UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK et al.,

 Plaintiffs, Case No. 4:22-cv-00691-O

 v.

MERRICK GARLAND, in his official 

capacity as Attorney General of the United 

States et al., 

 Defendants.

APPENDIX IN SUPPORT OF DEFENDANTS’ REPLY BRIEF IN 

SUPPORT OF THEIR CROSS-MOTION FOR SUMMARY JUDGMENT

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 1 of 183 PageID 4154
1 

Document Date Bates Numbers Document Numbers

ATF Memorandum 

#22334 

Jan. 24, 1977 ATF000005-000009 Defs.’ Reply App. 001-005

Internal Revenue Service

Memoranda #21208

March 1, 1971 ATF000001-000004 Defs.’ Reply App. 006-009

Transcript of Motion 

Hearing, United States v. 

Rowold, No. 3:18-cr-387 

(N.D. Ohio) 

Sept. 26, 2019 ATF071283-071445 Defs.’ Reply App. 010-172

United States v. Roh, 

No. 8:14-cr-167 (C.D. 

Cal.), ECF No. 164

July 27, 2020 N/A Defs.’ Reply App. 173-180

DATED: April 6, 2023 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

ALEXANDER K. HAAS

Director, Federal Programs Branch

LESLEY FARBY

Assistant Director, Federal Programs Branch

/s/ Daniel Riess 

DANIEL RIESS

TAISA M. GOODNATURE

JEREMY S.B. NEWMAN

Trial Attorneys

Civil Division, Federal Programs Branch

U.S. Department of Justice

1100 L Street, NW

Washington, DC 20005

Phone: (202) 353-3098

Email: Daniel.Riess@usdoj.gov 

Attorneys for Defendants

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 2 of 183 PageID 4155
2 

CERTIFICATE OF SERVICE

On April 6, 2023, I electronically submitted the foregoing document with the clerk of court 

for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the 

court. I hereby certify that I have served all parties electronically or by another manner authorized by 

Federal Rule of Civil Procedure 5(b)(2). 

/s/ Daniel Riess

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 3 of 183 PageID 4156
ATF000005

CRN 

Criminal. Enf. - FIREARMS: 

FN FAL Machinegun Receivers (T-II) 

l'lAl,11.lN ~l,Ul'<;) 

Jan. 24, 1977 

The Central Region has raised a question concerning the FN FAL machinegun split 

receiver which you believe should be reconciled since their position with respect thereto 

appears to conflict with an opinion of the Office of Technical and Scientific Services. 

Basically, the FN FAL rifle was designed to fire automatically and was the standard 

weapon of the NATO ground forces. Several thousand of these weapons were lawfully imported 

into the United States after a slight modification had been ma.de of the upper portion of the 

receiver which would prevent automatic fire. With regard to these weapons, the upper receiver which had been designed for automatic fire had been modified. It is a simple process 

to adapt these weapons so they can fire automatically. 

r.:any more FN FAL rifles have been imported which utilize an upper receiver which was 

designed and manufactured to fire semi-automatically. Such weapons are true sporting rifles 

and were never manufactured from a machinegun. The upper half of the receiver of the 11 sporting" rifle cannot be easily converted to fire automatically. 

Since the design of the upper half of the receiver is the only distinguishing 

characteristic between those semi-automatic FN FAL rifles made from a machinegun and the 

true 11 sporting11 version, it appears to us that this is the portion of the receiver that 

should bear the serial number. 

See: Digest #21208, 3/1/71. 

(1) 

Defs.' Reply App. 001

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 4 of 183 PageID 4157
ATF000006

Subject: 

Ruling: 

Date: 

Auth: 

Keywords: 

0000824 

22334.0 

19770124 

CRN 

FN FAL Machinegun Receivers (T-II) 

Law-Regs: 

Machineguns, Receivers, Rifles 

Related Opinions: 

Summary: 

21208 

The Central Region has raised a 

question concerning the FN FAL machinegun split receiver which 

Criminal Enforcement believes should be reconciled since their 

position with respect thereto appears to conflict with an opinion 

of Office of Technical and Scientific Services. 

Basically, the FN FAL rifle was designed to fire 

automatically and was standard weapon of NATO ground forces. 

Several thousand of these weapons were lawfully imported into the 

United States after a slight modification had been made of upper 

portion of receiver which would prevent automatic fire. With 

regard to these weapons, the upper receiver which has been 

designed for automatic fire had been modified. It is simple 

process to adapt these weapons so they can fire 

automatically. 

imported which 

Many more FN FAL rifles have been 

utilize an upper receiver which was designed & 

manufactured to fire semiautomatically. Such weapons are true 

sporting rifles and were never manufactured from a machinegun. 

The upper half of receiver of "sporting" rifle cannot be easily 

converted to fire automatically. 

Since design of upper half of receiver is only distinguishing 

characteristic between those semiautomatic FN FAL rifles made 

from a machinegun and the true "sporting" version, it appears to 

us that this is portion of receiver that should bear the 

serial number. 

mmp 

Defs.' Reply App. 002

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 5 of 183 PageID 4158
ATF000007

CLOSED~ 

JAN 241977: CC-23,932 L:CRN 

MEMORANDUM TO: Acting Assistant Director (CE) 

FROrI: Assistant Chief Counsel. (Litigation) 

SUBJECT: FN FAL Machinegun Receivers {T-II) 

~2334 

This refers to your above-captioned memorandum which was 

received in this office on November 2, 1976. Attached 

to your memorandura was a memorandum, with attachments, 

from the Central Region pertaining to the same s1.mject. 

The Central Region has raised a question concerning 

the FN FAL machinegun split receiver which you believe 

sho\.lld be reconciled since their position with regard 

thereto appears to conflict with an opinion of the 

Office of Technical and Scientific Services. 

The particular weapon in question has a split receiver 

namely an upper and lower half. The Central Region 

believes that the J.o,;,-.rer half is the controlling· part 

and should thus be the portion which has the serial 

number impressed thereon. The Office of Technical and 

Scientific Services expresses the v;i.ew that the upper 

half is the controlling portion because it more nearly 

meets the definition of 0 receiver" as that term is 

defined in the statute and thus the upper half should 

bear the serial number of the weapon. our view$ with 

respect to this problem have been requested. 

Apparently the Central Region's view is based, at least 

in part, upon two factors, which are: 

l. In 1971 the M-16 rifle was examined by 

this Bureau and, since it also was a split 

receiver rifle the determination was made 

that the serial nu~ber should be imprinted 

upon the lower half. Even though the M-16 

was the weapon under consideration, the 

Defs.' Reply App. 003

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 6 of 183 PageID 4159
ATF000008

- 2 -

Acting Assistant Director (CE) 

memorandu.'lfl reflecting the Bureau's finding 

stated: "We have determined that the lower 

receiver is in fact the receiver of a 

machinegun as that term is used in 

section 5845(b) of the National Firearms 

Act. Therefore, it must be identified 

by the name and address of the 

manufacturer and it would also pear 

the serial number of the firearm." This 

quotation was taken completely out of 

context by some of the readers of the 

memorandum and it was erroneously assumed 

that all split receivers were to be 

treated the same as the M-16. (Such an 

assun1ption is totally incorrect.) 

2 .. It was published in Bureau Publication 

603 and its successors under "questions 

and answers" that with regard to weapons 

having both an upper and lower receiver 

the serial number must be impressed into 

the lower receiver. This question and 

answer will no longer be published. 

:·22334 

Basically, the FN FAL rifle was designed to fire 

automatically and was the standard weapon of the NATO 

ground forces. Several thousand of these weapons were 

lawfully imported into the United States after a 

slight rnodification had been made of the upper portion 

of the receiver which would prevent automatic fire.· 

With regard to these weapons, the upper receiver which 

had been designed for automatic fire had been modified. 

It is a simple proc~ss to adapt these weapons so they 

can fire automatically. 

Many more FN FAL rifles have been imported which utilize 

an upper receiver which was designed and manufactured 

to fire semi-automatically. Such weapons are true 

sporting rifles-·and were never rimnufactured from a 

machinegun. The only difference between the rifles 

referred to in this paragraph and those in the previous 

Defs.' Reply App. 004

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 7 of 183 PageID 4160
ATF000009

-

- 3 -

Acting Assistant Director (CE) 

paragraph is in design of the upper half of the 

receiver. The upper half of the receiver of the 

"sporting" rifle cannot be easily converted to fire 

automatically. 

Since tho design of the upper half of the receiver 

is the only distinguishing characteristic between 

those semi-automatic FN FAL rifles made from a 

machineguri and the true "sporting" version, it appears 

to us that this is the portion of the receiver that 

should.bear the serial number. 

It should be kept in mind.that this memorandw:u is 

addressed only to the FN FAL rifle and any other 

split receiver weapon should be examined with a view 

toward determining if. the upper or lower half of the 

receiver more nearly fits the legal definition of 

"receiver." 

We. have examined the criminal case report forwarded to 

this office with your memorandum in which at least 

one of the defendants was convicted, upon his guilty 

plea, of possessing a machinegun because he possessed 

the lower portion of an FN PAL weapon which was 

unserialized. · Once a decision has been made as to 

·whether the upper or lower half of the FN' FAL Weapon 

!:>9"'.1--.:. .,~ 

is the "receiver, 11 we believe that tha De.partm.ent of 

Justice should be advised with resoect to this criminal 

conviction so a decision can be made as to the proper 

course of action to be pursued. 

The case report forwarded by you is returned herewith. 

Attachment 

CRNolte:etc 

112,r111 · 

- ---~ ·-·:, rrtr;.··., .. •;··,,_.; . "~-

(Sisned) Jamqs R Waclit~r 

James R. Wachter 

Defs.' Reply App. 005

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 8 of 183 PageID 4161
ATF000001

JRW 26 CFR 178.11 21208 

J. F. Mccarren 

"Frame or Receiver 11 

Re: M-16 Receivers which is fabricated in two parts. 

March 1, 1971 

"Initialed" 

This matter was discussed in a conference, wmich included an examination of 

the weapon. We were assured at that time that the lower portion Hf comes closest to 

meeting the definition of frame or receiver in 26 CFR 178.ll although both parts were 

necessary to .function as a "frame or receiver" in a Jt1achine gun. 

I can see some difficulty in trying to make cases against persons possessing only 

the lower pa.rt of a receiver, but insofar as the licensing, serial numbering, and special 

occupational tax requirements are concerned, I feel that this is the only practical 

solution. 

I recommend your approval. 

ce: 26 U.S.C. 5845(b) 

~e: Fireanns(Chap 51, Title 26 u.s.c.) (3) 

Also See Initialed letter dated March 2, 1971 to Asst. Regional Commissioner, 

Mid-Atlantic Region (Proposed). 

Defs.' Reply App. 006

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 9 of 183 PageID 4162
ATF000002

Subject: 0001561 

Ruling: 21208.0 

Date: 19710301 

Auth: JRW 

Keywords: 

Possession of lower part of a receiver 

Law-Regs: 

Machineguns, frame, receiver 

Related Opinions: 

26 CFR 178.11, 26 USC 5845(b) 

Summary: 

Re: M-16 Receiver which is fabricated in two parts. 

This matter was discussed in a 

conference which included an examination of the weapon. We were 

assured at that time that the lower portion comes closet to 

meeting the definition of frame or receiver in 26 CFR 178.11 

although both parts were necessary to function as a "frame or 

receiver" in a machinegun. 

I can see 

some difficulty in trying to make cases against persons 

possessing only the lower part of the receiver, but insofar as 

the licensing, serialnumbering, and special occupational tax 

requirements are concerned, I feel that this is the only 

practical solution. 

I recommend your approval. 

emr 

Defs.' Reply App. 007

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 10 of 183 PageID 4163
ATF000003

CC:ATF-12.,736 

T:JRW 

to: J. F. NcCarren 

from: J. R. Wachter 

subject: M-16 Receivers 

March 1, 1971 

Apparently the M-16 receiver is fabricated in two 

parts, and the Enforcement Division has determined that 

the lower portion should be considered·thereceiver, 

and, thus, a machine gun under 26 U.S.C. 5845(b). · This 

matter was discussed in a conference attended by Mr. 

Powell and myself with Messrs. Darr, Westenberger, 

Scroggie, and, I believe, Mr. Wolfe, which incl.uded a .. n 

examination of the weapon. 

We were assured at that time that the lower portion 

comes closest to meeting the definition of frame or 

receiver in 26 CFR 178.11 although both parts were 

necessary to function as a ttframe or receiver" in a 

machine gun. 

I can see some difficulty in trying to make cases 

against persons possessing only the lower part of a 

receiver, but insofar as the licensing, serial nu..'1'.bering, 

and special occupational tax requirements are concerned., 

I feel that this is the only practical solution. 

I reconnnend your approval. 

_/2---. )<_,,,C < ~-~ .__,,, 

R. Wachter .. 

I Concur: ;;{Ii~~,;. d~_;_ 

W. T. Hare 

Date: _ ,17/2~,,,_/_7_/ __ _ 

Approved: ~(v\ Date: · 3, { y'L1 I 

J. F. McCerren 

·---···---

Defs.' Reply App. 008

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 11 of 183 PageID 4164
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Defs.' Reply App. 009

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 12 of 183 PageID 4165
 1

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

UNITED STATES OF AMERICA, Docket No. 3:18CR387 

Plaintiffs, Toledo, Ohio 

 v. September 26, 2019 

RICHARD L. ROWOLD and 

STEVEN J. ROBISON, 

Defendants. 

------------------------------ 

TRANSCRIPT OF MOTION HEARING 

BEFORE THE HONORABLE JAMES G. CARR 

UNITED STATES DISTRICT JUDGE 

APPEARANCES: 

For the Plaintiffs: Thomas P. Weldon 

 Office of the U.S. Attorney 

 Four SeaGate, Suite 308 

 Toledo, Ohio 43604 

(419) 242-5675

- - -

James Patrick Vann 

 Special Assistant U.S. Attorney 

 99 New York Avenue, N.E. 

 Washington, DC 20226 

(202) 648-8119

- - -

 Jonathan Sydney Jacobs 

 Special Assistant U.S. Attorney 

 244 Needy Road 

 Martinsburg, WV 25405 

(304) 433-2765

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ATF071283 Defs.' Reply App. 010

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 13 of 183 PageID 4166
 2

For the Defendant, Richard L. Rowold: 

 Thomas P. Kurt 

 610 Adams Street 43604 

 Toledo, Ohio 43604 

 (419) 241-5506 

For the Defendant, Steven J. Robison: 

Jacqueline A. Johnson and Claire R. Cahoon 

Office of the Federal Public Defender 

1660 West Second Street 

 Cleveland, Ohio 44113 

(216) 522-4856 

Court Reporter: Angela D. Nixon, RMR, CRR 

 1716 Spielbusch Avenue 

 Toledo, Ohio 43624 

 (419) 260-5259 

Proceedings recorded by mechanical stenography, transcript 

produced by notereading. 

