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Old February 5, 2009, 02:19 PM   #51
Bartholomew Roberts
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Becasue the letter wasnt exculpatory and Olafson is making a straw issue out of it.
If the letter wasn't exculpatory, the fastest way to stop Olofson from making a straw issue of it is to give them the letter. No muss, no fuss and problem solved. Likewise, the prosecutor never raised any safety issue. He just said "Don't worry about it. It isn't exculpatory." The issue here isn't whether Olofson is guilty or not, it is whether or not a prosecutor should get to be the one to make that decision. At least the trial judge could have asked to see the letter and made that determination himself.

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As to the expert, I suspect the same issue as I raised above.
Safety? Sorry for my confusion; but you've raised a number of issues throughout the thread, so "that issue I raised above" wasn't enough information to make it apparent which issue you had in mind with regard to the expert witness.

In any case, the prosecution had agreed to have the defense expert present during the prosecution expert's testimony and changed their tune on the same day as the testimony. If Oloson is such a bad guy, then why not go ahead and dot the i's and cross the t's? Had the prosecution done this, two of the major issues in the GOAs Amicus Brief are eliminated, leaving Olofson's only hope as the Staples instruction.

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As well it should. A malfunctioning firearm that is fixed right away is a malfunctioning firearm. One that is *gigglegiggle* kept for a few years after "malfunction" raises an inference of an attempt to circumvent the law.
You misunderstood my example. The weapon in question didn't malfunction until it was used with a 16" upper with a semi-auto bolt carrier group. Supposed that our client had never changed the configuration and rarely shot the rifle. What if it sat in his safe for a few years and was sold to someone else? That person shot it a few more years and then swept up in the great M4 craze of 1999, adds a 16" upper and starts having problems. Under the precedent established by Olofson, the government doesn't have to share any letters from the ATF to FFLs or manufacturers discussing whether lower was manufactured with M16 parts. The defense firearms expert doesn't get to hear any testimony from the prosecution firearms expert and therefore can't rebut any statements that aren't in the pretrial discovery. Finally, the statutory definition means that this is a machinegun. Can anybody here not imagine themselves or someone they know in that scenario? Is anybody here willing to forego those same protections for themselves just to make double-sure that Olofson (who can be charged under UCMJ and is going to prison anyway) gets convicted?

If we don't address it here with Olofson, then when do we address it? Later on when someone who isn't a habitual criminal finally gets caught up in this? The problem with the "wait until someone worthy gets caught in the net" approach is that by that time, not only Olofson; but several dozen other habitual criminal types will have been convicted on that same precedent. At that point, the Court of Appeals can either revise the law for our worthy cause (and subsequently revisit every one of those previous convictions of people who do need to be locked up), or they can send our guy down the river. I don't think the case will get stronger the more we wait, in fact, I think just the opposite will happen - which is why it is time to deal with these issues now rather than later when someone more likable comes along with a similar problem.
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Old February 5, 2009, 02:59 PM   #52
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The issue here isn't whether Olofson is guilty or not, it is whether or not a prosecutor should get to be the one to make that decision.
But thats the way the system is set up. Thats the way it works for all Federal trials, with the judge having discretion to inspect in camera.

The mere existence of a procedure in common use applied to a gunwoobie Defendant does not make the case a conspiracy against the gunwoobie qua gunwoobie.

In how many crinimal trials are brady violations claimed? Every one I bet. How many are true. very few.

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In any case, the prosecution had agreed to have the defense expert present during the prosecution expert's testimony and changed their tune on the same day as the testimony.
And that is relevant how? Common tactic. Both sides skirt the line. A defendant is entitled to a fair trial, not a perfect one. When I was trying cases, I would ask deliberately inflammatory/objectionable questions (Please, please, Mr. WA, can we ask a question as opposed to making speeches) knowing full well that once the bell is rung it can't be unrung.

