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ATF Unhinged: Prosecutions Made Up Out of Whole Cloth — You Might Be Next…

via ATF Unhinged: Pros­e­cu­tions Made Up Out of Whole Cloth — You Might Be Next…

Since the Law Vegas shoot­ing and what some con­tend has been a takeover by Depart­ment of Jus­tice (which in some con­texts appears to be accu­rate), ATF has begun inter­nal­ly revers­ing pri­or deter­mi­na­tions and mak­ing up new inter­pre­ta­tions of law, in the absence of inform­ing the Firearms Indus­try or the pub­lic of these rever­sals and/or new inter­pre­ta­tions. More dis­con­cert­ing, this men­tal­i­ty has now seem­ing­ly infect­ed cer­tain U.S. Attor­ney Offices, which is alarm­ing to say the least.

Although I can­not dis­close all of the occa­sions where ATF has recent­ly reversed its pri­or deter­mi­na­tions or devised a new inter­pre­ta­tion of the law or reg­u­la­tion, I can dis­close a recent pros­e­cu­tion, of a vet­er­an, where ATF devised a new inter­pre­ta­tion out of whole cloth and was suc­cess­ful in con­vinc­ing the U.S. Attorney’s Office for the North­ern Dis­trict of Ohio to pros­e­cute. The case is U.S. v. Wright, 3:18-CR-162 and it should have the entire Firearms Com­mu­ni­ty alarmed.

Although many of the doc­u­ments have been sealed by the Court (that should tell you a good bit already), the super­sed­ing indict­ment is pub­licly avail­able and sug­gests that Mr. Wright had an unreg­is­tered short-bar­relled rifle (SBR) that was not reg­is­tered in the Nation­al Firearms Reg­is­tra­tion and Trans­fer Record (NFRTR). Regard­less of whether you believe the Nation­al Firearms Act is con­sti­tu­tion­al or appro­pri­ate, at the time of writ­ing this arti­cle, the courts have not yet found it to be uncon­sti­tu­tion­al and if mere­ly inap­pro­pri­ate, one’s prop­er recourse is to seek a statu­to­ry dele­tion or revi­sion. Thus, the pos­ses­sion of an unreg­is­tered SBR is unlaw­ful. So, why is this case con­cern­ing? Unfor­tu­nate­ly most of the infor­ma­tive doc­u­ments have been sealed…that is, except for the Government’s Motion in Lim­ine. (For those who don’t know what a motion in lim­ine is, it is a motion filed by a par­ty which asks the court for an order or rul­ing lim­it­ing or pre­vent­ing cer­tain evi­dence from being pre­sent­ed dur­ing a tri­al).

When you review the Motion in Lim­ine, you quick­ly learn that the Gov­ern­ment is seek­ing to pre­clude ATF FATD (Firearms and Ammu­ni­tion Tech­nol­o­gy Divi­sion) deter­mi­na­tions from being used in any way dur­ing tri­al. These deter­mi­na­tions appear to have been part of a dis­cov­ery dis­pute, which is also sealed and is evi­denced by the Government’s state­ment that “[t]he Gov­ern­ment pro­duced the let­ters under the pro­tec­tion of a pro­tec­tive order that the Court autho­rized on August 1, 2018.”. For the rea­sons that fol­low, I find it extreme­ly com­i­cal that the Gov­ern­ment actu­al­ly con­tend­ed that “ATF FATD let­ters at tri­al cre­ates a grave risk of con­fus­ing the issues and mis­lead­ing the jury,” but I digress…for now.

We quick­ly learn from the Gov­ern­ment that:

The crit­i­cal issue in this case will not be pos­ses­sion, reg­is­tra­tion (or lack there­of), or bar­rel length. Ulti­mate­ly, the pri­ma­ry issue in dis­pute at tri­al will be whether or not Kel­land Wright’s firearm meets the def­i­n­i­tion of a “rifle,” that is a firearm designed to be fired from the shoul­der, see 26 U.S.C. § 5845(a). Part of this issue will cen­ter on the impli­ca­tions mod­i­fi­ca­tions that Kel­land Wright made or had made to the firearm, includ­ing the addi­tion of an exten­sion piece to the rear of the firearm.