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ATF071284 Defs.' Reply App. 011

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 3

COURTROOM DEPUTY: Case 3:18CR387, United States

of America versus Richard L. Rowold, et al. matter called

for motion to dismiss hearing.

THE COURT: Okay. And counsel, first for the

government, Mr. Weldon?

MR. WELDON: Good morning, Your Honor. This is

Tom Weldon representing the United States in this case.

Today with me, Judge, I'd like to introduce two Special

Assistant United States Attorneys. To my immediate left is

James Vann, and next to him is John Jacob somebody.

THE COURT: V-A-N-N?

MR. VANN: V-A-N-N, correct, Your Honor. Thank

you.

MR. WELDON: Judge, these two gentlemen actually

work for the Bureau of Alcohol Tobacco and Firearms, and

their chief counsel office is in West Virginia and

Washington D.C., but Justin Herdman recently swore them

both in to assist us in this matter today. 

THE COURT: Absolutely. Welcome, counsel. And

if the clerk -- if you'll just provide the contact

information, I'll have them noted as co-counsel --

MR. WELDON: Thank you, Your Honor.

THE COURT: -- pro hac vice if that's necessary.

For the defendants? 

MS. JOHNSON: Good morning, Your Honor,

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ATF071285 Defs.' Reply App. 012

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 15 of 183 PageID 4168
 4

Jacqueline Johnson and Clair Cahoon --

THE COURT: It's Clair Keegan (sic) and --

MS. JOHNSON: -- present with our client, Steve

Robison, Your Honor.

THE COURT: Okay.

MR. KURT: Your Honor, Tom Kurt representing

Mr. Rowold.

THE COURT: Just for the record, the matter comes

on to be heard on the defendant's motion to dismiss. I

guess generally the contention is that the indictment fails

to give adequate notice because the portion which

colloquially is referred to as the lower receiver, which is

at issue here contains, as I understand it, the hammer and

the firing mechanism necessary to make -- turn the weapon

into a firearm, make it operate, eject a projectile with an

explosive, but it does not contain either the bolted or the

breechblock. The statute under the Gun Control Act

simply -- in its definition as to what constitutes a

firearm simply includes the single term along with some

other categories, receiver, closed quote. Regulations

adopted by the agency define the receiver as that part of

the firearm that contains the hammer, comma, the bolt or

breechblock, comma, and the firing mechanism.

If I understand correctly, and if I don't,

counsel, please correct me, the contention is because what

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ATF071286 Defs.' Reply App. 013

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 16 of 183 PageID 4169
 5

is designated and serial numbered as -- it's not

designated, but, once again, colloquially called at least,

the lower receiver contains only the hammer and the firing

mechanism, as I indicated what is colloquially called the

upper receiver contains what, a bolt or a breechblock,

anybody know? Can somebody tell me? And perhaps counsel

with ATF --

MR. VANN: The upper receiver is colloquially,

what is referred to often as the upper receiver contains

the bolt, Your Honor.

THE COURT: Okay. I know it's not part of the

record, but I -- and I -- perhaps I could look up and

Google, I don't know, but shouldn't go shopping for

information that way. Can you describe it to me

physically? I know nothing about firearms, okay.

MS. CAHOON: Your Honor, I apologize for

interrupting, but I believe we have firearms experts both

for the defense and the government.

THE COURT: Do you have --

MS. CAHOON: There we go -- 

THE COURT: My apologies. 

MS. CAHOON: Yes. Pardon my interruption, I just

wanted to let The Court know that the defense and the

government both do have firearms experts who will be

testifying, and they'll be breaking down all of these

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ATF071287 Defs.' Reply App. 014

Case 4:22-cv-00691-O Document 199 Filed 04/06/23 Page 17 of 183 PageID 4170
 6

different terms.

THE COURT: Today or later?

MS. CAHOON: Yes, right now, Your Honor.

MR. WELDON: Your Honor --

MS. CAHOON: That may help resolve any confusion.

THE COURT: Time out. One at a time. Go ahead,

Mr. Weldon. Everybody's going to get a chance to talk. As

Mr. Weldon and Ms. Johnson and Mr. Kurt all know, I do have

one rule about talking, and that is when my mouth is open,

everybody else's is shut. As I may have already indicated,

I may be off target, the metaphor fits, and if so, please

don't interrupt. I don't think any of you have witnessed,

I hope, what happens when somebody interrupts me and I get

annoyed. I think I'm a pretty even tempered guy on the

whole, some might dispute that, but the one thing that's

guaranteed, for whatever reason, truly light my wick and

send me off is getting interrupted. Don't ask me why. All

people, Judges have idiosyncrasies, and that's the one that

can get me very angry. So -- okay. So -- and the same

with each other, okay. Everyone's going to get a chance to

talk, I've got plenty of time this morning. Mr. Weldon, go

ahead.

MR. WELDON: I think it would be helpful to

mention to The Court that the government and the defense

have arranged for, today, for The Court to have, as an

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exhibit, a lower receiver, actually one of the lower

receivers that were -- was allegedly purchased in this

particular case. And at the request of defense, an actual

upper or complete AR-15 style weapon is here in the

courtroom today. Before this happened, Judge, I just want

you to know I cleared it all with Alex Rutter. He has a

deputy here with a key with a trigger lock on the

particular AR-15. It's unloaded, and of course would be

rendered safe immediately after testimony, but that was

done in agreement with defense. They had an opportunity

yesterday to come up to ATF to view these exhibits, and

they are marked for The Court's benefit.

THE COURT: All right. And as I was saying, the

last time I had a firearm in my hands was Boy Scout camp

70 -- not quite -- 65 or more years ago, so I know nothing

about firearms. That's good, I'm glad to hear that.

So anyway, just to sort of set what's before me

in terms of legal issues for you, ATF adopted a -- you

know, a regulation, as it's authorized to do, and the one

at issue here says where used in this part, and I've

already referred to that, that creates the problem, at

least in the defendants' eyes with the indictment and the

charge, and the problem they contend they have with notice.

I do want to note that -- let me complete the -- what I was

about to say. The regulation contains -- the following ATF

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regulation contains the following were used in this part,

and then forms prescribed under this part, comma, where not

otherwise distinctly expressed or manifestly inconsistent

with this part with -- excuse me, with the -- I'm sorry, I

have trouble reading, with the intent thereof, terms shall

have the meanings ascribed in this -- in this section,

okay. Sorry to be so clumsy, but -- so I think under the

regulation itself raises the question of whether or not the

statute itself simply expressly describes what a receiver

is, quite simply using the term receiver. In other words,

is the more elaborate definition or, quote, more precise

definition or clarification necessary in view of the

statutory term, and the, what I would suggest is the -- an

understanding of what a receiver is relative to a firearm

generally.

And secondly, I think another issue is whether or

not the duel definition or the -- excuse me, the unitary

definition as expressed here, whether or not is manifestly

inconsistent with the intent thereof. And so far as I can

tell, the term there of seems to refer to the phrase this

part, I'm not sure where else it would go, but if that

relates to something else, let me know.

So I guess a couple of issues here is whether,

without the definition, the term receiver, as used in the

statute itself, is sufficiently specific and clear to put

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the defendants on notice of the requirements of the law,

really regardless of whatever the statute says by way of

punitive or alleged clarification or elaboration.

Secondly, there's, of course, the Chevron case,

and I believe that the pertinent segment of that decision

reads as follows, (Reading:) When a Court reviews an

agency's instruction of the statute which ad -- administers

it, excuse me, it is -- it is confronted with a question

first always is the -- first always is a question whether

Congress has directly spoken to the precise question at

issue, and didn't Congress do so when it simply used the

term receiver in light of the legislative -- statutory

purpose, its manifest purpose in enacting the Gun Control

Act and also replacing the former National Firearms with

the current version, namely the Gun Control Act.

If the intent -- and second, if the intent of

Congress is clear, then it is the end of the -- of the

matter. Only question for defendants isn't the intent of

Congress clear in enacting the statute? It's not -- using

particular term, maybe it is, but certainly seems to me

indisputably the intent of the statute is to undertake to

control undesirable access to proliferation of and use of

firearms. I would think that's indisputable, but if it is

disputable let me know. And if so, to put the question

quite bluntly to the defendants, well, does this -- isn't

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this regulation interpreted in this case with regard to

this overall weapon contrary to Congressional intent? It

would undo, wouldn't it, congressional intent with a

weapon? I think it's fair to say, I suspect the record, in

due course, will show and be relatively easily altered by

somebody with a modest bit of knowledge and no longer serve

as a semi-automatic weapon but a, you know, automatic

firearm. And doesn't it cut the heart out of the

congressional purpose and ignore absolutely the intent of

Congress to say, well, we've got the definition here,

Judge, and, therefore, dismiss us and go home? I'm putting

the question to defense counsel quite clearly just so that

you know what's on my mind at this point, and I think -- I

hope all the lawyers in the room, except the guests, are

aware that I can change my mind and sometimes prone to do

so even after I've heard all argument or whatever. But

just -- I'm trying to put it directly to you that, first,

with regard to the regulation itself what's to clarify

about the term receiver? We're not talking about a

telephone, we're not talking about a, you know, radio.

We're not talking about somebody who gets e-mail. We're

not talking about somebody I appoint to marshal the assets

of a potentially bankrupt company, and we're certainly not

talking football. We're talking a gun, firearm. As I

understand it, and I only -- my understanding comes solely

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from the term firing mechanism, you take the firing

mechanism and the hammer out, and the AM-15, whether as a

semi-automatic or automatic firearm, is more -- is not even

as harmful as a Nerf gun or a water pistol. It's -- it's

the guts of what makes the gun shoot.

And another question that may bear some further

research is, well, who uses -- I know that the manufacturer

uses those terms, and others, military and so forth, but

isn't it simply, you know, the fact that we refer to a

certain portion, the bolt or whatever, as the upper

receiver and the rest is the lower receiver, the thing

that -- the mechanism that actually makes the thing shoot

whatever's been put in the chamber or the -- you know,

bolted in or however it works. I mean, from a -- from a --

any standpoint, does it make sense to let those terms

unique to this weapon for whatever purpose they may be so

used and the fact that only one part is serialized, maybe

that simply suggests that as the agency has interpreted and

applied the overall statute, it didn't have to serialize

the bolt because, after all, they are -- and I'll find out

soon, to the extent to which -- they're physically

connected I assume, that somehow there's -- to that extent

they're a single unit, you know, quote, the lower receiver

can't function without the upper. The upper receiver can't

function without the lower, and therefore, in light of the

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statute referring to the receiver, although that term --

those terms may be applied to this construct, this --

this -- how this particular part is fabricated, simple

truth is together jointly and joined together some way, I

assume, whether in the same housing or not, I'll find out,

I gather not, otherwise we probably wouldn't be here. So

what. And we're not talking, say, well football or

telephones, we're talking about firearms. And -- and

nobody could argue for a moment somebody reading the

statute would think they're talking about somebody that's

about to get a package or catch a football or receive a

telephone call. It's a firearm. So I put it quite

squarely and bluntly to you, and I thought we'd cut to the

chase. And if you want a few moments to talk amongst

yourself and prepare your thoughts -- so, one, just to try

to summarize, one is, isn't the statute enough, clear

enough, sure, we've got the regulation. It's my

understanding regulations are supposed to clarify, make

something to fill a legislative gap, to make something

that, read on its own, would really leave somebody baffled,

whether it's A or B or C or D. And then isn't it -- is the

term inconsistent with this part refers -- part refers, as

I assume it does, just to the regulations, nonetheless with

the intent thereof, nonetheless the regulations, the

purpose, the intent of ATF in adopting the regulations

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cannot be to weaken the force and effect of the statute,

and -- and nullify its enforcement, especially when you're

talking about a weapon of this sort and this kind.

Manufacturing or other convenience they call three parts

because somehow they're separated and not housed together,

or whatever it is, upper and lower receiver.

So secondly, with regard to the Chevron Doctrine,

and of course, as I understand it, at least Justice

Kavanaugh has taken the view, that Law Review Article that

I came across that says judges should interpret statutes,

not agencies. And I haven't delved into what's happened in

Chevron, I don't think I have to except apparently its --

its command, as I understand it dimly, that sort of a

heightened sense of deference to the agents -- agency,

they're the experts, they know what they're talking about,

leave it to them. It's my understanding that he's not

alone in saying, hey, among other things that raises

serious questions about the separation of powers and

exemplified in its line I just referenced from that

article.

So that being said, I say you're welcome to take

a few moments, or you're welcome to go. Do you want to

show me them first, or would you like to call a witness?

MS. CAHOON: I think, Your Honor, respectfully,

we would like to take a moment.

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THE COURT: I'm having trouble --

MS. CAHOON: If Your Honor's willing, we would

like to take a moment to just refer at counsel table.

THE COURT: If you want to go back there, that's

a more private --

MS. CAHOON: I think we probably only need a

moment at counsel table and then we'll be ready to call our

first witness.

THE COURT: Does somebody want to show this thing

to me?

MS. CAHOON: Yes, Your Honor, our witness will do

that. We'll be just a moment.

THE COURT: Take whatever time you want. The

proponent always has a rock to roll up a hill. I

understand I've made the rock a lot heavier and the hill a

lot steeper. I know Jackie and Mr. Weldon know it's just

my practice to say this is what I'm thinking rather than

put all this stuff in an opinion and then you say, well,

gee --

MS. JOHNSON: Thank you, Your Honor, we do

appreciate it.

THE COURT: And the real no no is come back with

a motion to reconsider.

Go ahead, take whatever time you need.

MS. JOHNSON: Thank you.

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THE COURT: Actually, sorry to interrupt, if I

am. It might be useful for all of us at least to find out

from the government if I have overstated or misstated those

views in terms of somewhat distorted either what its

argument is or what the issue is. If the government says,

Judge, actually you have it wrong in this respect, that

might make it easier for everybody, any problem -- I don't

want to -- I'm not trying to open the gate to the argument,

I just want to say, Judge, you said this, that or the other

thing, and we even disagree with that.

MS. CAHOON: Certainly. I appreciate the

courtesy in asking us. If The Court is willing, our

preference would be to present our witness and then for

both sides to have an opportunity to argue what they think

the relative issues are in light of those --

THE COURT: Of course. Absolutely.

MS. CAHOON: Thank you so much for giving us that

time, Your Honor, we appreciate that. We would ask -- or

we would call Daniel O'Kelly as the witness for the

defense.

MR. WELDON: The government has a witness present

here today as well, it's Mr. Dan Hoffman. He's seated in

the back of the courtroom today. I wasn't going to make a

motion for separation of witnesses unless the defense

thought that would be helpful. I just want to make The

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Court aware we do have a --

THE COURT: I think it's custom in civil cases

if -- correct me if I'm wrong, but it's my understanding

that when it comes to expert testimony, there's generally

no separation. I don't really care, okay.

