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Bladerunner2347
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Posted: Sun Apr 27th, 2008 03:38 am |
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Pointman wrote: Are the parts M16 parts, or are they AR15 parts they're claiming are M16? If the defense hasn't been able to inspect the gun, who knows they're not AR15? Who can prove David put the parts in without prints? Who cares!! Without an M16 sear and bolt, it's not a machine gun.
It's getting to the point OCDO need to assign a "Screwed" icon next to certain member's names. Start with David, then Legba, maybe Dan, everyone in Wisconsin, Illinois residents get two because they're double-screwed, California gets a homosexual screw, Michigan's gets a safety head so it can't turn left, Hawaii gets a wood spike because screws harm the environment and have been banned, Texas gets a counter-sunk screw so you can't see it, Minnesota's screw has to be driven in, backed out because it was put in wrong, then driven in again, ...
There are defiantly M16 parts in now.
As for prints I asked for them and t as denied. I’m sure because the ATF didn’t want to blow there case.
And you’re right about the sear. No sere or provisions for one and there is no MG. So says the ATF. But we were not allowed to say that in court, or show the evidence o there rulings. Tax information don't ya know.
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Bladerunner2347
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Posted: Sun Apr 27th, 2008 03:46 am |
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Mike wrote: I don't think that one can assert a defense of "my machine gun came from a factory sold as a semi-auto" - mistake of fact?, yes, but I think the record shows that this guy knew he had a machine gun and he transferred it to somebody. Unfortunately, these facts are extremely bad for anybody at anytime.
Is the NFA a harsh law? Yes. So Congress needs to repeal it or make it less harsh.
The defense was it is not a MG. Still is not one. But the paperwork proving that was not allowed to be brought forth in court. The government claimed it was privileged information under section 6103.Income tax crap. So not even the judge could see it. The 20 page memo we have and posted proves they knowingly lied to the court to hide exculpatory evidence that they have ruled that an AR is not a MG unless it has provisions for, or contains an auto sear. It doesn’t matter how many M16 parts it has. No auto sear, no MG. No mods for one, no MG. Period. End of game. You can see why they don't want this known. Not a MG before the kid got it, not one after he played with it either.
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Pointman
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Posted: Tue Apr 29th, 2008 08:02 pm |
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It's about time to ask Lou Dobbs for an update on David Olofson.
http://edition.cnn.com/feedback/forms/form5.html?9
from: http://loudobbs.tv.cnn.com/ under Contact
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Bladerunner2347
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Posted: Tue Apr 29th, 2008 08:14 pm |
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Pointman wrote: It's about time to ask Lou Dobbs for an update on David Olofson.
http://edition.cnn.com/feedback/forms/form5.html?9
from: http://loudobbs.tv.cnn.com/ under Contact
Just a note, Loe Dobbs is NOT dropping this and will continue to follow up withit. We are in a lul right now waiting for a hearing date for the post trial motions. Most likely will be nothing new untill that happens.
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Mike
Super Moderator
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Posted: Tue Apr 29th, 2008 08:24 pm |
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Bladerunner2347 wrote: The 20 page memo we have and posted proves they knowingly lied to the court to hide exculpatory evidence that they have ruled that an AR is not a MG unless it has provisions for, or contains an auto sear. It doesn’t matter how many M16 parts it has. No auto sear, no MG. No mods for one, no MG. Period. End of game. You can see why they don't want this known. Not a MG before the kid got it, not one after he played with it either.
Who "ruled"? Cite for "No auto sear" rule?
If the gun fires like a machine gun, it's illegal to possess without a tax stamp - has been since 1934.
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Bladerunner2347
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Posted: Tue Apr 29th, 2008 09:51 pm |
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Mike wrote: Bladerunner2347 wrote: The 20 page memo we have and posted proves they knowingly lied to the court to hide exculpatory evidence that they have ruled that an AR is not a MG unless it has provisions for, or contains an auto sear. It doesn’t matter how many M16 parts it has. No auto sear, no MG. No mods for one, no MG. Period. End of game. You can see why they don't want this known. Not a MG before the kid got it, not one after he played with it either.
Who "ruled"? Cite for "No auto sear" rule?
If the gun fires like a machine gun, it's illegal to possess without a tax stamp - has been since 1934.
Both ATF and the courts.
