Olofson Update
David Codrea reports that Olofson’s conviction for unlawful transfer of a machine gun has been upheld.
Also:
It was not an abuse of discretion for a court to exclude the defendant’s expert from the courtroom while the government’s expert was testifying.
So, the defendant’s expert was not allowed to see nor address claims made by the government’s expert? Same government experts who have been wrong about guns before.
May 5th, 2009 at 8:50 am
Hmm. My understanding is that witnesses don’t have a right to be in the courtroom while other witnesses are testifying. Isn’t it the job of the defense attorney to say something like “The government’s witness testified to X (and let me read it to you from the transcript…); what is your expert opinion?” This sounds more like a failure on the part of the lawyer than by the judge.
May 5th, 2009 at 10:33 am
That’s always bothered me, because it limits the right of confrontation. When I could, I would have my own stenographer, but trials can be fast-paced, and even these days you do not get a real-time transcript.
May 5th, 2009 at 1:22 pm
Two words: “Tape Recorder”. Two more words: “Lousy Lawyer”.
May 5th, 2009 at 2:09 pm
As Matt Groom said.
The things that bother me the most are (in reverse order):
1. The prosecutor had agreed not to sequester the defense’s expert witness, then changed his mind at literally the last second;
2. The defense’s expert witness was not allowed anything more than a fleeting and cursory inspection of the rifle;
3. The judge as much as admitted that it was a malfunction, and that Olofson had not modified the rifle, but said it was a machine gun anyway.
No. 3 is the most important part of this case, and I have to wonder why that misinterpretation of the law wasn’t challenged in the appeal. It creates a horrendous precedent.
May 5th, 2009 at 3:19 pm
In any case, I read the opinion and it does sound like the guy was guilty. He had made a malfunctioning full-auto, one that was ammo-sensitive and would jam after three or four rounds on full-auto unless the correct ammunition was used. Not a malfunctioning semi-auto that would go full-auto unless the correct ammunition was used.
May 5th, 2009 at 3:27 pm
The lawyer did object to Savage’s exclusion, and the judge even asked the prosecutor why he changed his mind and reneged on what he’d agreed to earlier, asking him “So have you in effect duped the defense by saying on the one hand everyone can be in and suggesting to the defense that there will be no problem with its expert and now changing course?”
And then he sided with the government.
May 5th, 2009 at 3:36 pm
@nk
The defendant made NO modifications to the weapon of any kind. The gun was as-delivered from the manufacturer.
This means that if your new whiz-bang plastic-fantastic pistol malfunctions and rips more than one shot off while at the range, you too will be defending your life and reputation to the BATFE.
I hope you fare as well as Olofson…
Read all of the facts before you opine. It will save you some embarrassment later.
Pax,
Newbius
May 5th, 2009 at 3:52 pm
There’s some question with respect to that. ATF says yes, Olfson says no.
May 5th, 2009 at 4:23 pm
The decision does not squarely address it because the charge was transfer and not manufacture, but it sounds like a parts gun to me. “Four of the AR-15’s 1 fire control components were parts from M-16 rifles: the trigger, hammer, disconnector, and selector
switch.” Olofson also offered to order the parts and “assemble” a new rifle for the guy with the Polish name, since the advertised one had been sold, not order him a completed one.
May 5th, 2009 at 4:26 pm
And I don’t want the guy to go to prison and lose his gun ownership rights over this, either. But he knew the gun could go semi-auto by pushing the selector all the way over and he did nothing about it.
May 5th, 2009 at 4:27 pm
could go *full-auto*
May 5th, 2009 at 4:46 pm
Yea, he’s screwed.
The weapon would go into slam-fire mode if you shoved the lever all the way over. He knew it would do this from his witnessed statements at the range.
Under the NFA, this IS an MG. Not a safe to use MG, but an MG never the less. Sorry folks.
The last time I had an old .22lr double on me, I stopped shooting it, took the worn parts out of it, and had it fixed ASAP. I did not take it to the range.