MS. JOHNSON: Your Honor --

THE COURT: Doesn't matter to me.

MS. JOHNSON: We did not ask for a separation of

witnesses because we anticipate that we want our witness,

after he testifies to --

THE COURT: I'm sorry, I'm having a little

trouble hearing you.

MS. JOHNSON: We did not ask for a separation of

witnesses because we anticipate that after our witness

testifies we'd like him to remain in the courtroom.

THE COURT: Sure.

MS. JOHNSON: So thank you.

THE COURT: Rebuttal or whatever, sure that's

fine.

DANIEL O'KELLY, 

was herein, called as if upon examination, was first duly 

sworn, as hereinafter certified, and said as follows: 

THE COURT: Good morning.

A. Good morning, sir.

THE COURT: You've got to sit about this

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distance -- just about this distance of your four fingers.

A. Yes, sir.

THE COURT: So tell me your name, please.

A. Daniel O'Kelly.

THE COURT: What's your present community of

residence?

A. I live in Denton, Texas, sir.

THE COURT: Okay. Home of Texas Women's College.

A. Yes, it's very close to my home.

THE COURT: Our daughter received a Ph.D. there a

year ago December, very enjoyable visit. Very happy for us

and our entire family so we enjoyed it.

So do you have a present occupation or way to

earn a living right now?

A. Yes, sir.

THE COURT: And what is that?

A. I'm the Director of the International Firearms

Specialist Academy.

THE COURT: What is that?

A. Excuse me, it's a guild of firearm experts that

serve to assist and train law enforcement, the firearm

industry and the legal profession.

THE COURT: And assist in what way, and train in

what way?

A. We teach 14 separate topics in a course called

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Certified Firearms Specialist to raise the bar of firearm

training within those three industries to bring people up

to a fully competent level. And we assist, in addition to

training, by serving as expert witnesses in civil and

criminal trials.

THE COURT: You say you're a guild, it's

international, did you have a membership roster, or if so

how many members? It's not that relevant, I'm just

curious.

A. There are about a dozen consultants on staff,

including two doctors, two attorneys, the rest are retired

law enforcement people, including one who is the chief of

the firearms unit of the South African Police Service.

THE COURT: Okay. And what's your position with

that organization again?

A. I'm the director.

THE COURT: Okay. And how long have you been

with it?

A. Since 2011.

THE COURT: Okay. And before that what did you

do?

A. I was two years a corporate senior manager for

the Cabelas Corporation Outdoors companies. It was the

biggest firearm dealer in the world.

THE COURT: Okay. And before that what did you

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do?

A. I was with ATF for 23 years.

THE COURT: Okay. And what were your duties,

generally? What sort of areas did your -- into what sort

of areas did you -- what kinds of activities and so forth

did your duties take you, your assignments?

A. As an ATF I was a criminal investigator special

agent. I specialized in firearm knowledge, everything from

range training to interstate Nexus. I did a lot of

teaching in the U.S. and internationally in that capacity.

I've toured quite a number of firearm and ammunition

factories in the U.S. and abroad. I've been through a

number of armored schools, just any firearm training of any

kind that was available, applied myself to it having been a

life-long student of firearm history, design and anything

related to it.

THE COURT: And before becoming an ATF agent,

what did you do?

A. I was a police officer for 11 years in Northwest

Indiana.

THE COURT: Whereabouts? 

A. Portage, sir, near Gary, Indiana. It's Portage,

Indiana on Lake Michigan.

THE COURT: Okay. And then before that?

A. I was a general manager for a small oil company,

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which was basically just a series of gasoline stations, but

they called themselves Parker Oil Company. I was their

general manager and worked my way up to that position

having just been a gas station attendant prior to that as a

kid in high school.

THE COURT: Okay. And how long were you with

them?

A. I was with them for four years as I recall.

THE COURT: Okay. And you are a native of that

area, Indiana area, Northern Indiana?

A. Yes, sir.

THE COURT: Okay. Okay.

MS. CAHOON: Thank you so much, Your Honor.

THE COURT: I assume there's no objection to him

being permitted to testify and give his opinion on whatever

relevant matters he may be testifying to?

MR. VANN: No, Your Honor.

THE COURT: Okay.

DIRECT EXAMINATION 

BY MS. CAHOON: 

Q. Good morning, Mr. O'Kelly. 

THE COURT: I apologize, Ms. Keegan (sic), just

FYI, counsel, looking down the road in the event of a

trial, I would prefer that you avoid the use of the term

expert. It's a little phobia of mine. I think it tends to

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give a witness greater weight, perhaps, than other

witnesses in the case, and I think that's particularly

something to be avoided in a criminal case, because, as you

know, when we instruct -- the jury can take into account

his testimony and evaluate credibility and reliability,

same standards and so forth, so anyway just FYI, that's why

I refer to he's qualified to give his opinion on whatever

subject is relevant. So go ahead.

MS. CAHOON: Thank for your clarification, Your

Honor.

BY MS. CAHOON: 

Q. Mr. O'Kelly, good morning. 

A. Good morning.

Q. I just have a few additional questions about your

background to supplement what Judge Carr already asked you

about. Could you tell us a little more specifically what

your role as director, your current role involves?

A. I do most of the training; however we do have two

other active current instructors which teach our seminars,

so I coordinate their activities and direct them. I serve

as an expert witness -- or a witness, I'm sorry, I serve as

a witness in criminal and civil litigations, and I direct

the other consultants on our staff which do the same thing,

I develop the training.

Q. And does your company work in all parts of the

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country?

A. Yes, we do.

Q. Could you tell us a little bit about your

educational background, please?

A. I have a Bachelor's Degree from Indiana

University.

Q. And what sorts of firearm trainings have you

received?

A. I've successfully completed, in no particular

order, 13 armorer schools, interstate Nexus, basic and

advanced courses, all the ones that ATF offers. I was a

range instructor from 1980 as certified by the Indiana Law

Enforcement Academy, and then the Federal Law Enforcement

Training Center, and some smaller certifications like

firearm training simulator. I forget some of the other

ones, but there were more.

Q. Do you have any specific certifications?

A. I've been certified as an instructor for a lot of

police and firearm-related topics, yes.

Q. Thank you. Have you ever testified as a witness

regarding specialized knowledge in firearms before?

A. Many times.

Q. About how many times, just ballpark?

A. Ballpark probably 100.

Q. And have you testified in state or federal court?

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A. Both.

Q. Have you testified for the defense or for the

prosecution?

A. Both.

Q. And have you testified in civil or criminal

cases?

A. Both.

Q. Was some portion of that testimony during your

role as an ATF agent?

A. Yes, it was.

Q. And was there testimony you provided in your

current role?

A. Yes.

Q. Were you asked to review police reports and

receipts relating to this case for defendant Steven Robison

and his co-defendant?

A. Yes, I was.

Q. You'll see there's a black binder there in front

of you that has some of defense exhibits for your

reference.

Let's just start by talking a little bit about

sort of the basic terms we're going to be using. If you

take a look at Defense Exhibit A.

A. Yes.

Q. Mr. O'Kelly, could you please tell me, what is

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that a picture of?

A. That's the item which ATF refers to as an AR-15

type lower receiver.

Q. And if you take a look at Defense Exhibit D, E

and F --

THE COURT: Counsel, anybody mind if I look at

the various exhibits before they're proffered?

MR. VANN: No, Your Honor, no objection.

BY MS. CAHOON: 

Q. Are you familiar with these documents?

A. Yes.

Q. What sort of documents are they?

A. These are ATF Reports of Investigation.

Q. And do they describe a particular gun component?

A. Yes.

Q. What gun component do they describe?

A. Anderson -- Anderson manufactured receivers.

Q. Are these the same kind of lower receivers as the

one we're looking at in Defense Exhibit A?

A. Yes.

Q. In these documents they sometimes describe them

as stripped lower receivers, could you tell us what that

means?

A. That refers to a receiver, as they call it, the

lower in a lower AR-15 type, lower which has no parts

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attached to it, whether it ever did, or whether it's right

from the factory and has never had anything installed in

it. Some people say bare receiver versus stripped, whereas

stripped indicates that maybe it had parts in it prior and

they've been removed. Some people just refer to it as a

bare receiver.

THE COURT: In other words, is this what I call

the housing, in other words, parts go inside there

somewhere?

A. Yes, sir, some of the parts in the definition go

inside.

THE COURT: This is a container for the parts?

A. For some of them, yes, sir.

THE COURT: Whatever parts go in there they're

not in there right now?

A. Correct, yes, sir.

Q. And to clarify, Mr. O'Kelly, there are times when

they write AM-15 and times when they write AR-15, are those

terms different?

A. The original design of this firearm, the

blueprint that the AM-15 is made from, was named an AR-15

by the designer, and there are hundreds of companies which

manufacture and/or market copies of it, clones which are

made from the exact same blueprints. The parts

interchange, but since the patent ran out long ago some

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companies decide rather than calling it an AR-15 they call

theirs an AM-15 or a CR-15, or they sometimes use the

number 16 instead of a 15. They can call it anything they

want, just happens to be that Anderson refers to theirs as

an AM-15 I believe.

Q. Just so I understand, an AM-15 and AR-15 are

essentially the same thing, do I have that right?

A. Yes.

Q. I'm going to have you take a look at one of these

lower receivers.

THE COURT: If I can ask?

MS. CAHOON: Sure.

THE COURT: You say the unit -- the item, as

depicted here, is, quote, the lower receiver?

A. Yes, sir. Item A is what ATF refers to as the

lower receiver.

THE COURT: And when whatever parts are put into

it, what is it called then?

A. They still only refer to it as a lower receiver.

THE COURT: In other words, this shell or

whatever, whatever term to use, it's a stripped or bare

receiver or lower receiver, correct?

A. Yes, sir, with no parts they refer to it as a

stripped or bare receiver.

THE COURT: Okay. And that's how, generally or

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colloquially, it would be called; is that correct?

A. I'm sorry, sir?

THE COURT: That's how it generally or

colloquially would be called when somebody's referring to

what's depicted in Exhibit A with or without the parts?

A. Yes, sir, bare or stripped being synonomous, you

could use either term, and the fact that it's referred to

as a receiver is because ATF tells everybody that's

licensed that's a receiver. So the industry adheres to

that for fear of being prosecuted or sanctioned civilly.

Q. And I think, to that point, Mr. O'Kelly, if you

take a look at Defense Exhibit G, are you familiar with

that document?

A. Yes.

Q. What is that document?

THE COURT: Hold on one second, please.

MS. CAHOON: Sure.

THE COURT: Where's the sticker on that document?

MS. CAHOON: Upper right-hand corner, Your Honor,

right after F3, I believe it also has the Government's

Bates stamp number 93 if that's helpful.

THE COURT: One minute, please.

MS. CAHOON: Thank you, Your Honor. 

BY MS. CAHOON: 

Q. Mr. O'Kelly, I believe I was asking you to tell

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us what this document is.

A. This is a copy of an invoice from Jaqua,

J-A-Q-U-A, I don't know how you pronounce the name, a gun

company. It's an invoice for a number of Anderson stripped

lowers, stripped lower receivers which ironically they

refer to as AR-15s, even though that's not what the items

are marked on them.

Q. But this receipt does identify to them as

stripped lower receivers, right?

A. Yes.

MS. CAHOON: Your Honor, may I approach?

THE COURT: Of course. And, again, you have

standing permission, okay?

MS. CAHOON: Thank you, Your Honor, I appreciate

that.

THE COURT: I appreciate the courtesy but --

BY MS. CAHOON: 

Q. Mr. O'Kelly, I'm going to show you Government's

Exhibit 2.

THE COURT: Is that in the book?

MS. CAHOON: It's a physical exhibit from the

government, Your Honor. This is --

THE COURT: Of course it wouldn't be in the book.

BY MS. CAHOON: 

Q. Mr. O'Kelly, could you tell us what that item is

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I just handed to you, please?

A. Anderson Manufacturing AR-15 lower.

THE COURT: May I see it, please? This is --

this is what's in Exhibit A?

A. Yes, sir.

MR. VANN: Your Honor, for classification, the

government has no objection, and that's been marked as

Government's Exhibit 2.

THE COURT: Okay, that's fine. Here you go.

BY MS. CAHOON: 

Q. So Mr. O'Kelly, as Judge Carr just astutely

noted, is that item you're holding, Government's Exhibit 2,

is that the same lower receiver that we talked about in

Defense Exhibit A in that photographs?

A. Yes, it is.

THE COURT: Does that have a serial number on it? 

A. Yes, sir, it has an eight digit serial number

right here, it's stamped (indicating).

THE COURT: Couldn't actually see it for lack of

contrast, but I could feel the -- okay, and that's --

that -- that stamping to that particular item itself, and

only that item, is unique, right, there's no -- that serial

number is only on that item, or is it on other parts --

would there be other parts of the weapon into which that

item would be put? You see what I'm saying? I'm just

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curious as to how the serialization works.

A. Yes, sir. According to 18 U.S. Code 923(i), if a

licensed manufacturer manufactures a, quote, receiver, they

are compelled to put a serial number on it because ATF

regulates licensees. They tell licensees if you make one

of this item, we call it a receiver so you had better put a

serial number on it. So they do it to avoid criminal and

civil sanctions. So for that reason, this piece does have

a serial number, no other part of the firearm is required

to have a serial number.

And to your other question, yes, this is for the

purpose of containing some of the parts of the firearm.

THE COURT: Okay.

BY MS. CAHOON: 

Q. Now, you know I'm not a gun expert so this might

be a silly question, but if I just have a stripped lower

receiver, can I use that to fire a bullet at someone?

A. No.

Q. Can I injure someone with that lower receiver?

A. Only if you hit them with it over the head or

throw it at them.

Q. I'd like to have you hang on to Government's

Exhibit 2 for a minute, but I'd also like to have you look

at what's been marked as Government's Exhibits 3 and 4,

which are the completed AR-15.

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So, now, Mr. O'Kelly, the Marshal Service has put

a trigger lock on that firearm, so if you need it to be

removed, you'll simply let me know.

A. Okay.

Q. Can you describe the item I've just handed to

you, please?

A. Yes, it's an Anderson Manufacturing AM-15 rifle,

bearing serial number 14118616.

Q. Is that a completed version of an AR-15 firearm

of which a lower receiver would be a part?

A. Yes.

Q. Could you explain for all of us where the lower

receiver is in that completed firearm?

A. It's this part that my left hand is holding on

to, and you'll see that this part is there, it's

(indicating) --

THE COURT: First of all, if you can relate for

the transcript what he's showing and have him -- I just

asked Ms. Keegan (sic) if she can translate into words so

the record shows when he uses the word "there" and "this

part" and so forth -- why don't you do that because you're

the person who knows?