A firearm either is a MG or not. Similar does not count, although the ATF like you to think it dose. As for where this information comes from we have it from a few places. The best 2 examples are from an individual that at least for now must remain un named until we are allowed to bring it up in court. He bought a M16A1, or he thought it was. Turns out it was an AR-15 A1 style with a DIAS. When he went to the ATF to fix the form 4 the ATF fixed it by removing the AR from the NFTR registry and placing the DIAS on it. When he requested the AR remain there also (to avoid any problems like mine) they refused, both on the phone and in writing stating that a AR15 with M16 parts is not a MG and cannot be on the NFTR. The only thing that weapon lacked was an auto sear. It had more M16 parts than mine currently dose. Keep in mind this happened at the same time they started their case with me.
A firearm either is a MG or not. Similar does not count, although the ATF like you to think it dose. As for where this information comes from we have it from a few places. The best 2 examples are from an individual that at least for now must remain un named until we are allowed to bring it up in court. He bought a M16A1, or he thought it was. Turns out it was an AR-15 A1 style with a DIAS. When he went to the ATF to fix the form 4 the ATF fixed it by removing the AR from the NFTR registry and placing the DIAS on it. When he requested the AR remain there also (to avoid any problems like mine) they refused, both on the phone and in writing stating that a AR15 with M16 parts is not a MG and cannot be on the NFTR. The only thing that weapon lacked was an auto sear. It had more M16 parts than mine currently dose. Keep in mind this happened at the same time they started their case with me.
The second thing that brings us to the conclusion so contrary to what most believe is United States v . Fleischli, 3 05 F. 3d 643,6 55 (7th Cir. 2002). It states that a machine gun "will automatically continue to fire until its trigger is released or the ammunition is exhausted."
From one of the motions for dismissal:
“Here, the only evidence that the weapon at issue fired as a machine gun
was when the ATF test-fired the weapon for the second time using soft-primered ammunition. The weapon did not function as a machine gun when it was fired by Robert Kernicki because it only fired three rounds, although there were additional rounds in the gun and Kermicki did not remove his finger from the trigger. The gun therefore did not automatically continue to fire until its trigger was released or the ammunition was exhausted. The government therefore failed to meet its burden to produce evidence beyond a reasonable doubt that the firearm at issue was a machine gun" for purposes of 18 US.C. § 922(0). Accordingly, the Court should issue a judgment of acquittal pursuant to Rule 29.”
There is a lot more out there than this, but these are the 2 we are using as primaries. We have other stuff along the same lines.
Dose this answer your question?
P.S. For more check out some of the following.
US v. Agiular-Espinoza says that a malfunctioning AR15 (hammer follow) is not an MG.
"The government's expert, a ATF enforcement officer, Agent McLaughlin, conceded
at trial that the AR-15 rifles containing internal "M-16"
components are still legal semiautomatic AR-15 rifles provided
they are not equipped with the sear or auto-sear. n3 (Tr. p.
109, Aplt. App. #Q, p. 299). "
Last edited on Tue Apr 29th, 2008 09:53 pm by Bladerunner2347
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Pointman
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Posted: Tue Apr 29th, 2008 10:43 pm |
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In the large amount of research I did previously (and posted the results on OCDO in the now-closed thread), I found what Bladerunner is saying to be true. As he said, there is more to it, but the two main points are sufficient.
I did personally read that the BATFE did not consider an AR-15 without auto-sear and M16 bolt to be a machine gun. The prosecution of David is completely contrary to their previous finding.
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Bladerunner2347
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Posted: Thu May 1st, 2008 02:29 pm |
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ama-gi wrote: All of us need to remember if any of us are ever on a jury regarding a gun control law like this, jurors have the right to find a person "not guilty" if they think the law is unjust (whether or not the defendant broke the unjust law)
http://fija.org/
And we both know that if anyone would have mentioned this to them they would have been summarily excused and a new set of "untainted" jurors brought in. The government looks dimly on informed people.
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Mike
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Posted: Thu May 1st, 2008 04:48 pm |
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Bladerunner2347 wrote: The second thing that brings us to the conclusion so contrary to what most believe is United States v . Fleischli, 3 05 F. 3d 643,6 55 (7th Cir. 2002). It states that a machine gun "will automatically continue to fire until its trigger is released or the ammunition is exhausted."
So, if I have an M16, equipped for 3 shot burst, and have no tax stamp, that's fine under your reading of Fleischli?
