATF advised the company that the installation of certain
M-16 parts in AR-15 receivers may permit the weapon
to fire automatically even though an automatic sear is not
present," the court ruled. "It has no bearing on Olofson’s
knowledge of whether his AR-15 was a machinegun."

Olofson also argued documents relating to the ATF's registry procedures were needed "because they could have been used to refute the government expert's testimony that the M-16 parts in Olofson's AR-15 made it a machinegun."

WND reported earlier when the Gun Owners of America launched a campaign to help support Olofson's family.

Olofson, of Berlin, Wis., surrendered to federal authorities last July to begin his 30-month prison term.

"A gun that malfunctions is not a machine gun," Larry Pratt of Gun Owners of America said that the time. "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."

ATF officials have declined to speak with WND on the record.

"It didn't matter the rifle in question had not been intentionally modified for select fire, or that it did not have an M16 bolt carrier … that it did not show any signs of machining or drilling, or that that model had even been recalled a few years back," said a commentary in Guns Magazine on the case.

"It didn't matter the government had repeatedly failed to replicate automatic fire until they replaced the ammunition with a softer primer type. It didn't even matter that the prosecution admitted it was not important to prove the gun would do it again if the test were conducted today," the magazine said. "What mattered was the government's position that none of the above was relevant because '[T]here's no indication it makes any difference under the statute. If you pull the trigger once and it fires more than one round, no matter what the cause it's a machine gun.'

"No matter what the cause."

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