A. I apologize, Your Honor.

THE COURT: Let's start all over. Put it back

together and --

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A. The part of this rifle which ATF considers the

lower receiver is the part to which the pistol grip is

attached, and the part to which this selector switch, which

is visible on the left side, is installed. It's the part

which you see at the center and the lower-most portion of

the rifle. You can recognize this stripped receiver type

item as being where I just described it.

Q. And could you describe for us just for context

where the upper receiver on the AR-15 would be?

A. Yes. The AR-15 type firearm is one which has an

upper and lower type receiver, and they hinge open. So

having hinged this open by pulling out this captive pin,

the part just above the lower that I'm holding onto with my

right hand is the upper receiver to which the barrel is

installed (indicating).

THE COURT: And I can't see that, so can you

maybe even --

A. Yes, Your Honor. The firearm hinges open when

you pull this pin out, and this is what the government

calls an upper (indicating). It's not controlled by

federal law in any way. It's nothing, legally it's no more

controlled than a lamp shade, for example. Whereas this is

the part that we were looking at over here (indicating),

and into which the hammer and firing components are

installed, along with the shoulder stock, the pistol grip.

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However, the bolt is installed in the upper as is the

barrel.

THE COURT: And what does -- leave it like that

for a moment, please, open. What does the bolt do? What's

its function in a weapon?

A. Its function support the rear of a cartridge

during firing to contain the tens of thousands of pounds of

gas pressure which occur to protect the shooter and

bystanders from injury and force the gas to --

THE COURT: That's what actually propels it along

the barrel and out. And when closed, they're basically

proximate to each other, they fit into each other, the

upper and lower receiver?

A. No, sir. There's no -- there's no insertion

between the two. They just merely mate, connect to each

other.

THE COURT: That's what I meant, they mate, they

join.

A. They join to each other, but one is not housed

within the other.

THE COURT: I understand. But if you take one

away from the other --

A. Then you have no -- no ability to fire a

cartridge.

THE COURT: Both parts are as harmless as a lamp

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shade?

A. Yes, sir, you can see how quickly (indicating) --

THE COURT: Even detach.

A. -- push out pin and the upper removes.

THE COURT: Okay. And then you refer to the

selector switch, what does it do?

A. The selector switch has three positions, it's on,

safe, semi auto. And on a machine gun it has a third, full

auto, but of course this version only has safe and semi

automatic.

THE COURT: I see.

A. It's the safety switch in other words.

THE COURT: I see, okay, sure, all right. Thank

you.

BY MS. CAHOON: 

Q. Mr. O'Kelly, I'd like to walk back just a minute,

just for clarity sake. Let's just take a look at that

lower receiver that I've given you, Government's Exhibit 2.

Just looking at that stripped receiver, can you tell us

what component pieces, if any, does that lower receiver

house?

A. It houses the magazine release, it houses the

selector switch, the safe -- semi automatic safety switch,

it houses the trigger, the disconnector, the hammer, the

shoulder stock, the pistol grip, the magazine.

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THE COURT: What -- what is the, quote, firing

mechanism?

A. The firing mechanism is composed of the trigger,

the sear, which connects the trigger to the hammer, and

then the disconnecter which prevents full auto fire, and

the selector, the safety fire selector switch.

THE COURT: Okay. And said trigger hammer and

then?

A. And sear and disconnecter.

THE COURT: And I've heard the term sear before.

A. Yes, sir.

THE COURT: And it's my understanding that it is

relatively easy to remove the sear; is that correct?

A. It depends on the model of the firearm.

THE COURT: Okay.

A. In this case you would have to use a punch and

push out certain pins, but once you remove that, the

firearm doesn't work anymore.

THE COURT: Okay. But I realize this has nothing

to do with this case, I'm just curious for general

understanding. Again, I've had other cases where weapons

have been converted, or people have made, taken AR-15 parts

and created an automatic mode capability.

A. Yes.

THE COURT: I've had testimony that was something

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about removing or altering the sear or something, at least

my impression, again, it was in relative terms. Somebody

who's familiar with how to do it and has whatever equipment

is needed can do that, and therefore, take a weapon like

that constructed to be semi automatic, and that means you

have to pull the trigger each time to fire a bullet, or no?

What does -- what's the difference between semi automatic

and automatic? And then tell me about the sear, and the

extent to which the conversion process may or may not be

something that's readily accomplished, and if so how is it

done?

A. Okay. I have to somewhat back pedal and clarify.

This gun does not actually have a piece called a sear.

THE COURT: Okay.

A. A sear is the part in the average firearm that

connects between the trigger and the hammer. When you pull

the trigger that pivots the sear, which then disengages

from the hammer. The hammer is normally under spring

pressure, and therefore, it moves forward and strikes the

firing pin, initiates firing. This gun rather than having

a part called a sear has the disconnecter. At any rate --

THE COURT: Let's forget about that, okay. Let's

move on down the road.

A. Semi automatic, sir, means one shot per trigger

pull or trigger function.

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THE COURT: I understand.

A. Full automatic means more than one shot per

trigger function, so if you pull the trigger, just per pull

or per release you get more than one shot, that's

considered a machine gun under federal law. And then as

far as converting this to full auto, there are probably

four or five different ways. The factory way would require

drilling a hole, an extra hole through the receiver, and

then installing a military part which this gun doesn't

have. There are some clandestine ways to do it, one would

be to possess a clandestinely-made gadget, some of which

are legally registered, called a drop-in auto sear that

replaces the part I just mentioned. And those are

regulated as a machine gun by themselves under federal law.

There are a couple of other items, like, called a

lightening link or a swift link, those are also regulated

as machine guns by themselves, even though all they are is

a little piece of metal. You would have to install one of

those, then you would get full automatic fire. But to

possess one without having it registered through ATF is a

federal felony. And then there's always somebody coming up

with some new gadget. There are others that I won't bore

you with, but any of those gadgets solely intended to

convert this to fire full automatic are deemed to be

machine guns by themselves and are felonies to make or

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possess without prior ATF approval.

THE COURT: Unless you're in uniform?

A. Yes, sir.

THE COURT: Okay. Counsel, I'm going to admit

that under Rule 404(b) just for contextual background --

just so I understand --

MS. CAHOON: Certainly, Your Honor.

THE COURT: -- more about all of this, but

that's -- that obviously has nothing to do with this case.

MS. CAHOON: Thank you, Your Honor.

THE COURT: In terms of what's at issue or that

with which the defendants stand charged, it's simply

contextual so I can get some understanding of, you know,

what a receiver and upper and lower receivers are.

MS. CAHOON: Thank you for that clarification,

your Honor.

THE COURT: No problem. I just wanted to let you

know.

BY MS. CAHOON: 

Q. Mr. O'Kelly, if we could take another look at the

lower receiver we've been chatting about, again, just to

clarify. So it was your testimony that it's just the

hammer and the firing mechanism that are a part of the

lower receiver, am I understanding that correctly?

A. Among the elements in the definition in the CFR,

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yes.

Q. And you're familiar with the CFR?

A. Yes.

Q. Why are you familiar with the C --

A. I teach it.

Q. And I assume -- well, I'll just ask you, is the

part of the CFR, the part that you teach, the part that

regulates firearms?

A. Yes.

Q. And so since you mentioned that definition, if we

look at 478.11, what relevance does that definition have to

your teaching about firearms?

A. Well, under the Gun Control Act there are four

definitions of a firearm. When you look it up, it looks

like one definition, it's one paragraph, but in that

paragraph there are four clauses. Each one describes a

different category of firearms. The first of which is any

weapon which excels a projectile by the action of an

explosive such as this rifle; the second of which is the

frame or receiver of any of the above firearms; the third

being any silencer; the fourth being any destructive

device.

So then that begs the question, okay, any frame

or receiver of a firearm is a firearm. What's the

definition of a frame or receiver, how do I know if this

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item counts or that item counts? So to find that

definition you go to Chapter 27 of the CFR 478.11, and it

says that part, singular, which houses the hammer, comma,

bolt or breechblock, comma -- and if I can pause right

there -- it says bolt or breechblock because every firearm,

depending on how it was designed, has either a bolt or a

breechblock, they both perform the same function. Some

guns have a bolt, some have a breechblock. After that

comma, firing mechanism, comma, I'm sorry, and firing

mechanism. It says the word and, and then it says and

which is usually threaded at its forward portion to receive

the barrel period.

THE COURT: Counsel, I'm willing to accept the

proposition, subject to hearing from the government, that

if that definition is, in fact, what is controlling, then

obviously all three of those components, at least viewed as

he's viewing them, are not present.

MS. CAHOON: Thank you, Your Honor. And to

clarify -- I'm sorry.

THE COURT: Okay. Go ahead.

MS. CAHOON: I was just going to clarify that

there are actually four component pieces, which I'm just

going to walk through for clarify.

THE COURT: I understand this weapon has a bolt,

above -- firing mechanism and hammer.

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BY MS. CAHOON: 

Q. And Mr. O'Kelly, perhaps you can tell us what

that fourth component of the definition is from your

teaching experience?

A. That fourth component is the phrase which says,

and which is usually threaded at its forward portion to

receive the barrel. And when I teach it, I criticize it to

some degree by saying that, in my opinion, it's poorly

worded. It's clear that what they're referring to is that

which is a receiver is also the part which receives a

barrel, comma, usually it's threaded in order to do that

because the part of a firearm which receives the barrel,

sometimes a barrel is threaded in, depending on the model,

it screws in, in other words. Some of them are press fit

in using a machine that just forces the two together using

friction. And some use a pin, insert one in the other,

drive a cross pin in to hold it in place. They're not

always threaded. That's why this definition, in my

opinion, says usually threaded, but rather than saying

first that it receives the barrel and then the fact that

it's usually threaded, why that matters, is ironic, but the

fourth element, in short, is that it's the part which

receives the barrel.

Q. And which of those four components are present in

an Anderson lower receiver?

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A. Only two.

Q. Which two again, for clarity?

A. It houses the hammer, and it houses the firing

mechanism.

Q. And is the firing mechanism the part of a gun

that actually makes a bullet be projected out?

A. That, along with the hammer. It requires the

hammer, and the hammer requires the firing mechanism. They

have to work in unison, so yes.

Q. What part of an AR-15 would house the bolt and

breechblock and would include the area where the barrel is

threaded or inserted?

A. That's the part that is called the upper by ATF

and the gun industry which is unregulated.

Q. If I could have you take what's been marked as

Government's Exhibit 4, which is the completed AR-15 I've

given you previously, it's just the upper portion of that.

Could you show all of us where the bolts or breechblock

would be housed in this firearm?

A. Once you hinge the firearm open, pull out the

other pin, lay the lower unit aside, what I'm holding is

the barrel, and the rear portion of this barrel upper is --

this rear 6 or 7 inches of this (indicating) is what's

called the upper. And pulling slightly rear on the

charging handle I'm removing what's called the bolt carrier

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group. The forward two-and-a-half inches or so of this

which moves in and out of the bolt carrier, is the bolt

itself, the part that my left hand is grasping. The

biggest rear part, this is the bolt carrier, but this is

the bolt (indicating).

THE COURT: I can't see it. I'm sorry, I can't

see it.

A. This is the bolt, this short piece which moves

back and forth, this is the bolt (indicating), and this

part called the bolt carrier, which carries it back and

forth inside this upper -- inside here, it moves back and

forth.

Q. And Mr. O'Kelly, so that we understand, what is

the job of a breechblock inside of an AR-15, what does it

do?

A. The bolt's job is to feed and chamber a

cartridge. Every time you pull the trigger, of course, the

explosion causes the bolt carrier to go to the rear,

extract and eject the empty case or shell, whatever you

want to call it. And then a spring drives this bolt

carrier back forward, which feeds another cartridge from

the magazine, pushes it into the chamber of the rifle, and

then these little pins on the front of the bolt enter

matching grooves, turn to some radius and lock it in place,

so that when you fire the next shot, that roughly

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50,000 pounds of pressure per square inch, is safely

contained and force all the pressure down the barrel and

away from the shooter.

Q. I believe you said the barrel is also threaded

through the upper receiver; is that correct?

A. On an AR-15 the barrel is threaded in, yes.

Q. Can you please show us where that barrel is

threaded?

A. You would need a wrench to take it apart, but

it's where they meet right here at the front end of the

upper, at the rear end of the barrel. It's the --

depending on the design, it's threaded in or using various

methods of connection. They're not always threaded.

Q. If I have just a lower receiver that you've been

describing here and then I'm able to acquire the other

component pieces, could I put together a firearm in a

minute or two?

A. No, not in a minute or two, but probably in 30

minutes, 15 minutes, depending on your skill level.

Q. Would I need tools, or could I simply do it with

my hands snapping it together?

A. You would need at least the tool required to

attach the barrel to the upper. You would need, depending

on which tool you have, you may be able to use that same

tool to attach the stock to the lower, and you would need

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some sort of a wrench or screwdriver to attach the pistol

grip to the lower, but they make a combination tool which

does all of those things. So with that one tool, you could

assemble the rifle in a few minutes.

Q. So it sounds like we would need some specialized

training and some sort of a special tool, do I have that

correct, or at least a tool --

A. Yes.

Q. -- beyond my own hand?

A. Yes.

THE COURT: If I may, again, it's just sort of

general understanding, I'm just curious, it's my

understanding, at least in military use, in order for a

weapon to be -- maintain sufficiency, the M-16, it has to

be disassembled and cleaned from time to time; is that

right?

A. Yes, Your Honor.

THE COURT: Otherwise you can have problems with

jamming or malfunctioning?

A. Yes, sir, as dirt accumulates in the rifle, and

as the lubricant dissipates, you get a lot more friction, a

lot less clearance, and you're going to have stoppage

unless you clean it and lubricate it.

THE COURT: And I realize once -- again, it's not

at issue in this case at all, but if someone just walked

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into a gun store and bought one of those things without

military or other sort of training, might or might not be

able to do all of that, who would know, right?

A. Right. If you -- if you have no prior training

or knowledge of these, it doesn't have any instructions

printed on, it you're going to need some sort of guidance.

THE COURT: It's not a moment or two to take it

apart, but someone who's had the training and experience

can do so, and has to basically to maintain the thing --

A. Yes, sir.

THE COURT: -- okay, if he wants to use it, or

she wants to use it. Go ahead, Ms. Keegan (sic).

MS. CAHOON: Ms. Cahoon. Thank you, Your Honor.

BY MS. CAHOON: 

Q. Mr. O'Kelly, you were explaining a little bit

about the lower receiver for the Anderson. If you know,

are there any guns that have receivers that would satisfy

this four-part definition, or do they all suffer from the

same problem that this lower receiver suffers from?

A. There are an unbelievable number of guns on the

market --

THE COURT: I couldn't hear your answer.