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Bladerunner2347
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Posted: Thu May 1st, 2008 05:06 pm |
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Mike wrote: Bladerunner2347 wrote: The second thing that brings us to the conclusion so contrary to what most believe is United States v . Fleischli, 3 05 F. 3d 643,6 55 (7th Cir. 2002). It states that a machine gun "will automatically continue to fire until its trigger is released or the ammunition is exhausted."
So, if I have an M16, equipped for 3 shot burst, and have no tax stamp, that's fine under your reading of Fleischli?
Under that ruling it would not be a MG. If the court was to reinterpret it, I believe to make it clear and consistent with other ruling they would have to say it was designed or redesigned to be a MG by the provisions for, or the presence of the auto sear. But under a strict reading of that one ruling it would not be a MG. Taken in conjunction with the other rulings it would be, but the one I borrowed out would not be. Likewise a strict reading and ruling of ANY weapon firing more than one round with a single pull of the trigger is also incorrect in that it is assumed the definition of the word firing is to include the detonation of ammo in the gun under any circumstance instead of a purposeful act. If it were clarified so as to not include malfunctions atrocities like this case would not happen.
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Bladerunner2347
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Posted: Thu May 1st, 2008 06:30 pm |
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Just a note to update everyone. I was just given official notice of a post trial motion and sentencing date of 8 May. Motions will be heard right before any sentencing, with the hope that at least one of the motions to dismiss wins out. If not, then at least we have an answer on this from the court and the full story can come out. Anyone wishing to attend the hearing is welcome. It will be heard at the Federal court house in Milwaukee Wisconsin in front of Judge Cleverts at 1430. I’d be there a bit early if you want seating. The motions are expected to take 30-60 minutes; any sentencing would take an additional 15-30 minutes if it goes that far. If you want attend please plan on good behavior in the court room, and by extension the Federal court house. Neither is the place for any dissent. Opinions can be freely rendered after the hearing outside the courthouse to whoever chose’s to listen.
I will also add that additional reading on this can be done in at least the next two issues of Soldier of Fortune. In addition to that Lou Dobbs has more coverage ready to roll from some very prominent people weighing in on this subject. Most likely additional coverage will also be given to me after the fact. I will post any dates of the airing when it is decided the timing is right by the network.
I promised you more and now it’s coming. True to my word all I can say is brace yourselves, its worse than you think, and unlike the BATFE in this case we can prove it.
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deepdiver
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Posted: Fri May 2nd, 2008 02:19 am |
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I'm looking forward to reading "the rest of the story" as they say.
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imperialism2024
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Posted: Fri May 2nd, 2008 02:21 am |
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Bladerunner2347 wrote: Just a note to update everyone. I was just given official notice of a post trial motion and sentencing date of 8 May. Motions will be heard right before any sentencing, with the hope that at least one of the motions to dismiss wins out. If not, then at least we have an answer on this from the court and the full story can come out. Anyone wishing to attend the hearing is welcome. It will be heard at the Federal court house in Milwaukee Wisconsin in front of Judge Cleverts at 1430. I’d be there a bit early if you want seating. The motions are expected to take 30-60 minutes; any sentencing would take an additional 15-30 minutes if it goes that far. If you want attend please plan on good behavior in the court room, and by extension the Federal court house. Neither is the place for any dissent. Opinions can be freely rendered after the hearing outside the courthouse to whoever chose’s to listen.
I will also add that additional reading on this can be done in at least the next two issues of Soldier of Fortune. In addition to that Lou Dobbs has more coverage ready to roll from some very prominent people weighing in on this subject. Most likely additional coverage will also be given to me after the fact. I will post any dates of the airing when it is decided the timing is right by the network.
I promised you more and now it’s coming. True to my word all I can say is brace yourselves, its worse than you think, and unlike the BATFE in this case we can prove it.
I wonder if there would be a big enough group of supportive OCers to do an OC walk to the courthouse...
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Bladerunner2347
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Posted: Fri May 2nd, 2008 04:35 pm |
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imperialism2024 wrote: Bladerunner2347 wrote: Just a note to update everyone. I was just given official notice of a post trial motion and sentencing date of 8 May. Motions will be heard right before any sentencing, with the hope that at least one of the motions to dismiss wins out. If not, then at least we have an answer on this from the court and the full story can come out. Anyone wishing to attend the hearing is welcome. It will be heard at the Federal court house in Milwaukee Wisconsin in front of Judge Cleverts at 1430. I’d be there a bit early if you want seating. The motions are expected to take 30-60 minutes; any sentencing would take an additional 15-30 minutes if it goes that far. If you want attend please plan on good behavior in the court room, and by extension the Federal court house. Neither is the place for any dissent. Opinions can be freely rendered after the hearing outside the courthouse to whoever chose’s to listen.
