Updates
Found ths at another forum.
"I did find last evenings broadcast surprising to say the least. Here is a link to part 3 & 4, along with some of the submitted paperwork. Please note that half of the net broadcast is not there, that being the part with the LEAA ripping the ATF on their practices. But the first half is still intact. I would hope everyone who hasn’t already would drop Lou Dobbs a note and thank him for what can only be described as unwavering and steadfast support for gun owners the likes of which I have never seen on a major network. It looks like we now have one singular friend in the mainstream media not afraid to stand up on our rights and take a rock solid stand, not just give it passing lip service. Don’t let that support go unnoticed."
http://www.cnn.com/video/#/video/bestoftv/2008/05/07/ldt.gov.guns.cnn
http://www.cnn.com/video/?/video/bestoftv/2008/05/08/ldt.tucker.govt.guns.cnn
Ok. A lot of folks have been asking questions about what the ATF pulled down from their web sight to try to hide it from sight. This is a copy of it.
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
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
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
Some of the prior motion these relate to.
Just ask the families of Border Patol agents Ramos and Compean. Imprisoned for stopping a protected drug shipment from a politically connected cartel. Then president Bush 41 didn't lie when he referred to the ATF as "jackbooted thugs". Now I can understand those members with FFLs to protect kissing BATF butt. Their jobs and businesses reply on the the good will of agents that could shut them down on a whim. What amazes me are those that will alway find a way to excuse any excess from perjury to murder if it's committed by someone carrying a badge. I just hope you feel the same way when President Obama sends them after your guns. I assume that you'll hand them over with a smile and rat your gun owning neighbors off. 
