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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 06-CR-320

DAVID R. OLOFSON,

Defendant.

On December 5, 2006, a grand jury in the Eastern District of Wisconsin returned an

indictment charging David R. Olofson with transferring a machine gun, in violation of 18

Olofson now has filed a motion for judgment of acquittal. For the reasons set forth below,

Olofson’s motion should be denied.

Olofson contends that the evidence presented at trial was insufficient to sustain a

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2003). The issue to be addressed by the court is whether the evidence presented at trial,

when viewed in the light most favorable to the government, could support a rational juror

assess the trial record to determine whether it contains evidence from which a reasonable

Olofson was charged with transferring a machine gun. To prove that Olofson

committed the offense, the government was required to establish beyond a reasonable

doubt (1) that Olofson knowingly transferred a machine gun; and (2) that Olofson knew,

Olofson argues that, because the statute is written in the present tense, a firearm

qualifies as a machinegun only if it always fires automatically and only if it fires

automatically regardless of the type of ammunition used.

Olofson’s interpretation does not flow from a reading of the plain language of §

He makes no argument regarding his knowledge of the firearm firing more than one round with a

single function of the trigger. In any event, again, the record contains ample evidence that Olofson

had such knowledge. For example, Robert Kiernicki testified that Olofson made comments to him

– both before and after law enforcement officers seized Olofson’s firearm – acknowledging that

Olofson had himself fired the gun automatically in the past. Moreover, Firearms Technology Officer

(FTO) Max Kingery testified that Olofson’s firearm fired automatically because, although it was a

semiautomatic AR-15, it had M-16 fire control components installed in it. Kingery also testified that

the particular M-16 components – the trigger; the selector; the hammer; and the disconnector – in

Olofson’s firearm were not installed by the manufacturer. Someone had to have modified the

firearm to include those four components. And e-mails and other documents on Olofson’s computer

showed that he had ordered M-16 parts. Olofson also had a manual that described how to convert

a semiautomatic AR-15 to an automatic M-16 by substituting the very M-16 parts that were in

Olofson’s gun. This evidence strongly suggests that Olofson had actually made the modifications

that converted his firearm to an automatic; at a minimum it demonstrates that he was aware that the

modifications had been made and that those modifications allowed his gun to fire automatically.

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its terms does not require any explanation for automatic fire (such as that a particular type

of ammunition be used or that a firearm be modified to cause automatic fire); nor does the

statute require any particular number of tests or any particular “error rate.” Factors like

those identified by Olofson are relevant only to the extent that they shed light on whether

Olofson knew that his firearm fired automatically. And, to the extent that Olofson might

suggest, for example, that ATF’s first negative test (using special military-grade

ammunition) shows that he did not know that his firearm fired automatically, there is

A machine gun is any 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. 18 U.S.C. § 921(a)(23); 26 U.S.C. § 5845(b). The record contains

ample evidence from which the jury could rationally conclude that Olofson’s firearm fit

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this definition. In fact, the firearm consistently fired automatically at a number of different

points in time, beginning before Olofson provided it to Kiernicki and extending through

the final ATF testfire. Kiernicki testified that Olofson acknowledged having fired the gun

automatically before loaning it to Kiernicki. And Kiernicki testified that he fired the gun

automatically on the day officers seized the gun from him. And, after the gun was seized,

FTO Kingery test fired it and found that it fired automatically. In fact, the jury was shown

a video of the firearm firing automatically. That the firearm failed to fire automatically on

one occasion when it was loaded with special hard-primered military grade ammunition

does not remove the gun from the compass of the statutory definition.

“machinegun” is defined in 26 U.S.C. § 5845. Olofson contends that the latter statute is

unconstitutionally vague.

“Vagueness may invalidate a criminal law for either of two independent reasons.

First, it may fail to provide the kind of ordinary notice that will enable ordinary people to

understand what conduct it prohibits; second, it may authorize and even encourage

not implicate First Amendment freedoms must be analyzed in light of the application of

statute is unconstitutionally vague as applied only if the defendant could not have known

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(1988) (explaining that a vagueness challenge “rest[s] on the lack of notice, and hence may

be overcome in any specific case where reasonable persons would know that their conduct

is at risk.”).

Olofson claims that § 5845 is vague because, under the facts of his case, “he could

not know whether he had a malfunctioning rifle or a machine gun.” Def. Motion at 5.

Olofson misapprehends the relevant issue,which is simply whether – at the time that he

transferred the firearm to Kiernicki – Olofson knew that it fired automatically. And, again,

The evidence presented at trial established that Olofson’s gun fired automatically

not because of an unintended malfunction, but rather because M-16 components had been

installed. The evidence further established (or at least supports a rational jury finding) that

Olofson knew that the M-16 components caused the gun to fire automatically. Most

importantly – and most to the point for purposes of the present motion – the evidence

presented at trial established that Olofson provided his automatically firing firearm to

Kiernicki and that, when he transferred the gun, Olofson knew that it fired automatically.

and because the clear definition of a machinegun (particularly when coupled with the

knowledge requirement in 18 U.S.C. § 924(a)(2)) did not result in arbitrary enforcement,

the statute is not unconstitutionally vague as applied to Olofson in this case.

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Based on the foregoing, the government asks that this Court deny Olofson’s motion

for a judgment of acquittal.

STEVEN M. BISKUPIC

United States Attorney

By:

s/Gregory J. Haanstad

Assistant United States Attorney

Gregory J. Haanstad: 1036125

Attorney for Plaintiff

Office of the United States Attorney

Eastern District of Wisconsin

517 East Wisconsin Avenue, Room 530

Milwaukee, Wisconsin 53202

Telephone: (414) 297-4581

Fax: (414) 297-1738

E-Mail: greg.haanstad@usdoj.gov