I will also add that additional reading on this can be done in at least the next two issues of Soldier of Fortune. In addition to that Lou Dobbs has more coverage ready to roll from some very prominent people weighing in on this subject. Most likely additional coverage will also be given to me after the fact. I will post any dates of the airing when it is decided the timing is right by the network.
I promised you more and now it’s coming. True to my word all I can say is brace yourselves, its worse than you think, and unlike the BATFE in this case we can prove it.
I wonder if there would be a big enough group of supportive OCers to do an OC walk to the courthouse...
I wish more would openly carry like I do. But the 8th may be a bad time for others to try.
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Bladerunner2347
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Posted: Fri May 2nd, 2008 10:49 pm |
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K.new information for everyone. More to come befor the 8th.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
v. Case No. 06-CR-320
DAVID R. OLOFSON,
Defendant.
DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO COMPEL
DISCLOSURE OF EVIDENCE
DAVID R. OLOFSON, by counsel, submits this memorandum in support
of his motion for the disclosure of evidence.
I. Background.
Olofson had previously requested disclosure of the SGW letter
from the government on September 25 and December 10, 2007. The government
refused to turn over the SGW letter. Accordingly, Olofson filed a motion to compel
its disclosure, along with other documents not relevant here, on December 28, 2007.
At the final pretrial conference on January 3, 2008, the Court refrained from making
any decision regarding the SGW letter until it heard back from the government as
to whether a SGW letter actually existed.
On January 7, 2008, the morning of Olofson’s trial, the Court inquired
of the government as to the existence of a SGW letter. The government asserted that
a SGW letter exists, but that it did not believe that the SGW letter was discoverable
because, according to the Bureau of Alcohol, Tobacco and Firearms (BATF), it
contained privileged tax return information and was therefore protected under 26
U.S.C. § 6103. Moreover, the government contended that in any event the SGW
letter was not exculpatory. Based upon the BATF’s representations, which were
made through the government that the SGW letter contained return information, the
Court denied Olofson’s motion to compel its disclosure. Olofson proceeded to trial
and was found guilty of transferring a machine gun by a jury on January 8, 2008.
II. Argument.
Any correspondence from the BATF to SGW/Olympic Arms regarding
the use of M-16 parts in its AR-15 rifles is not privileged return information as that
term is defined in 26 U.S.C. § 6103 and is therefore discoverable. Moreover, the
SGW letter is discoverable because it directly contradicts the government’s theory
during the pendency of this case that because Olofson’s AR-15 contained the
following M-16 parts, it qualified as a machine gun: a M-16 trigger, hammer,
1Olofson has never seen a copy of the SGW letter. The information
regarding its contents comes from the recollection of Bob Schuetzen, owner of
SGW/Olympic Arms. Schuetzen’s original letter from the BATF was destroyed
in a fire a number of years ago.
disconnector and selector. Accordingly, the SGW letter is material to the issue of
guilt or innocence and is discoverable under Brady v. Maryland, 373 U.S. 83 (1963).
A. Return Information.
For the purposes of 26 U.S.C. § 6103, a return is any tax or information
return that is required by, or provided for, or permitted under Title 26, which is filed
with the Secretary by, on behalf of, or with respect to any person. 26 U.S.C. §
6103(b)(1); Ryan v. Bureau of Alcohol Tobacco and Firearms,715 F.2d 644, 646 (D.C. Cir.
1983). “A ‘tax return’ is a return filed by the person liable for the tax to which the
return information relates.” Ryan, 715 F.2d at 647, FN4. Return information
includes, among other things, a taxpayer’s identity, amount of his income, assets
and liabilities if they are received by, recorded by, prepared by, furnished to or
collected by the Secretary with respect to a return. 26 U.S.C. § 6103(b)(2)(A); Ryan,
715 F.2d at 646. According to Ryan, the proper test to determine whether something
is return information is to look to the formality of the document and the
standardized requirement of its filing. Id. at 647.