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Under the precedent established by Olofson, the government doesn't have to share any letters from the ATF to FFLs or manufacturers discussing whether lower was manufactured with M16 parts.
District court evidentiary rulings are not precedent qua precendent

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The defense firearms expert doesn't get to hear any testimony from the prosecution firearms expert and therefore can't rebut any statements that aren't in the pretrial discovery.
So what? Straw issue. Experts are rarely permitted to to listen to the proof. Witnesses are routinely excluded. It's the job of the attorneys to ask the right questions...the defense attorney was there and I am sure could have done everyhting he needed to do with his own expert.

Let me digress here: Any trial is a game of chess. Fake outs are common. You use tactics to screw with your opponent. Lets talk about the "letter". Assume arguendo that the letter was innocuous. By not turning it over, the AUSA has created a doubt in the mind of the defense....hey maybe there is something there. The defense is then deflected in it's strategy, it concentrates on the letter that is meaningless anyway to the exclusion or minimization of something else. Now, on appeal, the Circuit Court sees the letter...poof..there is nothing. Much ado about nothing!

I used to play the same tricks as a defense attorney. You take a piece of paper with your grocery list. You walk up with it to the witness, stand by the box facing the jury, look at the list and ask the witness while looking at the jury "Now isn't it true that..........." with a smile on your face. Now the witness is wondering..what the hell is on that paper. The prosecutor is saying to himself, hey wait, whats on that document. The jury is thinking, hmmm the guy has somehting there..No matter how the witness answers you win...if he gives you an answer you don't like, you look at the paper, give a roll eye grimace and move on. If he gives you the answer you like, you say "of course thats the case", look at the paper and move on. Now the Prosecutor is wondering even more...whats on that paper! He's deflected, nervous and on it goes....

Thats they way the system works. thats the way trials work.

You are letting your inner gunwoobie come out. Let it go. if this was a case of child **** and heroin dealing, you would be less inclined to be worrying about hypothetical Brady violations and harmless errors in trials.

Analyze this case not as a gun owner, not as a defense lawyer, not as a prosecutor but as a critical thinker. remember the apocryphal Abe Lincoln story:

he goes in before a Judge in the morning, argues a case in favor of his client. Judge grants the relief he wants. In the afternoon, he argues another case, same facts but asking for the opposite result. the Judge says: 'Mr Lincoln, didnt you, this very morning, on the same facts, argue for the opposite result?"

Lincoln responded "yes Judge, I did, but this afternoon, I'm right"

Our system isn't perfect. My prediction here is as I set forth above in response to Al.

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Old February 5, 2009, 03:18 PM   #53
vranasaurus
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I doubt the circuit court rules on the definition of a machine gun. Since there is no evidence that the firearm in questioned malfunctioned no need to decide whether or not a malfunciton does or does not make a firearm a machine gun.
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Old February 5, 2009, 03:26 PM   #54
Bartholomew Roberts
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Originally Posted by WA
District court evidentiary rulings are not precedent qua precendent
What about Court of Appeals rulings on those evidentiary rulings (where we are at now and where GOA is taking this)? If the trial judge here rules that he doesn't see how a letter stating whether a rifle was manufactured with machinegun parts is exculpatory and the Court of Appeals holds that this is harmless error - wil future ATF prosecutions be more or less likely to share that type of evidence with the defense? Is our system of justice well served when ATF is allowed to do that?

Quote:
Originally Posted by vranasaurus
Since there is no evidence that the firearm in questioned malfunctioned no need to decide whether or not a malfunciton does or does not make a firearm a machine gun.
As it stands, the Staples definition says that if you pull the trigger and the weapon continues to fire after you release the trigger, that is not a machinegun. It is only a machinegun if the weapon fires automatically while the trigger is depressed.

The statutory definition says that if there is a single pull of the trigger and more than one round comes out, it is a machinegun, period.

The issue of whether the rifle is malfunctioning or not isn't a part of either definition; but due to the conflicting nature of these definitions, only one of them can be a jury instruction. The Court of Appeals is not deciding whether a malfunction does or does not make a machinegun. They are deciding what the definition of machinegun is given these two conflicting definitions.