A. There are an unbelievable number of guns on the

market which have this same situation.

Q. But are there any receivers that satisfy this

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definition?

A. There are some.

Q. Mr. O'Kelly, you -- you already identified that

you had looked through the materials, the receipts?

THE COURT: Ms. Keegan (sic), if I may,

because -- if -- if any of you do want to object, please

object to my questions in this regard. If I heard you

correctly, and tell me if I didn't, because her question to

you was is there any component of a firearm -- I'm

rephrasing, why don't you read her question back?

Q. I think my --

THE COURT: I want Angela to read the question

back, please.

(Whereupon the court reporter read back the

previous question.)

THE COURT: And your answer was?

A. Yes, there are some firearms on the market which

have a part which does satisfy all four elements of the

CFR's definition of a receiver. Those would be most

pump-action firearms, most lever-action firearms, most

revolvers, balling (phonetic) block type firearms, rolling

block type firearms, some bolt action firearms.

THE COURT: But pistols that aren't revolvers,

many, if not most, models of a rifle or whatever would have

a duel assembly of this sort in them rather than a -- a

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single and/or singly housed component that contains all

four parts, is that -- is my paraphrase correct?

A. There are several firearms in the market which

have an upper, what's called an upper and a lower, such as

the H&K series, the Tommy gun type firearms, Oozies, and of

those, just those examples, the upper performs one or two

of these four functions; the lower performs the other two

or three; and, therefore, they don't have a part which

satisfies the definition of a receiver within the CFR. For

instance, semi-automatic pistols, the kind the police

officers carry, Glocks, Berettas, Colts, Smith & Wessons,

you name it, 90 some percent of those do not have a part

which has more than one of these four elements in it and,

therefore, don't qualify, according to the definition in

the CFR, yet for decades ATF has insisted, well, yes, they

do. All you have to do is look at the definition and look

at the part and you see, well, I'm not sure what you're

looking at, but, no, they don't.

THE COURT: Okay. Thank you.

BY MS. CAHOON: 

Q. Mr. O'Kelly, since you bring it up, are there

other inconsistencies you've noticed in your professional

experience the way ATF has internally thought about

firearms and their component pieces based on how the Code

of Federal Regulations defines those items?

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A. They don't all fall within the Code of Federal

Regulations issues. Sometimes they contradict themselves

as to how they rule concerning the installation of certain

features on firearms. Sometimes they are in contradiction

of U.S. Code.

Q. So as an example, could you describe for us how

the ATF internally conceives the receivers in an AR-15

versus an AFL (sic) type rifle?

THE COURT: What's an AFL?

MS. CAHOON: Or excuse me, FAL.

THE COURT: What's an FAL?

A. The FAL is a classical design rifle, it was the

military rifle for dozens of countries in the '50s, '60s

and '70s around the world. And it's somewhat similar to an

AR-15. It has a pistol grip, you know, there are

semi-automatic versions of it, full-automatic versions of

it, and it has an upper and a lower, just like the AR-15

does, Your Honor. And the lower of an FAL, just like an

AR-15, houses the hammer and the firing mechanism, whereas

the upper houses the bolt and receives the barrel.

The irony is, though, that ATF considers the

upper of that firearm to be the receiver and the lower to

be nothing, in direct opposite of what they consider with

an AR-15, the lower is the firearm and the upper's nothing.

THE COURT: In other words, what -- in terms of

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functionality, in terms of how it helps the firearm

function as such, the gun fire as such, the weapon function

as such, to get that bullet out there, with regard to which

the FAL, if I understood correctly, rifle, what ATF

designates the receiver is the upper portion, which is not

designated as such in the AM-15?

A. Correct.

THE COURT: Okay, and vice versa?

A. Yes, sir.

MS. CAHOON: Your Honor, if I could just a

moment, I'd like to confer with my colleagues before I

conclude?

THE COURT: Sure.

MS. CAHOON: Thank you. Mr. Weldon, will you

want that weapon up there? If so, fine.

MR. WELDON: We may as well leave it up there,

it's still locked.

THE COURT: Even if it weren't, I wouldn't know

how to use it.

MR. WELDON: Fair enough.

THE COURT: And I couldn't see where I was

pointing it either, as you know.

BY MS. CAHOON: 

Q. Mr. O'Kelly, before I conclude, do you think

there would be any value in having the Marshal Service come

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and take that lock off so you could show The Judge in

detail how those pieces work together?

THE COURT: I assume what happens is you -- if

the lock were off, you pull the trigger, and if there were

a projectile in there it would head on out, right?

A. I can probably quickly do it without the lock

being removed. This -- this being the hammer (indicating),

Your Honor, you can see it's in the under tension, it's

cocked to the rear. If you were to pull the trigger, it

would move forward about -- and be pointing vertically.

And when it was in that vertical position, it would strike

right here, which is the rear of the firing pin

(indicating).

THE COURT: The rear of the cartridge -- 

A. The rear of the firing pin right here, and then

the tip of the firing pin would hit the cartridge

(indicating).

THE COURT: The cartridge?

A. Yes, sir.

THE COURT: And cause explosion and whatever you

call it and cause the bullet to go out -- head on out.

Okay.

A. Yes, sir.

THE COURT: I don't think it's necessary to do

that, Ms. Keegan (sic), that's fine.

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MS. CAHOON: Thank you, Your Honor.

BY MS. CAHOON: 

Q. Just to close here, Mr. O'Kelly, the stripped

lower receiver, which was Government's Exhibit 2, we can

agree that that includes only two of the four component

pieces from the CFR definition, correct?

A. That's correct.

THE COURT: And I would agree with that. 

BY MS. CAHOON: 

Q. It's also my understanding, just so it's clear,

the lower receiver, in and of itself, isn't capable of

firing a bullet or hurting anyone unless it's a --

A. That's correct.

Q. And I'm sorry, just for the sake of the record,

if you'll look at Defense Exhibit B, which is in that

exhibit book there in front of you --

THE COURT: What --

 BY MS. CAHOON: 

Q. I'm sorry, Defense Exhibit B, as in boy.

A. Yes.

Q. Are you familiar with that image?

A. Yes.

Q. And could you please tell us what it is?

A. It's an AR-15 type rifle which is hinged open, I

can't see from the photograph any markings to determine who

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made it.

Q. Is this AR-15 substantially similar to the AR-15

you've been holding as Government's Exhibits 3 and 4?

A. The only obvious difference is the one in the

photograph has an optical sight and an iron front sight on

it, whereas this one has no sights, otherwise they're

essentially the same.

Q. Same essential component pieces?

A. Yes.

Q. Thank you so much.

THE COURT: I do have one question. Again, it

is, I think, pertinent, and, therefore, if you object say

so.

With regard to the units which bring the

defendants here, and the government, the 50 units which the

government claims are receivers and, therefore, firearms

and so forth, if I understand correctly, are those units,

those precise units, are they the same as -- in other

words, if I bought -- if I had an M-16 or if I had an

AR-15, okay, another manufacturer --

A. Yes, sir.

THE COURT: -- can I -- could I take what is at

issue here and put it into one of those weapons, some, all,

a few or none?

A. All. They're all clones, whether -- whether the

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parts you have are made by Colt, Bushmaster, Anderson or

300 others I could that name, they all fit because they're

made from the same blueprints, they're clones from each

other, other than minor cosmetic differences and/or the

type of shoulder stock or sites.

THE COURT: So I wouldn't need all the other

components of the Anderson that go into the Anderson

firearm from Anderson, wouldn't have to go to Anderson and

say give me everything else so I can make one of your

weapons or whatever use --

A. No, sir, you could build it from Colt parts or

Bushmaster parts.

Q. I think you were explaining to even if you did

have all those component parts, you would need some skill

and tools to put them into one operable firearm; is that

correct?

A. That's correct.

Q. Thank you so much.

THE COURT: Okay. Is it Mr. Vann, did I get that

correctly?

MR. VANN: Yes, Your Honor, it's Mr. Vann.

THE COURT: You're welcome to sit, stand,

whatever's comfortable. It's your stage, go ahead and use

it, counsel.

MR. VANN: I'll stand here, a couple of times I

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will have to approach.

THE COURT: Of course. It's not necessary to

ask. Has any judge told you no, you may not?

MR. VANN: I used to have to request to wander

the courtroom because I tended to pace a lot.

THE COURT: Have you ever asked a judge to

approach and he say no, stay where you are? That's why I

dispense with that nice little courtesy, and it's

traditional I know, but go ahead.

MR. VANN: Thank you, Your Honor.

CROSS-EXAMINATION 

BY MR. VANN: 

Q. Good morning, Mr. O'Kelly. I want to talk about

your experience and some of your background first.

THE COURT: I have a question.

MR. VANN: Yes, Your Honor. 

THE COURT: Tell me a little more about the guild

and when was it -- and once again, I'm not sure this is

relevant, but if you have any objection to it, say so. I'm

just curious, when was it created?

A. 2011, sir.

THE COURT: And you have 12 staff members, but do

you have members? In other words, if I were to call up and

say I'd like to become a member of the guild, or is it sort

of a closed -- is it like the old medieval guild where you

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have to show a certain degree of -- you have to be

qualified?

A. Yes, sir. You have to be highly qualified in

some firearm-related area in order for us to consider

putting you as one of our consultants. We have two medical

doctors who are forensic pathologists, we have two firearm

related attorneys. And as I said, former law enforcement

people, all of whom have some facet of firearm expertise.

THE COURT: So it's not like an association or

whatever I can just get a member slip and contribute my

money --

A. No, sir.

THE COURT: -- help support it?

A. No, sir.

THE COURT: I gather that basically you keep the

doors open, people employed, ultimately, but by doing what

you're doing here today in a variety of other capacities

and other venues and circumstances, is that right?

A. Yes, sir. We saw a need in law enforcement, the

gun industry and the legal profession for years during my

career. There just isn't a well-rounded knowledge of

firearms out there. Law enforcement academies, they only

teach their people how to shoot when they can shoot, but

they don't teach them anything about firearms.

THE COURT: Where to put, how to pull?

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A. Yes, sir, so we wanted to raise that bar.

THE COURT: And also obviously legal profession,

here I am being called upon to make a pretty important

decision, and obviously I didn't have a clue and you've

given me plenty, so I'm just saying that's your job in that

regard, and medical profession same sort of thing about

what injuries that weapons can cause and so forth --

A. Yes, sir.

THE COURT: -- how to treat them?

A. If we get brought into a shooting or a homicide,

sometimes the defense attorneys or prosecutors want an

independent medical opinion on the --

THE COURT: Sort of the forensics of it, terminal

ballistics? 

A. Yes, sir.

THE COURT: I interrupted, the forensics of it,

how the -- how the bullet may have traveled or entered the

body or perhaps even the velocity of which -- all of that

sort of stuff?

A. Yes, sir.

THE COURT: Okay. Now I understand. Not so much

treating but examining --

A. Yes.

THE COURT: -- and working backwards from what

you see to other data that is pertinent, whatever the

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situation is you've been called to testify about?

A. Yes, sir.

THE COURT: Okay. How did it come to be formed?

I'm just curious. How did --

A. During 34 years in law enforcement I constantly

was approached by other law enforcement people and lawyers

and firearm industry people asking questions that you would

think they would have already been taught or would have

learned on their own. And I just saw there was an extreme

need for the bar to be raised concerning firearm knowledge

in those three industries.

THE COURT: You're the founder?

A. Yes, sir.

THE COURT: Good enough. Go ahead, Mr. Vann.

Thank you.

BY MR. VANN: 

Q. Let's talk about some of the teaching you do or

have done in the past. You were an instructor at FLETC; is

that correct?

A. Yes, sir.

THE COURT: An instructor where?

MR. VANN: At FLETC. I'm going to have him

describe that.

BY MR. VANN: 

Q. I'm referring to it as FLETC, what is that, can

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you say what the acronym stands for?

A. Stands for Federal Law Enforcement Training

Center, which is where ATF National Academy is housed,

along with many other federal law enforcement academies.

Q. Department of Homeland Security's down there; is

that correct.

A. I can't swear to that, but I think they are. I

think pretty much everybody except FBI and DEA are there.

THE COURT: Is that Glynco? I've heard marshals

talk rather disparaging about some aspects of that, but go

ahead.

BY MR. VANN: 

Q. Where is that located?

A. It's in Brunswick, Georgia, which is referred to

as Glynco because it's in Glynn County, Georgia.

Q. And what kind of things did you teach while at

FLETC?

A. I'm sorry?

Q. What kind of things did you teach, what subjects?

A. I, at various times, was a range instructor, and

many of these duties overlapped. I was a range instructor,

I was physical control techniques instructor, an

interviewing instructor, I ran the ATF's undercover school

for two years. And during nearly the entire

five-and-a-half years I was the chief firearm tech

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instructor.

Q. What would that involve?

A. Teaching the basic and advanced classes on

firearm classification, ID, technology.

Q. Did you teach the AR-15?

A. I don't recall whether ATF had adopted using the

AR-15 as a tactical weapon yet when I was there.

Q. But if you're teaching -- I'm sorry?

A. But I taught various issues concerning the AR-15,

yes.

Q. So you taught the agents that the AR-15 had no

receiver?

A. No, I did not. That would have been seriously

frowned upon by the agency.

Q. But you're stating that it's clear the AR-15 has

no receiver, correct?

A. That's correct. There are a number of firearms

on the market that have no receiver according to the CFR.

Q. Was it clear to you then when you were teaching

at Glynco?

A. Yes.

Q. And yet you didn't do it, again, if it's clear

under the statute and under the regulations, why wouldn't

you have stated this firearm has no receiver?

A. It wasn't allowed.

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THE COURT: Had you raised the issue within --

A. No.

THE COURT: -- in the institute or elsewhere in

the ATF? Did you say, hey, time out guys, you're out there

charging people, potentially charging people, at least have

charged -- some day you may charge someone with the lower

receiver as possessing a receiver, and then because the

information that you are causing me to give the agents and

other law enforcement officers is a misdefinition of that

term?

A. No, sir, I wasn't allowed to. I co-wrote the

lesson plans that are still taught there today, myself and

about five other people co-wrote those in 1998, and at that

time I voiced my concerns to headquarters to a man named

Richard Turner who is still in charge of the interstate

Nexus program. And his response to me was, Dan, there are

things that are need to know and there are things that are

nice to know. That's all nice to know, and we're not going

to teach that, and it wasn't taught. I could only teach

what was approved by headquarters.

Q. When did that conversation occur?

A. 1998.

Q. You recall a conversation with Richard Turner in

1998 were he talked about need to know versus nice to know?

A. I recall conversations way prior to that, yes,

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sir.

Q. And have you brought this up at any time in the

past? You've testified on this issue before, correct?