Under the standard created by then Judge Scalia of the D.C. Circuit, the
SGW letter is clearly not return information. The document(s) in question1 were
generated by the BATF and address BATF’s concern regarding SGW/Olympic
Arm’s use of M-16 parts in its AR-15 rifles and malfunctions that may be occurring
because of the use of M-16 internal parts; the documents were not filed by the
taxpayer. Nor were the documents generated to protect or regulate revenue streams
or assess liability regarding a particular taxpayer. Instead, the correspondence
issued from the BATF in response to safety concerns about SGW/Olympic Arms
AR-15 rifles. Because the SGW letter is not a return as defined in § 6103, the contents
of the letter are not return information and are not protected from disclosure under
the statute.
B. BATF Memorandum.
Not only does the BATF’s position mistake the controlling law with
regard to the § 6103 privilege, but its own internal policy on the subject contradicts
its position. Olofson has been made aware of an internal BATF memorandum that
discusses the sort of information that the BATF collects that should be considered
return information.
The BATF memorandum at issue is BATF memorandum number 22889,
which is dated August 18, 1980.2 The memorandum discusses whether the
information listed on NFA transfer cards is protected under 26 U.S.C. § 6103 in
response to a request for disclosure pursuant to the Freedom of Information Act
(FOIA). The BATF memorandum opines that the only the name the transferee on
the NFA transfer form is return information because the transferee may be subject
to tax or liabilities based upon the transfer. All other information on the NFA
transfer forms would be discoverable under the FOIA. Because the SGW letter does
not discuss the transfer of firearm or registration of firearm under the NFA, under
BATF policy, the SGW letter does not contain return information for the purposes
of 26 U.S.C. § 6103 and it is discoverable under the statute.
C. Brady v. Maryland, 373 U.S. 83 (1963).
Through the entire pendency of this case, the government has
maintained that it is the presence of internal M-16 parts in Olofson’s AR-15 that
make it a machine gun. See, e.g., Government’s Response to Defendant’s Motion for
Judgment of Acquittal at 3 FN1, Docket No. 80. Upon information and belief, the
SGW letter directly contradicts the government’s assertion regarding the four
internal M-16 parts. As such, that information is material to the issue of guilt and
is discoverable under Brady.
III. Conclusion.
WHEREFORE, David R. Olofson, by counsel, respectfully requests that
the Court grant his motion to compel the disclosure of copy of any and all
correspondence from the BATF to SGW/Olympic Arms or concerning
SGW/Olympic Arms’ use of M-16 parts in the production of its AR-15 type weapons
between 1980 and 1990, particularly the use of M-16 triggers, hammers,
disconnectors and selectors.
Dated at Milwaukee, Wisconsin, May 1, 2008.
Respectfully submitted,
s/ Brian T. Fahl
Brian T. Fahl, Wis. Bar #1043244
Counsel for Defendant
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Bladerunner2347
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Posted: Fri May 2nd, 2008 10:57 pm |
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1For the purposes of simplicity and clarity, Olofson will refer to the
correspondence as the “SGW letter” from this point forward.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
v. Case No. 06-CR-320
DAVID R. OLOFSON,
Defendant.
DEFENDANT’S MOTION TO COMPEL DISCLOSURE OF EVIDENCE
DAVID R. OLOFSON, by counsel, submits the instant motion to compel
the disclosure of evidence. Olofson seeks to compel the government to disclose a
copy of any and all correspondence1 from the Bureau of Alcohol Tobacco and
Firearms (BATF) to SGW/Olympic Arms or concerning SGW/Olympic Arms’ use
of M-16 parts in the production of its AR-15 type weapons between 1980 and 1990,
particularly the use of M-16 triggers, hammers, disconnectors and selectors. The
Court had previously denied Olofoson’s motion for disclosure based upon the ATF’s
representations that the SGW letter contained privileged tax return information.
Olofson now seeks disclosure of the SGW letter because the BATF’s contention that
the SGW letter contains privileged return information is both incorrect in law and
contrary to internal BATF policy. Moreover, the SGW letter is exculpatory because
upon information and belief, it contains evidence that directly contradicts evidence
elicited by the government during trail that was central to its theory of guilt. See
Brady v. Maryland, 373 U.S. 83 (1963). In support of this motion, Olofson submits an
accompanying memorandum of law.
WHEREFORE, David R. Olofson, by counsel, respectfully requests that
the Court order the defendant to disclose any and all correspondence from the BATF
to SGW/Olympic Arms or concerning SGW/Olympic Arms’ use of M-16 parts in
the production of its AR-15 type weapons between 1980 and 1990, particularly the
use of M-16 triggers, hammers, disconnectors and selectors as soon as practicable.
