Posted on 08/30/2009 9:16:05 AM PDT by Copernicus
Attorney David T. Hardy sums it up nicely:
The courtroom equivalent of "the dog ate my homework. Five times."...
The prosecutor is trying to dodge and weave on why certain important documents were not disclosed to the defense, despite a court order, and neither the judge nor the defense attorney is giving him an inch of slack.
(Excerpt) Read more at examiner.com ...
Best regards to all,
Amen!
This is quite interesting. What is it with the ATF?
Bureau of Alcohol, Tobacco, Firearms and Explosives should be the name of a one stop party store not a gubmint agency.
Try this: http://www.examiner.com/x-1417-Gun-Rights-Examiner~y2009m8d30-Why-ATF-folded-in-Friesen-case
This unit needs to be abolished, especially the firearms and explosives units.
People don't understand how far the government has gotten out of control. They basically have a blank checkbook and an endless "Book of Criminal Offenses" with which to pursue their victims.
You are usually forced to plead, and part of the plea deal is giving up some of your Rights as a free man. "Probation" is something the Founders wouldn't have recognized, nor a concept they would have understood. Free men don't live under the "supervision" of the State after they've paid for their "crime".
Yet, that's the system we have now.
I agree.
Amen.
Did a BATF agent perjure himself on the witness stand? If so, what will be the ramifications?
I might be wrong, but David Hardy was the attorney who defended the Branch Davidians after the Waco debacle.
Maybe I’m just dense but I don’t see how this is a win for our side.
The court could have sentenced him to a year in prison. See question 12B on form 4473. It means Friesen is now a prohibited person, the way I read it.
Wow, that was one poorly written article. A paragraph explaining the whole background would have helped.
Glad I'm not the only one to think that.
I kept going waiting to find out just what the heck he was talking about. It sounded very important, but he never really said why...
The probation is a loss. He shouldn’t have accepted that as a condition of dropping the other charges when the BATFags didn’t have a leg to stand on.
The NFA needs to be abolished, as does the NICS system and all provisions of GCA ‘68. There should be no laws restricting the purchase, possession, or carrying of firearms by any non-incarcerated person.
Agreed. Sounds though like he found the chink in the armor. I think the gun groups and anyone under prosecution by the ATFE needs to zero in and exploit it.
See U.S. v. Dalton. Money quote:
Finally, the government argues that the Gun Control Act, of which section 922(o) is a part, should not be viewed as repealing the National Firearms Act, citing a provision of the Gun Control Act passed in 1968 to that effect. The court in Rock Island Armory rejected the same government argument, observing that "the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986 and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis."
773 F. Supp. at 126 (footnote omitted).
The government is correct that a statute is repealed by implication only when that statute and a later statute are irreconcilable. See, e.g., Morton v. Mancari, 417 U.S. 533, 549-51 (1974). In our view, however, that is exactly the situation here. Sections 5861(d) and (e) punish the failure to register a machinegun at the same time that the government refuses to accept this required registration due to the ban imposed by section 922(o). As a result of section 922(o), compliance with section 5861 is impossible.
Accordingly, we vacate Dalton's conviction and reverse with instructions to dismiss the indictment. In so doing, we recognize that the illegal possession of a machinegun is a most serious matter. However, it is precisely because this conduct raises such grave concerns that the government must exercise its prosecuting responsibility with care. The decision to proceed under an inapplicable statute has resulted in a constitutionally infirm conviction.
VACATED AND REMANDED.
And U.S. v. Rock Island Armory. Money quote:
The enactment of 18 U.S.C. sec. 922(o) in 1986 removed the constitutional legitimacy of registration as an aid to tax collection. This is because the government interprets and enforces sec. 922(o) to disallow registration, and refuses to collect the tax. Farmer v. Higgins, 907 F.2d 1041, 1042-44 (11th Cir.1990), cert. denied, - U.S. - , III S.Ct. 753, 112 L.Ed.2d 773 (1991). Thus, sec. 922(o) undercut the constitutional basis of registration which had been the rule since Sonzinsky.
Finally, the prosecution quotes an enactment passed in 1968 that the provisions of Title I of the Gun Control Act shall not modify or affect the National Firearms Act. (Footnote 15) However, the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). (Footnote 16) Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, I Cranch. 137, 176-77, 2 L.Ed. 60 (1803).
In sum, since enactment of 18 U.S.C. sec. 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts l(a) and (b), 2, and 3 of the superseding indictment are
DISMISSED.
Neither of these cases were appealed by FedGov because of the huge implications of a loss.
“incompetent boobs...”
Soon these same folks may be reviewing your health files and making decisions as to what medical care you deserve.
Your post clears it up. We have one law, not repealed, requiring registration, and another that prevents it. So, even if one were to attempt to follow the law, another law itself prevents it.
I guess that leaves me with this: Why has it taken since 1986 to discover and do anything about it?
>>They basically have a blank checkbook and an endless “Book of Criminal Offenses” with which to pursue their victims.
See the Rand quote that leads off my FR profile page.
The ATF should be three separate aisles at the local supermarket.
It is a rogue government agency that uses scare tactics and bullying to imprison decent citizens. They will tell bald faced lies under oath to convict someone.
First, there are no written procedures for an agent to determine if a gun is a machine gun or if it is simply malfunctioning.
There is one case where the gun was malfunctioning and would occasionally double fire (fire two rounds even though the trigger was pulled once). The ATF SWORE that the rifle was “illegally modified to be a machine gun”. Again there were absolutely no written standards for the agents to follow of what to look for or even how to test the gun. When push came to shove, the owner of the gun hired an independent firearms expert to inspect it in the presence of the ATF. Within 5 minutes the expert had disassembled the bolt and found a broken firing pin. The pin had broken in such a way that sometimes it would stick with the firing pin protruding from the bolt and hit the back of the cartridge causing what is known as a slam fire.
Secondly, the records for machine guns are horribly inaccurate yet the agents have been told to testify that the records are “100% accurate”.
I watched an ATF agent testify at a trial. The man was first qualified as an expert, then testified at length that a machine gun was a firearm that could fire more than one round with a single pull of the trigger.
There you have it. It’s the testimony that matters.
Google up "Institutional Perjury" sometime and see what you get.
L
Going by history, a promotion and a raise.
He only told part of the truth. The law allows that a malfunctioning firearm that fires more than one round per trigger pull is NOT a machine gun, but simply that, a malfunctioning firearm. Any lawyer with his salt would have made the agent admit this.
I don't know. Why have you not heard of the NRA trumpeting either of the cases I posted? They aren't recent.
“Did a BATF agent perjure himself on the witness stand? If so, what will be the ramifications?”
Probably promotion to Attorney General.
Really? What the heck is your point? I think I pointed out they keep adding initials to there name. It just keeps getting longer and longer because they add another layer of bureaucracy to it periodically. It started as the Bureau of Tax and Alcohol, now it has firearms and explosives added to it. Still don’t get your point, misread my post? Think I’m stupid? Something like that?
Nope, not misreading your post and don't think you're stupid.
Just a play on words/initials.
The government keeps thinking they can control all manner of things, including the FATE of the individual.
;-)>
Bump for STUPID Jackboots!
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