A. Yes.

Q. Have you brought this up at any time in the past?

A. Yes, if you'll Google a declaration I wrote for a

federal civil suit in San Diego in about 2015, you'll see

where I quoted it then.

Q. Okay. And you wrote a manual then --

THE COURT: If I may interrupt, I'm sorry. And

to your knowledge -- the reason I ask, counsel, I don't

think any of you cited a case directly on point, and

Melissa and I have not, primarily she, has not yet to

undertake the research, which I suspect may also turn the

fact that there's no case directly on point. You say civil

suit, was it federal civil suit?

A. Yes, sir.

THE COURT: And do you know -- do you -- do you

recall the name of it?

A. Yes, sir. It was Lycurgan, L-Y-C-U-R-G-A-N. It

was against the then acting or director of ATF B. Todd

Jones, and --

THE COURT: How do you spell the first name?

A. Well, his name was B, the initial B, period, Todd

Jones is the name he went by. He was either acting or

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full-fledged director at the time, I don't recall. But a

company in San Diego had been served a search warrant --

THE COURT: I'm not -- I was more interested so

it might be possible to look up to see if that Court

reached any conclusion or decision on that issue. Probably

not, but you've given us enough information that somebody

who knows the mechanics, as I and other people do, of how

to get that information out of these machines as well as

you know, or maybe not as well, but certainly as you know

the mechanics and how those things function, we'll find

out.

A. Yes, sir. If you just Google O'Kelly declaration

armorer you'll see it come right up.

THE COURT: I'm interested in whether or not

anything another Court anywhere any time had to pronounce

the issue that is directly in front of me.

A. Yes, sir.

THE COURT: Go ahead, Mr. Vann. Thank you.

MR. VANN: Thank you, Your Honor.

BY MR. VANN: 

Q. We're going to come back to that in a second.

Talk about your nexus training. Explain to me what you

mean by nexus. First of all, can you spell it for the

court reporter, and tell me what it is?

A. Nexus, N-E-X-U-S. The word nexus just means a

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connection. There is an element which must be proven in

many federal gun prosecutions and ammunition prosecutions.

And that element is that the gun or ammunition affected

interstate or foreign commerce. In order for the

government to prove that element, you have to establish who

made the firearm or ammunition, and, therefore, where they

made it. And if it was made outside the state or country,

where it's being prosecuted, then there's been judicial

notice given that that item has affected interstate or

foreign commerce, and you have established an interstate

nexus because, of course I don't have to tell this Court,

but a Court has -- apparently these gun prosecutions have

to affect two or more states, otherwise it's a state

jurisdictional issue.

Q. Actually that's under the portion of traveled in.

Isn't it not necessarily in or affecting, it's the traveled

in portion, you show that it actually crossed state lines?

A. The nexus is the fact that it traveled in, and

having done so it has affected --

Q. But those are two separate things in the statute,

you're aware of that, correct?

THE COURT: Counsel, it would be my understanding

that a firearm manufactured in Ohio will be used in the way

things are going these days, in a convenience store robbery

here which everything -- the firearm was fabricated in

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Ohio, nonetheless I would have jurisdiction over that

robbery, I've been learning that lately. I get your point.

MR. VANN: Thank you, Your Honor.

BY MR. VANN: 

Q. And how do you go about doing that, proving the

traveling of the firearm?

A. You look at the markings on the firearm and

determine who is credited with having made it. You then

either refer to a vetted -- at the time when I was an agent

I would refer to a database which ATF maintains which has

vetted records since they issue the licensure to all

manufacturers, importers, and dealers as to where that

company actually made that item, did they actually make it

in-house, or did they outsource it to a vendor. Having

established where it was actually made, then you can

testify to whether or not it affected interstate commerce.

Q. Okay. And are you looking at the general

firearm, or the specific firearm that you've been given?

A. You would look at the specific firearm being

prosecuted in that case.

Q. And how do you know -- what marking is on that

firearm that identifies it different than one that looks

like it?

A. The company -- well, under the Gun Control Act,

under 921 Title 18, any firearm manufactured by a licensed

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manufacturer, has to bear five markings, that being the

manufacturer's company name, the city and state where they

maintain their business records, the make, the model, and

the serial -- oh, I'm sorry, the caliber, model and serial

number.

Q. And where is the serial number placed on the

firearm?

A. It's required to be on the part that ATF

considers to be a receiver.

Q. Okay. Let me ask you specifically what the

statute says. Does the statute say that it's on the part

that ATF considers to be the receiver, or does it say the

manufacturer must put the serial number on the receiver?

MS. CAHOON: Your Honor, objection. He's asking

for a legal conclusion.

THE COURT: Well, the statute is the statute. If

you want to recite and quote it -- I think you're actually

asking for him to testify under a matter of law, and the

law is what it is. I get your point, counsel, and I'm sure

I'll hear from you further on it.

MR. VANN: Thank you, Your Honor.

BY MR. VANN: 

Q. So you take the serial number that's on the

receiver, correct?

A. You take the serial number off the firearm that

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was placed there by the manufacturer, where ATF told them

they had to put it.

Q. Okay. Does -- are you familiar with the Gun

Control Act?

A. Quite a bit.

Q. You've taught it, correct?

A. I don't teach the entire Gun Control Act, no.

Q. You've taught portions of it?

A. Portions.

Q. Have you taught nexus training?

A. I have.

Q. On the nexus training do you teach agents to look

on the receiver for the serial number?

A. I teach agents that you can find the serial

number on the part which ATF calls a receiver. This gun

doesn't have a receiver, but ATF insists that one part of

it is a receiver because they can't accept the fact that

their definition is flawed. And on firearms like this, no

part is a receiver, according to their own definition.

Therefore, they summarily choose a part, tell licensed

manufacturers to put a number there, or importers, because

if they don't then they're going to be prosecuted or

civilly sanctioned. And, therefore, when you encounter

that firearm, that's where you're going to find the serial

number, not because it satisfies the definition, but that's

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because that's where ATF told them put it.

Q. Is there a requirement --

THE COURT: Give me one moment, counsel. Go

ahead, counsel. I apologize for interrupting.

MR. VANN: No problem, Your Honor. Thank you.

BY MR. VANN: 

Q. If you're teaching a new agent how to do nexus

training, where would you tell him to look on an AR-15 in

order to find a serial number?

A. I would tell them to look on the lower because

that's where ATF makes manufacturers put it.

Q. Tell me -- or are you aware of any provision that

requires a manufacturer to submit a firearm to ATF before

it can be produced?

A. Yes.

Q. Where is that provision?

A. There isn't a provision. It's a common sense

practice by a manufacturer to make sure that the part that

he's putting the serial number on is in agreement with

their opinions.

Q. Mr. O'Kelly, I'm being very specific with my

questions, I think it's going to be easier.

Is there a provision that requires a manufacturer

to submit a firearm, a new firearm, to the ATF before it

can be manufactured?

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A. I'm not familiar with one.

Q. There isn't one, is there?

A. I don't believe so.

Q. In fact --

THE COURT: Well, he said he doesn't believe so.

You know one way or the other?

A. I cannot cite one, Your Honor. I don't know of

one that's coming to mind.

THE COURT: Once again, counsel, if it's a

vacuum, you'll let me know, if you or somebody else let me

know. I think getting to the point, again, where you're

asking him to testify on a matter of law, and it is what it

is.

MR. VANN: I understand, Your Honor.

THE COURT: This witness has said he can't cite

one, which means that as he sits here now he doesn't know.

Go ahead.

BY MR. VANN: 

Q. So where does Anderson Manufacturing place their

serial number?

A. On the part referred to as the lower.

Q. Okay. And do you -- are you aware of Anderson

Manufacturing ever reaching out to ATF and asking where

they should place that serial number?

A. I'm not aware, no.

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Q. Are you aware of, let's say, FNH ever reaching

out to ATF asking them where to place a serial number on an

AR?

A. No.

Q. Sig Sauer?

A. No.

Q. Smith and Wesson?

A. What I'm aware of is a letter from ATF stating

that the lower is going to be considered the receiver, even

though it doesn't have all the elements in it --

Q. Okay. And when was that letter?

A. -- and that's what everybody goes by.

Q. And when was that letter?

A. Where or when?

Q. When?

A. In the 19 -- late '60s or early '70s. I've

produced a copy of it for other attorneys in other similar

cases, but I can't give you the exact date off the top of

my head.

Q. And when was ATF formed?

A. ATF became its own bureau in 1972. Prior to that

it was part of the IRS.

THE COURT: Counsel, excuse me. Ms. Keegan (sic)

and Ms. Johnson, if you wish to have this witness provide

you with a copy of that letter, and if you want to offer it

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as an exhibit, subject to objection, once that happens I'll

keep the record open for that.

MS. JOHNSON: Thank you, Your Honor.

MR. VANN: Thank you, Your Honor.

BY MR. VANN: 

Q. Now, you frequently have said throughout your

testimony that what ATF refers to as -- what does Anderson

Manufacturing refer to as their receiver -- as their

receiver?

A. What ATF tells them to.

Q. Okay. Again, ask you the same question, do you

know if they've ever asked ATF for an opinion?

MS. CAHOON: Your Honor, objection. This is

asked and answered at this point.

THE COURT: Overruled. 

MR. VANN: Thank you.

BY MS. CAHOON: 

Q. Do you know if Anderson Manufacturing has ever

asked ATF which one is the receiver?

A. No.

Q. Okay. So again, what is Anderson Manufacturing,

to your knowledge --

THE COURT: Counsel, I understand your point. I

will -- I understand you're challenging the statement what

ATF has told him, okay, which is, I think, what you're

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talking about.

BY MR. VANN: 

Q. What does every other manufacturer call the

receiver for the AR that they produce?

A. The lower because ATF tells them to.

MR. VANN: Your Honor, at this point I ask that

he respond to the question. We've already addressed that.

THE COURT: I'm going to strike that reference

to, quote, what the ATF tells them. If there is such a

document, regulation, guidance, whatever, to which someone,

A, can refer, and which ATF has otherwise made commonly

available, that's one thing.

MR. VANN: Thank you.

THE COURT: Okay. And I understand that Mr. --

Mr. O'Kelly, that's what you -- I gather you -- that's not

what you taught agents because obviously you were required

to say, point to the lower receiver, but I think the

question is -- I just don't think there's a foundation for

what ATF told, much less what, quote, was on Anderson's

mind when it -- its designers said we better put the

receiver there, the serial number there, so we don't, you

know, get shut down for selling un-serialized weapons. I

understand.

BY MR. VANN: 

Q. And when you trace a firearm that's manufactured

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by any licensed manufacturer, is there required to be their

manufacturing information along with the serial number?

A. When you trace a firearm, is there required to

be --

Q. Absolutely, it is a very disjointed question, I

apologize for that.

If you pick up a firearm that you're going to

trace and it comes from a licensed manufacturer, would you

expect to find, in attempting to trace this firearm, the

manufacturing information along with a unique serial

number?

A. Yes.

THE COURT: Where -- I'm sorry, I'm curious --

where would you find -- are you talking about -- I'm a

little lost. What do you mean by manufacturing information

and so forth? You lost me a little bit.

BY MR. VANN: 

Q. Would you find the name of the manufacturer, the

city and state where it was produced along with a unique

serial number?

A. Would I, or where would I?

Q. Would you?

A. You would, yes.

Q. Okay. And where would it typically be located?

A. ATF has ruled that the serial number has to be on

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the receiver.

Q. Let me ask you a question about ATF has ruled.

Is that in the regulation, or is that in the statute, or do

you know?

A. 18 U.S.C. 9323(i) says, as I recall, if a

licensed manufacturer makes a receiver, then the number has

to be on the receiver.

Q. So that's --

A. But it's not in reverse. Just because you put a

serial number on something doesn't make it a receiver.

Q. But that's in the statute, correct?

A. 18 U.S.C. 923(i) is.

Q. And if you were to pick up a firearm that had no

markings, would you be able to trace that firearm?

A. No.

Q. Why not?

A. Because it takes a serial number to be able to

identify that gun as being different from one exactly like

it.

Q. Okay. Let me draw your attention to the AR

sitting in front of you, the complete one, Government's

Exhibit 3 and 4, I believe. Do you mind pulling the pins

on that and separating the two units?

THE COURT: Give me a moment, please, Mr. Vann.

MR. VANN: Yes, Your Honor.

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THE COURT: What was that citation again, 924(i)?

A. 923(i), Your Honor. I'm going by memory,

hopefully I'm right.

THE COURT: I understand. No problem. Go ahead.

MR. VANN: Thank you, Your Honor.

BY MR. VANN: 

Q. I'll ask you to take Government's Exhibit 4 in

your hand. And can you show this to The Court? Your

Honor, Government Exhibit 4?

A. One moment, please.

Q. You're holding up both of them, just 4?

A. I'm sorry?

Q. Just 4, not 3 and 4, just 4.

A. Which is the --

Q. The upper.

THE COURT: Half a second. I'm sorry. Okay.

BY MR. VANN: 

Q. And does that have the manufacturing information

contained anywhere on the sample you're holding in your

hand?

THE COURT: I'll take judicial notice that it

would not; is that correct?

A. Yes, sir, that's correct.

THE COURT: Wouldn't be a -- would there be any

firearm anywhere, that component would have a serial

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number, the barrel -- I'll even call it the barrel where

the upper is.

A. There's no law against putting a serial number on

every part of the firearm if a manufacturer so desires, but

they're only required to put it on what ATF says is the

receiver.

Q. And since the serial number requirement -- are

there any reports that are required to be kept as to upper

receiver or barrels?

A. ATF doesn't require any.

Q. So if you found one that did have a serial

number, would you know how to trace that if it just had a

number?

A. ATF's tracing center doesn't trace non-firearms.

Q. It would be untraceable, wouldn't it?

A. Then upper would be untraceable, yes. I mean,

they could trace that serial number in conjunction with the

manufacturer if that serial number -- let's say on a Glock,

for instance, a Glock has the same serial number on the

frame, what ATF calls the frame, and on the barrel, and on

the slide, because in all other gun manufacturing countries

in the world, none of them consider a frame to be a

firearm. They consider a barrel to be a firearm, or a

breechblock, or both, to be a firearm. Therefore, Glocks,

being made in Austria, the barrels and the breechblock or

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slide is serialized. And then if it's coming to the U.S.,

they're, like, oh, yeah, that's going to America, put a

number on that piece of plastic for those Americans too, so

it has three numbers.

So if, to answer your question, you were going to

try to trace the slide from a Glock that you found and you

can determine, yes, it was made by Glock and here's the

serial number, ABC123, you could trace that serial number,

and what it would give you is the pedigree on the frame

that that goes to since that's the part that ATF decides

they want to control.

Q. But it wouldn't necessarily be related because

you could take that slide off and put it on another

firearm?