The problem is that neither of those definitions distinguish between normal functioning and malfunctioning firearms. The result is that the Staples definition excludes rifles like Olofson's that probably were illegally modified but don't fire in a safe or controlled fashion. Meanwhile, the statutory definition covers rifles that are merely malfunctioning. This is the key problem that should concern gunowners.

Last edited by Bartholomew Roberts; February 5, 2009 at 03:41 PM.
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Old February 5, 2009, 04:08 PM   #55
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Quote:
The problem is that neither of those definitions distinguish between normal functioning and malfunctioning firearms. The result is that the Staples definition excludes rifles like Olofson's that probably were illegally modified but don't fire in a safe or controlled fashion. Meanwhile, the statutory definition covers rifles that are merely malfunctioning. This is the key problem that should concern gunowners.
How does either definition exlude the firearm in question?


Quote:
As used here, the terms "automatic" and "fully automatic" refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted
This definition would include intentionally modifed firearms like olofsons. I don't see how it wouldn't.

Unless you are arguing that because said weapon jammed or malfunctioned constantly when firing automatically it didn't meet the definition of staples because it didn't continue to fire while the trigger was depressed until the trigger was released or ammo expended. Which from the Lou Dobb's piece I saw is part of the defenses argument. That is a really dumb argument.

The firearm in question didn't malfunction in the sense that the malfunction was the cause of the automatic fire. It malfunctioned in the sense that it didn't fire perfectly when in auto.
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Old February 5, 2009, 04:40 PM   #56
Wildalaska
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If the trial judge here rules that he doesn't see how a letter stating whether a rifle was manufactured with machinegun parts is exculpatory and the Court of Appeals holds that this is harmless error - wil future ATF prosecutions be more or less likely to share that type of evidence with the defense? Is our system of justice well served when ATF is allowed to do that?
No. A Brady violation ruled as harmless error, imho, has no precedential value ON EITHER SIDE, since the issue of harmless error is a mixed question of law and fact. Plus, the C of A can sanction the AUSA for the violation (which is a common remedy) thereby ensuring continued compliance with Brady.

thats assuming of course that the letter was even exculpatory.

You keep harping on the letter. Answer this question...Assuming arguendo that the letter shows that the gun was made with SOME M16 parts, what is the exculpatory value of same if all the testimony and evidence unequivocally shows that the defendant knowingly made the gun run full auto and that he knew it would run full auto?


Just as an aside..please show me ANY case where the BATFE prosecuted a legitimate gun owner for a malfunctioning firearm?

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Old February 5, 2009, 05:03 PM   #57
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When I was trying cases, I would ask deliberately inflammatory/objectionable questions
I am so, completely, utterly, shocked.

edit - I have fired someones AR15 (bushmaster varminter) that malfunctioned, but only when I fired it. It would fire doubles only for me. The original owner couldnt get the gun to do that. Something about my trigger pull. I think it was firing once when the trigger was pulled and once when it was released.
That would not fit the description of 'machinegun' because it did not 'fire repeatedly until the trigger was released, or the feed device empty', but rather it fired twice, and only twice per pull/reset of the trigger.
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Old February 6, 2009, 08:37 AM   #58
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I'm a member at the Berlin Conservation Club where this happened. I don't personally know this guy but shoot with some people that do. Don't know if he is guilty or not but they say he's been on the radar for some time. I guess he helps people out with tax issues, zoning issues, or anything else to do with the goverment trying to tell you what you can and can't do. They say this has made him a target for a long time. I was told that he open carried and got arrested for something like disturbing the peace in the past. He fought the case and eventually won since it is legal in Wisconsin. I haven't read all posts on this thread but don't believe everything you read/hear on the news. I've heard he is a standup guy from local down to earth people and that's more than enough for me to with hold judgement on him.

Not saying if he is guilty or not but I do know his charactor has been attacked and defiled.