Hmmm, so now we know that the issue is whether the piece added to his Ar-15 pis­tol con­sti­tut­ed a “stock” or not. The Gov­ern­ment fur­ther con­tends:

Wright’s expert, Richard Vasquez, is expect­ed to tes­ti­fy that the exten­sion piece func­tions as a cheek rest. The Government’s expert, Firearms Enforce­ment Offi­cer Eve E. Eisen­bise, is expect­ed to tes­ti­fy that the exten­sion piece makes the firearm designed to be fired from the shoul­der. Offi­cer Eisen­bise is an employ­ee of the ATF FATD. Richard Vasquez for­mer­ly was employed by the FATD.

The rel­e­vant issues at tri­al relate to the specifics of Wright’s firearm, an AR pis­tol plat­form that was mod­i­fied with an angled fore­grip and col­lapsi­ble stock.

Now, every­thing starts to come into light. The Gov­ern­ment is con­tend­ing that an exten­sion piece that is designed as a cheek rest is actu­al­ly a stock or if not, Mr. Wright had a ver­ti­cal fore­grip on his pis­tol. (We call this rop­ing a heifer, where the Gov­ern­ment attempts to con­tend that no mat­ter how you clas­si­fy the sit­u­a­tion, you have vio­lat­ed some law). Now, some of you are prob­a­bly say­ing, hold on, ATF pre­vi­ous­ly issued deter­mi­na­tions – such as in rela­tion to the Thors­den deter­mi­na­tion request let­ter and ATF’s response – that cheek rests and oth­er devices, which were not designed to be shoul­dered, are not stocks. (For more dis­cus­sion on cheek weld deter­mi­na­tions, see our blog arti­cle Ring­ing In the New Year ATF Style). And they have issued numer­ous deter­mi­na­tions – such as the one regard­ing the Mag­pul Angled Fore-Grip – that angled fore­grips are not ver­ti­cal pis­tol grips. Yep, but that didn’t stop the ATF and the U.S Attorney’s Office from pros­e­cut­ing Mr. Wright and seek­ing to pre­clude the jurors from see­ing or hear­ing of the deter­mi­na­tion let­ters, even though, the Gov­ern­ment nev­er once con­tend­ed that Mr. Wright actu­al­ly shoul­dered the cheek weld exten­sion or uti­lized the angled fore­grip.

For those inter­est­ed in what the prod­ucts involved actu­al­ly were, you can dis­cern them from the Cer­ti­fi­ca­tion of Exhibits, which thank­ful­ly wasn’t sealed. And here is the dock­et.

Thank­ful­ly, after only delib­er­at­ing for a very short time over lunch, the jurors came back with a ver­dict of not guilty. How­ev­er, Mr. Wright has like­ly incurred tens of thou­sands of dol­lars of attor­ney fees and costs fight­ing for his free­dom – all because ATF decid­ed that it would invent a new inter­pre­ta­tion of the law and it did so with­out noti­fy­ing the Indus­try or the pub­lic. Let that sink in for a cou­ple min­utes…

If you are being unjust­ly pros­e­cut­ed due to an alleged vio­la­tion of the Gun Con­trol Act or Nation­al Firearms Act, or are seek­ing to obtain a deter­mi­na­tion regard­ing the law­ful­ness of your prod­uct, con­tact Firearms Indus­try Con­sult­ing Group today to dis­cuss YOUR rights and legal options.


Firearms Indus­try Con­sult­ing Group® (FICG®) is a reg­is­tered trade­mark and divi­sion of Civ­il Rights Defense Firm, P.C., with rights and per­mis­sions grant­ed to Prince Law Offices, P.C. to use in this arti­cle.

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ER1C ☠

ER1C ☠

Dedicated Second Amendment Advocate, At-Home Gunsmith, Designer, Blogger, Video Guy, Author, Business Owner & ReloadOne Member.

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