Dated at Milwaukee, Wisconsin, May 1, 2008.
Respectfully submitted,
s/ Brian T. Fahl
Brian T. Fahl, Wis. Bar #1043244
Counsel for Defendant
517 E. Wisconsin Avenue, Room 182
Milwaukee, WI 53202
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Bladerunner2347
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Posted: Fri May 2nd, 2008 11:01 pm |
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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.
DEFENDANT’S MOTION FOR A NEW TRIAL
PURSUANT TO FED. R. CRIM. P. 33.
DAVID R. OLOFSON, by counsel, submits the instant motion for a new
trial pursuant to FED. R. CRIM P. 33. The instant motion is dependent upon Olofson’s
motion to compel the disclosure of evidence, Docket No. 81. If the motion to compel
is granted, the new evidence will require that a new trial be granted in the interest
of justice. In support of his motion for a new trial, Olofson alleges the following:
1. The disclosure of the correspondence from the Bureau of Alcohol
Tobacco and Firearms (BATF) to SGW/Olympic Arms constitutes newly discovered
evidence. Because the instant motion is based upon newly discovered evidence and
has been filed within three years of the verdict, it is considered timely. FED. R. CRIM
P. 33(b)(1); United States v. Cavendar, 228 F.3d 792, 802 (7th Cir. 2000).
2. The SGW letter directly contradicts the government’s position at trial
that Olofson’s AR-15 rifle was a machine gun because it had four internal M-16
parts. Contrary to a motion brought under Rule 29, the Court, in a motion under
Rule 33, is allowed to evaluate the weight of the new evidence and make credibility
determinations regarding it. United States v. Eberhart, 388 F.3d 1043, 1050 (7th Cir.
2004). After evaluation, it is clear that the SGW letter undermines the jury’s verdict
in this case and creates a miscarriage of justice. United States v. Reed, 875 F.2d 107,
113 (7th Cir. 1989).
WHEREFORE, David R. Olofson, by counsel, respectfully requests that
the Court grant his motion for a new trial pursuant to FED. R. CRIM. P. 33.
Dated at Milwaukee, Wisconsin, May 1, 2008.
Respectfully submitted,
s/ Brian T. Fahl
Brian T. Fahl, Wis. Bar #1043244
Counsel for Defendant
Federal Defender Services of
Wisconsin, Inc.
517 E. Wisconsin Avenue, Room 182
Milwaukee, WI 53202
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Pointman
Member
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Posted: Sat May 3rd, 2008 12:41 pm |
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| Finally! Fantastic!
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Doug Huffman
State Researcher
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Posted: Sat May 3rd, 2008 12:52 pm |
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A cliffhanger hanging on the SGW letter. Best wishes.
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Bladerunner2347
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Posted: Sat May 3rd, 2008 03:13 pm |
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I belive these are not known here yet either.
UNITED STATES DISTRIC COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATFS OF AMERICA,
Plaintiff,
v. Case No. 06-CR-320
DAVID R OLOFSON,
Defendant.
DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
David R. Olofson, by counsel, asks this Court to issue a judgment of
Acquittal pursuant to FED. R. CRIM P. 29(a). Olofson argues that the government's case in chief failed to present evidence sufficient to sustain a conviction.
The government is required to prove that Olofson knowingly transferred a machine gun. A "machine gun" is a weapon that, once its trigger is depressed will automatically continue to fire until its trigger is released, or the ammunition is exhausted." United States v. Fleischli, 3 05 F. 3d 643, 6 55 (7th Cir. 2002).
Here, the only evidence that the weapon at issue fired as a machine gun
was when the ATF test-fired the weapon for the second time using soft-covered ammunition. The weapon did not function as a machine gun when it was fired by
Robert Kiernicki because it only fired three rounds, although there were additional rounds in the gun and Kiemicki did not remove his finger from the trigger. The gun therefore did not automatically continue to fire until its trigger was released or the ammunition was exhausted." The government therefore failed to meet its burden to produce evidence beyond a reasonable doubt that the firearm at issue was a machine gun" for purposes of 18 US.C. § 922(0). Accordingly, the Court should issue a judgment of acquittal pursuant to Rule 29.
Dated at Milwaukee, Wisconsin, January 7, 2008.
Respectfully submitted,
Brian P. Mullins
Brian T. Fahl
Counsel for David R. Olofson
517E. Wisconsin Avenue, Room 182
Milwaukee, WI 53202
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