Just though everyone should know.
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Old February 6, 2009, 08:57 AM   #59
Bartholomew Roberts
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Quote:
Originally Posted by WA
You keep harping on the letter. Answer this question...Assuming arguendo that the letter shows that the gun was made with SOME M16 parts, what is the exculpatory value of same if all the testimony and evidence unequivocally shows that the defendant knowingly made the gun run full auto and that he knew it would run full auto?
If all the testimony and evidence shows that unequivocally, then the exculpatory value is zero. If you take a strict interpretation of the federal statute, then the exculpatory value is zero even if the evidence is less than unequivocal since under a strict interpretation you need only two elements basically:

1. Did it go bang more than once when the trigger was pulled?
2. Did you know it would do this?

In Olofson's case, the answer to both is clearly yes (since he admitted to it himself). That is one of the troubling aspects about a strict interpretation of the federal statute. If you wanted to carry it to ridiculous lengths, you could make an argument that based on literal interpretation of the statute, it was illegal to transfer possession to a normal FFL so that the problem could be fixed. Now, I don't see that as a realistic problem; but if the statute was written better, it wouldn't be an issue at all.

Quote:
an aside..please show me ANY case where the BATFE prosecuted a legitimate gun owner for a malfunctioning firearm?
Well, before I could answer that, I would have to know who you consider a legitimate gun owner. As to BATFE, they have been known to try to stretch the boundaries of the law in cases where they felt strongly that they were right.

Quote:
Originally Posted by vranasaurus
This definition would include intentionally modifed firearms like olofsons. I don't see how it wouldn't.
Well, the intention in modifying the weapon wouldn't be included because neither definition makes any mention of the intention being relevant. Under the Staples definition, a firearm is not a machinegun unless it "fires automatically until the trigger is released or it runs out of ammunition." Using this definition, Olofson's rifle would not be a machinegun for either of two reasons:

1. It stops firing automatically before the trigger is released.
2. It continues to fire automatically after the trigger is released.

Quote:
Which from the Lou Dobb's piece I saw is part of the defenses argument. That is a really dumb argument.
What is dumb about it? Isn't that pretty much exactly what the Staples definition says?

Last edited by Bartholomew Roberts; February 6, 2009 at 09:04 AM.
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Old February 6, 2009, 10:15 AM   #60
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I wish to publicly thank all the participants of this thread.

While it may have started off on a rather weak footing, with the help of everyone, it has taken the high road and is arguably one of the best threads yet to come out of this new forum.

Kudos to all!

I would like to close this thread (or maybe just let it sink) until such a time that the Circuit decision comes out. Is there any further discussion to be presented on the issues presented by this case? Any points that have not been covered?

Note: This isn't a vote. It's a call for further discussion (if there is any). If you have none, then simply don't respond - it will be deleted.
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Old February 6, 2009, 02:27 PM   #61
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Experts are rarely permitted to to listen to the proof. Witnesses are routinely excluded.
Expert testimony is not treated the same as witness testimony.

Experts are supposed to provide objective factual evidence within their area of expertise.
They are almost always allowed to hear the testimony of others, but especially the opposing sides experts, to aid the side them hired them in interpreting and formulating questions for the opposing experts.

I have testified as an expert witness a couple times as a professional engineer.
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Old February 6, 2009, 04:06 PM   #62
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Experts are supposed to provide objective factual evidence within their area of expertise.
They are almost always allowed to hear the testimony of others, but especially the opposing sides experts, to aid the side them hired them in interpreting and formulating questions for the opposing experts.

I have testified as an expert witness a couple times as a professional engineer.
State or Federal Court?

Federal Rule Of evidence Rule 615

Rule 615. Exclusion of Witnesses

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

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Old February 6, 2009, 04:51 PM   #63
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I found more details of the case I mentioned in my earlier post. The ATF went after a competition shooter named John Glover because his FAL went full auto due to worn parts. When a firearms expert was consulted and the reason for the malfunction was shown, the charges were dropped.

http://www.freerepublic.com/focus/f-news/1467481/posts
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Old February 6, 2009, 07:15 PM   #64
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Seven posts deleted for being off topic. sigh.

If you wish to discuss malum in se v. malum prohibitum, start a new thread.

Closed.
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