I think the NFA is an infringement as well … but if I took an unregistered FA to a range, I wouldn’t be surprised to find a bunch of JBTs beating down my door.
May 5th, 2009 at 4:49 pm
BTW … I hope he is able to use the procedural goofs of the judge to get off.
In a sane society, a sixteen year old girl should be able to buy a belt fed from a hardware store.
May 5th, 2009 at 5:35 pm
nk:
My understanding is that it was not a parts gun. Olofson’s original attorney attempted to obtain documents showing that that particular brand, at the time that rifle was manufactured, was made with that particular combination of parts. The government got them suppressed because they included “confidential tax information.” The judge suppressed the documents without even bothering to see if the “confidential” information could be redacted without effecting the relevant information.
In fact, those documents supposedly show that the ATF ordered the manufacturer to stop using that combination of parts because this exact malfunction could occur. What they did not have them do was issue a recall, or notify any owners, or anything. Most importantly, even though they knew this could happen, they did not reclassify those rifles as machine guns.
A malfunction does not make it a machine gun.
May 5th, 2009 at 7:59 pm
The defendant made NO modifications to the weapon of any kind.
There’s some question with respect to that. ATF says yes, Olfson says no.- Uncle.
There is a great deal more likelihood the modifications were done by the ATF. Remember, the first time FTB (firearms testing bureau or board) returned it to the the local office with the opinion that it was “just a rifle” as he could not get it to fire multi’s on one triggeer pull. It was returned to him to prove it was a machine gun, despite his earlier opinion. All of a sudden it is a machine gun.
Savage didn’t get to examine the gun. He could only look at it from a distance of several feet. He was not permitted to do a hands-on examination. Nor was there any corroboration that the gun being fired in the video was the Olofson gun.
I wouldn’t be too quick to buy the government’s story. When the evidence supports your case you don’t have to cheat. They cheated in many ways, including withholding evidence the defense was due under the process of discovery.
So, even though the law itself is illegal, it appears that the government could not even meet the levels of proof to win at trial without cheating.
I repeat, if the evidence supports your case you don’t need to cheat to gain a conviction. They cheated. What does that suggest about their evidence?
May 5th, 2009 at 8:06 pm
FWIW, I don’t. But I don’t buy Olofson’s either.
May 5th, 2009 at 8:14 pm
Not entirely off-topic, if I remember correctly the first Valmet AKs imported had been “converted” to semi-auto-only by just a pin that prevented the selector from going to the third position. If I also remember correctly, Valmet refused to redesign the guns’ innards according to BATF’s demands and just stopped selling them here.
May 6th, 2009 at 5:23 am
**I wouldn’t be too quick to buy the government’s story.**
“FWIW, I don’t. But I don’t buy Olofson’s either.”
Sure. I don’t know who to believe either. But who bears the burden of proof?
May 6th, 2009 at 8:06 am
well, that’s the problem.
May 7th, 2009 at 7:10 am
The government always has the burden to prove the defendant guilty beyond a reasonable doubt. But once a jury has rendered its verdict, the standard on appeal is not whether the appellate court, sitting as jurors, would have reached a different decision. It is, taking into account the totality of the evidence, whether no reasonable jury would have reached that decision.
May 7th, 2009 at 2:42 pm
Actually no. At the appeals level the guilt or innocence of the defendant has no bearing whatsoever. The only thing to be determined is did the defendant receive a fair trial, were his rights respected or violated, was there misconduct which would deny the defendant a fair trial, in other words was there reversible error in the conduct of the trial?
If there were no reversible errors in the conduct of the trial, even if the defendant can be proven totally innocent of the crime, it matters not. The conviction stands.
A defendant’s only hope then is that if he did not do the crime, but was convicted anyway, is that the state cheated to convict him, and that he can prove it on appeal. Errors in the trial by prosecutor or judge will not gain a reversal, they must be “reversible errors”. A much higher standard.
May 8th, 2009 at 1:32 pm
Sigh.