A. Correct.

Q. Okay. So as it stands now, though, there's no

records, that's untraceable, we know the one in front of

you now has no manufacturer's mark and no serial number,

correct?

A. The upper does not, correct.

Q. So can I buy that as a complete unit?

A. Yes.

Q. In fact, lots of people buy that as a complete

unit now, correct?

A. Yes.

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Q. So I can -- do I go to a firearms dealer and buy

that?

A. You can go to anyone who has possession of one

and buy it.

Q. Can I go on the internet, order it, and have it

sent to my house?

A. Yes.

Q. So that can show up, complete with the bolt, bolt

carrier group, barrel, everything attached to it ready to

go? 

A. Yes.

Q. Okay. Now, tell me about the lower. Does that,

as it stands right there, have a manufacturer's mark on it?

A. Yes.

Q. Does it have a serial number on it?

A. Yes.

Q. Can I trace that firearm with the information

that's present on the lower receiver of that firearm?

A. Yes.

Q. Okay. Your contention is that that is not a

firearm receiver?

A. Correct.

Q. And therefore, that is not a firearm, correct?

A. Correct.

Q. Okay. So earlier you talked with counsel that

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you have to have some specialized training in order to

assemble an AR, correct?

A. Yes.

Q. It's not just as simple as snapping it together

like Legos?

A. Correct.

Q. In fact, you have to -- there are some special

tools you might need. Could you get that training off,

say, the internet?

A. Probably.

Q. Do a lot of people do that, put them together

that way?

MS. CAHOON: Objection.

THE COURT: He said probably, so --

MR. VANN: I'm fine with that, Your Honor.

BY MR. VANN: 

Q. But under your theory, that part's not

controlled, correct, should not be controlled?

A. The lower should not be controlled, according to

ATF's own definition in the CFR, no.

Q. At all?

A. No.

Q. So in fact, I wouldn't need a license to

manufacture any of those pieces, correct?

A. According to the sloppy way that they wrote the

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definition in the CFR, no.

Q. So according to your theory, I can produce that,

and then I can sell that on the internet, correct?

A. It's not my theory. All I did was read the CFR,

just like you can read it, and that doesn't match it, so

the answer is yes.

Q. According to your opinion, I then no longer need

to control that piece at all?

MS. CAHOON: Objection. Your Honor, this is

outside --

THE COURT: A little argumentative. Rephrase.

BY MR. VANN: 

Q. Do me a favor, can you put that together for me?

A. Put what together, the rifle?

Q. The lower and the upper.

A. Sure.

MR. VANN: And, Your Honor, I think this is part

of --

THE COURT: One moment, please, I'm making a

note.

BY MR. VANN: 

Q. Hold on, please. Mr. O'Kelly, not yet, please.

Could you put it together now?

A. Yes.

Q. Is that's what's required to assemble the lower

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that is uncontrolled and the upper that is uncontrolled?

A. Snap upper to lower, yes.

Q. So under your theory, I can order the top and

have it sent to my house because we both agree that doesn't

expel a projectile by means of explosive?

A. Right, the upper can.

Q. Would you say the upper's a firearm in and of

itself?

MS. CAHOON: Objection.

THE COURT: Overruled. I did not hear the

answer.

A. The answer is it's not up for me to say, ATF

decides what they think is a firearm or not.

Q. You've given an opinion on what you consider the

receiver, and you talked to The Court about your experience

with firearms. Would you classify, and you've also talked

in your CV about classification of firearms, would you

classify the upper as a firearm in and of itself?

A. No.

Q. Okay. And the lower you say is not a firearm in

and of itself?

A. Correct.

Q. So under your opinion, you could order the top,

have it sent to your home, because it's not controlled,

have the bottom sent to your house because it's not

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controlled, and --

A. It is controlled, I didn't say it wasn't

controlled.

Q. Under your theory it would not be controlled? 

MS. CAHOON: Objection, Your Honor.

THE COURT: Let him --

A. My theory is not -- I don't have some theory that

it's not controlled.

Q. Under your opinion --

A. I'm giving you my opinion that it doesn't match

the four elements in the CFR, so, therefore, it shouldn't

be controlled, because the CFR says only items which do

match that definition should be controlled.

Q. Mr. O'Kelly --

A. This doesn't, just like my glasses don't match

the CFR --

Q. Mr. O'Kelly, we understand that.

A. Well, that's not the way you worded it.

Q. Under your opinion, the lower portion complete

should not be controlled, so the extent of the assembly

required would be that you push two pins and you have an

operable AR-15?

A. No, putting the upper and lower does not give you

an operable AR-15, you have to install all the parts in the

lower.

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Q. If you have a complete lower, under your theory,

excuse me, under your opinion, you have a complete lower,

it's not controlled, cannot expel a projectile by means of

explosive, and in your opinion it is also not the receiver

of a firearm, it could then be shipped absolutely complete

with the trigger, with the hammer, with the disconnecter,

with the pistol grip and with the stock buffer tube, buffer

spring, every piece attached to it, under your opinion it

would not be controlled, correct?

A. You're going to have to repeat, you have a lot

going on in that question.

THE COURT: Counsel, I believe your question is,

and -- is that it would be lawful, in light of the

regulation and its interpretation of the Gun Control Act,

meaning both of those provisions, as you read them, for a

purchaser to order, and for a manufacturer to ship in

interstate commerce, unit, a connected unit, an assembled

unit that included the upper and lower receiver because the

regulation refers to the receiver, and there is no receiver

per the regulation in such a unit or shipment? If my

question didn't make sense, say so. 

A. I'm sorry, I do not understand the question.

MR. VANN: I think I'll ask this and make it very

simple.

THE COURT: It's your witness, you ask the

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question.

MR. VANN: Thank you, Your Honor. I'm going to

approach.

BY MR. VANN: 

Q. Could you disassemble this for me? Mr. O'Kelly,

I'm holding up Government's Exhibit 4, it is a complete

upper receiver, would you agree with that?

A. Yes.

Q. It is not controlled currently, we would agree

with that?

A. Yes.

Q. It can be shipped, and you testified people do

order this and have it shipped to their homes?

A. Yes.

Q. Okay. So it's lawful for me to order this off

the internet and have it shipped --

A. Yes.

Q. -- to my house, okay. Your opinion is that this

is also, and I'm holding up Government's Exhibit 3, this is

also not a firearm because it does not expel a projectile

by means of explosive, correct?

A. Correct.

Q. It's not a silencer?

A. Correct.

Q. Not a destructive device?

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A. Correct.

Q. And it, under your opinion, does not contain the

receiver of a firearm?

A. Correct.

Q. Correct. Okay. So then under your opinion I

could order this complete lower receiver and have it

shipped to my house without any markings from a person who

is not regulated?

A. If ATF went according to the regulations, yes.

Q. Okay. So I would have this -- I could then,

under your opinion, have this shipped to my house, and then

have this shipped to my house, both of those actions would

be lawful, correct, interstate --

A. No, because then ATF would finally take out a pin

and change the word and to or in the definition and it

wouldn't be lawful.

Q. Mr. O'Kelly, I'm not asking for your opinion

about what ATF might do in response to that. I'm saying

under your opinion these things could be shipped to your

house independently, correct?

A. If ATF went by the definition, yes.

Q. Okay. Now, what I'd like you to do is

demonstrate for The Judge what would be required to make

these two pieces into a configuration that would expel a

projectile by means of an explosive. Can you put these two

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pieces together?

A. Again, sure.

THE COURT: One moment, please, I'm making a

note. I'm not watching, but go ahead. Wait a minute. Go

ahead, counsel, I apologize for interrupting.

BY MR. VANN: 

Q. Can you assemble those two pieces?

A. And so as a result we should pretend that things

fall within the definition that don't satisfy --

Q. Mr. O'Kelly --

THE COURT: There's no question.

BY MR. VANN: 

Q. I'm not asking for commentary.

A. Yes, sir.

Q. Thank you. Is that now -- you have expertise as

a firearm's specialist in your CV, right, would that be a

complete AR that could expel a projectile by means of an

explosive?

A. Yes.

Q. So it wouldn't take, as you said with counsel, 30

minutes and some specialized training and tools to assemble

that, you would nearly need your thumbs to push two pins,

correct?

A. Yes.

Q. Okay. Let's talk about the receiver itself, and

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I believe that's been marked as Government's Exhibit 2, the

receiver. And you kept saying it has two of the four

requirements under the CFR?

A. Yes.

Q. What are the four requirements under the CFR?

A. House the hammer, house the bolt, house the

firing mechanism, receive the barrel.

Q. And is receiving the barrel a requirement of the

CFR?

A. Yes.

Q. Okay. And it says -- what does it say

specifically?

A. And is usually threaded at its forward portion to

receive the barrel.

Q. Does that mean must or that means usually?

MS. CAHOON: Objection, Your Honor.

A. It is usually threaded.

THE COURT: It reads as it says. It says what it

says.

MR. VANN: Well, Your Honor, I want to know --

he's now claiming it's a requirement, and I'm asking what

his interpretation of the word is for purposes of his

definition that he's applied.

MS. CAHOON: Your Honor, if I may, I think that's

the very reason --

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THE COURT: Counsel, I get your point --

MR. VANN: Thank you, Your Honor.

THE COURT: -- which is the regulation standing

on its own suggests to the reader, and we have to assume an

uninformed reader who's relying only on that set of terms,

the term usually does not mean always. Now, to somebody

who is familiar with a firearm, as I am not, that might

somehow seem inconsistent or senseless because the three

components within the regulation can only have a

utilitarian function, which is to enable the weapon to

expel a projectile by means of an explosive, if there is a

barrel so that the projectile when it goes out, it simply,

at some point, drops immediately to the ground because it

hasn't otherwise been directed. I get your point.

MR. VANN: Thank you, Your Honor.

BY MR. VANN: 

Q. Would we agree that there are three things that

are required for a receiver under the CFR, the attachment

of the hammer, the trigger group or firing mechanism and

then either houses the bolt or breech face, we would agree

with that, wouldn't we?

A. I agree that there are at least three.

Q. Possibly fourth?

A. Well, I say four.

Q. Okay. Now --

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THE COURT: My question is, sir, I believe the

question is what and only what are the terms of the

regulation.

A. The --

THE COURT: Does refer to those three, and the

middle one is in the distinctive.

A. Your Honor, the fourth one, the word usually

refers to the word threaded, is usually threaded. It's not

usually receives the barrel. That's --

THE COURT: I understand it's your contention

that, to the extent -- at the very least to be more clear,

and to conform with the way things are in the real world, a

weapon, the breechblock, need not be threaded, it simply

needs somehow to keep the barrel in place so that the

projectile, when ejected, goes in the direction in which

the person pulling the trigger wants it to go, simply

doesn't literally fly off anywhere, and who knows were.

A. Yes, sir, I agree.

THE COURT: In other words, it's your contention

that the draftsman could have and should have been more

careful because, as it is, there is a degree of ambiguity,

at least as one reads the words themselves?

A. Yes, sir.

THE COURT: To bring comprehension to those

words, given that ambiguity, one must have some additional

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information about how a weapon is constructed, a weapon

capable of ejecting a projectile by means of an explosive.

A. That's true, Your Honor.

THE COURT: Thank you. You may continue,

counsel.

BY MR. VANN: 

Q. Now, on the lower receiver that you have there,

we would agree that you pin the trigger group to it,

correct?

A. The trigger does install into this piece using a

pin, yes.

Q. And the hammer does as well?

A. Yes.

Q. And on the complete one you have in front of you,

how does it hold the upper receiver in place?

A. By pins.

Q. Capture pins, in fact, right?

A. Yes.

Q. And by capture pins, I mean, and tell me if I'm

wrong, you don't push them and they fall out, they actually

are retained in the lower receiver, correct?

A. Correct.

Q. And that grabs hold of ears on the upper receiver

and holds that receiver tight that incorporates the bolt;

is that right?

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A. Yes.

Q. And so the pins attach to the lower receiver,

hold the upper receiver in place, that then holds the third

component, which is the bolt and also the openings -- well,

we won't go into that, also is threaded for the barrel as

well, correct?

A. Yes.

Q. Okay. So the piece that we're talking about that

is designated and it's marked by Anderson Manufacturing as

their receiver contains two of the components, and then

pins are captured in it to hold in place another portion of

the firearm that retains the other two?

A. That doesn't house them.

Q. Okay. All right. But it provides an attachment

point for the housing, correct?

A. Yes.

Q. Okay.

THE COURT: The only, quote, housing is in -- is

shown in Government's Exhibit A; is that correct?

A. Yes, Your Honor.

THE COURT: I call that envelope or a container,

I believe you testified -- I believe you testified that

there is nothing similar, and it doesn't appear to be from

what you've shown here?

A. Well, when I use the word housing, Your Honor,

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I'm referring to the verbiage in the CFR that says that

part to which houses, and then lists the parts.

THE COURT: Houses, contains, holds?

A. Yes, sir.

THE COURT: And closes?

A. Yes, sir.

MR. VANN: And for purposes of the record, I also

want to -- as part of Government's Exhibit 2 is the chain

of custody bag with the markings on it, that will be part

of that exhibit.

THE COURT: No objection, right?

MS. CAHOON: No, Your Honor. Thank you.

THE COURT: Excuse me, Ms. Keegan (phonetic), as

Mr. Weldon knows, tell me, don't bother with the chain of

custody, my question simply, is there any dispute about it

being what the proponent claims it is? All the stuff you

learned in law school, only fuss with what's in front of me

and they'll only do it once, but go ahead.

MR. VANN: Thank you, Your Honor.

BY MR. VANN: 

Q. Let's talk about how these are sold, both the

complete AR's and the lower receivers. Are lower receivers

manufactured by licensed manufacturers throughout the U.S.?

A. Because ATF insists they must be, yes.

Q. Mr. O'Kelly --

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THE COURT: The answer's yes.

A. I answered the question, sir, I answered yes.

Q. Thank you. Are they sold by multiple

manufacturers throughout the U.S.?

A. Yes.

Q. And can I purchase an AR lower from this

manufacturer and get pieces from all different ones and

assemble my own firearm?

A. Yes.

Q. Okay. And if I wanted to buy that, me, the

individual, wants to buy that firearm, how would I go about

buying that lower receiver so that I could assemble, in my

house a firearm?

A. According to ATF you would have to complete a

form called a 4473 giving your name, address, date of

birth, place of birth, et cetera, sex, height, weight,

you'd have to answer a series of questions yes or no as to

whether you're prohibited from possessing a firearm,

whether you're the actual owner -- I'm sorry, purchaser of

the fire arm, because ATF insists that that is a firearm,

and then you would sign and date it. You would withstand a

background check, which the dealer would call in to either

the FBI or the state police, depending on the state in

which you're purchasing it, after which if the dealer gets

to proceed you would be able to take it home.

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Q. And if were to walk into a dealer who's selling

these and request to purchase one without filling out that

form, would, by law, I be able to just take it and leave?

A. No, because if you did, ATF would come after them

and take their license because they insist that's a

firearm, even though it doesn't match the definition.

THE COURT: And that is in fulfillment of its

understanding of its obligations under the Gun Control Act?

A. Yes, sir.

Q. If I were to buy the complete AR, would I have to

do the same thing?

A. Yes.

Q. That's the firearm, you even concede that's a

firearm, correct?

A. That is definition one of weapon which expels by

action of an explosive.

Q. Okay. So if I go in, I have to fill out the

form, background check is run, and that's the control

that's in place to ensure that someone who's prohibited

doesn't have access to a firearm, correct?

A. Yes.

Q. Lastly I want to talk about the FAL, I think you

spent some time on that, to show the inconsistency in

determinations. If I were to manufacture a machine gun

from an AR, what's the difference in the lower receiver

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that you see in front of you, and a lower receiver for a

machine gun for an AR?

A. The only difference, according to ATF, is a very

small hole just slightly above this hole for the selector,

which I'm indicating with my little finger (indicating).

Probably an 1/8 of an inch from this top surface there

would be a hole the size of -- to use layman's terms, about

the size of a pencil lead, going clearly through the hole

receiver. ATF says that changes this from a Gun Control

Act receiver to a NFA receiver.

Q. And what is the purpose of that hole?

A. To accommodate the axle pin for a part called the

auto sear.

Q. So it has a function, it holds the machine gun

part in place, correct?

A. Yes.

Q. So there is a difference between an AR that is a

semi- automatic receiver and an AR that has been

manufactured for machine gun?

A. Correct.

Q. Okay. And that distinction is the hold, that's

the change you would have to make in the lower receiver,

correct?

A. That's ATF's ruling, yes.

Q. Okay. Under the FAL, what modification would you

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make to an upper of an FAL -- I'm sorry, to a lower of an

FAL, for a semi- automatic and the lower of an FAL for a

fully automatic?

A. Well, you wouldn't modify the lower, you would

just go get a three-position lower. You would otherwise

try -- you would be trying to reinvent the wheel to modify

a semi-automatic FAL lower.

Q. Isn't it true that the modification in order to

take an FAL from a semi-automatic to an automatic is made

in the upper receiver and not the lower receiver?

A. Correct.

Q. Okay. So there's a difference between the FAL

and the AR in that what makes one a machine gun and the

other a machine gun, you have to make modifications to

different receivers, correct?

A. That's the only comparison, yes. In contrast to

the differences between them --

Q. The only --

THE COURT: Excuse me, I believe you answered the

question, okay. Or if you did not, counsel let him

continue, but I --

MR. VANN: Your Honor, I think he did, and I

didn't mean to cut you off.

THE COURT: No problem.

BY MR. VANN: 

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Q. So you -- the difference is that you would have

to modify different portions of the firearm in order to

make it into a machine gun?

A. Correct.

Q. Okay.

MR. VANN: No further questions, Your Honor.

THE COURT: Tell me, I'm sorry, I've already

forgot what's FAL stand for?

MR. VANN: FAL is a type of firearm that --

THE COURT: Type of semi-automatic rifle that

can, as you indicated, be converted to an automatic?

BY MR. VANN: 

Q. And Mr. O'Kelly, just to reiterate, the FAL's

also a two-part receiver system, upper and lower, correct?

A. Yes.

THE COURT: Okay. Ms. Keegan (sic), I think,

folks, after this we'll take a short break, just FYI. We

won't take a lunch break -- we'll find out how much longer

we're going to go. Go ahead, Ms. Keegan.

MS. CAHOON: Thank you, Your Honor, I'll be

brief. And it is Cahoon, not Keegan.

THE COURT: Oh, I'm sorry.

MS. CAHOON: That's quite all right. It's an

unusual last name.

THE COURT: Cahoon, Calley, Cavanaugh, Carr --

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MS. CAHOON: Too many C names in your life.

THE COURT: Too many Irish genes floating around

the room.

MS. CAHOON: Exactly right.

REDIRECT EXAMINATION 

BY MS. CAHOON: 

Q. Mr. O'Kelly, just a few brief questions for you.

If you could turn to Defense Exhibit G -- or, excuse me, H,

which is in that black binder, it's a three-page document.

A. Okay.

Q. And are you familiar with that document,

Mr. O'Kelly?

A. Yes.

Q. And what is that document?

A. It's an affidavit which I wrote.

Q. Was that an affidavit you wrote for this case,

right?

A. Yes.

THE COURT: I'm sorry, I apologize.

BY MS. CAHOON: 

Q. And I believe Judge Carr asked a question during

cross-examination as to whether or not there had been a

case involving a similar issue, and in your affidavit you

talk about the Jimenez case did that case also involve the

CFR definition of a firearm?

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A. Yes.

Q. And if you know, do you know what the resolution

of that case was?

A. I do not recall. If I did know -- I have had

quite a number of cases.

Q. Not a problem.

THE COURT: I'm not sure Jimenez is directly on

point. Obviously both parties cite it.

MS. CAHOON: Certainly, Your Honor. We're happy

to provide argument at a later time.

THE COURT: Of course, I'm just saying --

BY MS. CAHOON: 

Q. Just a few more points of clarification,

Mr. O'Kelly. You received some questions --

THE COURT: We can talk about this later. It is

my impression, my recollection from my reading of the

briefs, actually occurred sometime last week because I had

lots of other things in between, but that to the extent

that Jimenez is on point, and I understand the

contentions -- contention that it is, I'm really not sure

that's, quote, directly on point. I don't think there's --

I don't think it raises precisely the issue in front of me.

And that's all I'm saying.

MS. CAHOON: Thank you, Your Honor. I appreciate

that.

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THE COURT: It may still have pertinence, may

still be controlling, but I just don't -- I don't think

there's a case, at least none has been cited, that is four

square, contains all the components, or lack thereof, of

this case, okay?

MS. CAHOON: And thank you, that's fine, Your

Honor. And if you're willing, we certainly have argument

about that at the close of the hearing.

THE COURT: Don't worry. I expect that. I

invite that. I require that.

MS. CAHOON: Thank you, Your Honor.

BY MS. CAHOON: 

Q. Mr. O'Kelly, we've been talking a lot about this

lower receiver, upper receiver, if you could just grab

Government's Exhibit 2, which I think you told us is just

the lower receiver, correct?

A. According to ATF, yes.

Q. Right.

THE COURT: Let me ask you a question. I'm

sorry. Hold that back up, would you please? There is, at

the very top fixed to that a round and open portion. What,

if anything, goes through there?

A. Your Honor, that's where the shoulder stock

screws into it. You can see --

THE COURT: That's not where the barrel goes

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through?

A. No, no, sir. The barrel would be toward the

front.

THE COURT: I understand.

BY MS. CAHOON: 

Q. So you've already explained to us that the lower

receiver, as defined, that you're holding in your hand

there, doesn't have all of the four CFR components pieces.

If we were to take the lower receiver and the upper

receiver as defined, would they have all of those four

components pieces together?

A. Yes.

Q. You received some questions from the government

today in which you were asked should not be controlled.

Could you clarify, it's not your opinion today about

whether or not certain components of firearms should be

controlled as a matter of policy, correct?

A. I'm not so sure I understand.

Q. I'm sorry, that's a poor question, let me ask it

better.

You're not -- are you here today to provide an

opinion about what would be good firearm policy in terms of

whether or not that's -- that's an even worse question.

Let me just ask you this. The pieces that you

snapped together for us earlier, for the government's

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counsel, the -- did that include a stripped lower receiver

or a completed lower receiver that you snapped together?

A. That was a completed lower.

Q. Thank you. And if we had only a stripped lower

receiver, as we do in this case, would you be able to

easily snap it together to make a complete firearm?

A. Easy being a relative term, it depends on who's

doing it.

Q. So if we had only the stripped lower receiver,

would we need someone with some skill in firearms and

possibly also tools to make it into an operable firearm?

A. Yes.

MS. CAHOON: Your Honor, if I can just have a

moment, I just want to confer?

THE COURT: Absolutely.

BY MS. CAHOON: 

Q. Just briefly, Mr. O'Kelly. Did the, what's being

defined as the lower receiver in this case, did the one at

issue in this case that you reviewed, was that stripped or

complete?

A. It stripped, it's bare.

Q. And would a stripped lower receiver require more

skill and time to make into a complete firearm?

A. Yes, of course. That is quite a number of parts

that has to be installed.

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Q. So it wouldn't be as simple as what you did for

The Court a moment ago where you snapped the two completed

pieces together, correct?

A. No. Not only do you have to add quite a number

of parts, they have to be done in certain order, because in

some situations one retains the other, so you can't even do

them in the wrong order.

Q. Thank you.

MS. CAHOON: We have nothing further. Thank you,

Your Honor.

MR. VANN: Your Honor, if I may?

THE COURT: Absolutely. Sure.

MR. VANN: Thank you.

RECROSS EXAMINATION 

BY MR. VANN: 

Q. Mr. O'Kelly, snapping in those parts to the lower

receiver wouldn't change your opinion or your analysis of

whether or not it classified as a receiver, would it?

A. No, sir.

Q. So it wouldn't matter if it came completely

stripped or fully completed, under your opinion even fully

completed, it is not a receiver?

A. Fully completed it still only has two of the

elements in the CFR, so in my opinion, no, it's not there.

Q. Thank you.

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THE COURT: Ms. Cahoon, anything further? 

MS. CAHOON: Nothing additional for this witness.

Thank you.

THE COURT: Mr. O'Kelly, you may step down.

You're welcome to stay, or you're free to go. It's

entirely up to you.

What's next? How much time -- I don't expect to

take closing argument and then go from there. I think it's

important, fairly substantial amount of information has

been generated so far in this hearing, I suspect we'll get

more from the government's witness, and I think it's

appropriate to give you time, if you wish, to order a

transcript and set a briefing schedule. Are both the

defendants out of custody?

MR. KURT: No.

MS. CAHOON: Mr. Robison is out of custody.

Mr. Robison is out of custody, I believe his

co-defendant --

THE COURT: Given the delay, I think we may have

discussed this before, but in terms of -- that's a separate

issue, but perhaps we can talk about that a little bit

further this afternoon just to see, obviously more sense --

Speedy Trial Act. And also Mr. Robison wants to know, just

as Mr. Rowold, what's going to happen at the end of the

day. I understand that, but it's going to take a little

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bit of time to get these issues briefed up further, and

it's going to take me some time to reach and write up an

opinion. So anyway, that's neither here nor there, all I'm

saying I don't expect -- maybe if you want to try and

submit it to me today, fine, I'll leave that up to you.

So what's next on your side?

MS. CAHOON: Your Honor, and I do, just to answer

the question you just asked, I think our preference would

be to have post -- would be to have post-hearing briefing

if this Court --

THE COURT: That's my custom.

MS. CAHOON: We are not calling anyone

additional, so we'd be happy to move for admission of our

exhibits.

THE COURT: Any objection to the items contained

in their binder? 

MR. VANN: No, Your Honor.

MS. CAHOON: Thank you, Your Honor. Then we have

nothing further.

THE COURT: Including Exhibit Number 2, the

article itself?

MS. CAHOON: The lower receiver itself, as well

as the firearms are government's exhibits for Your Honor.

If for some reason the government doesn't move to admit

them, then we would ask that they be admitted.

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THE COURT: Obviously I'm not going to take the

weapon. Just -- government, what's your -- my question,

really, is how much of a break should we take, ten minutes

or so just to --

MR. WELDON: A short break would be fine, Your

Honor, and then maybe expect half hour or 40 minutes

additional testimony from our witness.

THE COURT: What if I charge you a dollar a

minute for every minute after that?

MR. WELDON: Maybe five minutes after that,

Judge.

THE COURT: That's okay. If we take the time

we've taken so far, that's fine. My reputation for brevity

in allowing its opposite is not that great anyway. So

seriously let's take about a ten minute break rather than a

lunch break.

(A brief recess was taken.)

THE COURT: The government may proceed.

MR. WELDON: Your Honor, the government calls

special -- I'm sorry, Firearm's Enforcement Officer Daniel

Hoffman to the stand.

THE COURT: Is there any objection to his

qualifications for the matter at hand, for purposes of this

hearing anyway?

MS. JOHNSON: No, for purposes of this hearing,

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no, Your Honor.

DANIEL HOFFMAN, 

was herein, called as if upon examination, was first duly 

sworn, as hereinafter certified, and said as follows: 

THE COURT: Good morning. Good noon, I guess.

Once again, about that distance. Mr. O'Kelly did a fine

job actually.

Tell me your name, please.

A. Daniel Hoffman, H-O-F-F-M-A-N.

THE COURT: Okay. And are you presently

employed?

A. Yes, sir. Currently I'm employed with the

Firearm's and Ammunition Technology Division of the ATF.

THE COURT: How long have you been employed with

that division or unit?

A. I began there in January of 2016.

THE COURT: And how long have you been employed

by ATF?

A. That's when I joined ATF, Your Honor.

THE COURT: And before that what occupation did

you have?

A. Before that I performed security at government

facilities.

THE COURT: And for whom? Was there a particular

agency or set of agencies, or was it sort of a rotating

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assignment?

A. It was a contractor that worked for Federal

Protective Services.

THE COURT: How long did you work for them?

A. About three-and-a-half years I believe.

THE COURT: Okay. And before that?

A. Before that I went back to school to get my

education after my military time.

THE COURT: Okay. Where was that, what was the

education?

A. I attended, or I went online to Ashford

University where I received a Bachelors in Business

Economics and a Masters Degree in Business Administration.

THE COURT: Okay. And before that?

A. Before that I kind of have duel employment. I

worked retail and management, along with served in the

National Guard.

THE COURT: Okay. How long were you in the

National Guard?

A. Approximately 13-and-a-half years.

THE COURT: And are you still -- are you in the

reserve or --

A. No, sir, I left after my deployments.

THE COURT: What rank did you attain?

A. Sergeant E-5.

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THE COURT: Okay. And what was your specialty or

whatever in the National Guard, what were you trained to

do?

A. I began as a -- the first four-and-a-half years

as a small arm's repairman, basically trained on all the

weapon systems. After that I moved over to infantry where

I did a few deployments in Iraq and was basically the

unit's weapons Sergeant.

THE COURT: What does that mean?

A. I trained my soldiers on -- especially when we

went to Iraq, we were a light infantry group, and we were

given vehicles so we didn't have a lot of experience on the

larger machine guns, the Ma Deuce 50 caliber machine guns

and Mark 19 grenade launcher, I got everybody up to speed

on them and maintain those weapon systems.

THE COURT: How did you learn the information and

gain the experience necessary to tell other folks how those

things worked?

A. Essentially through my time as small arms

repairman, little more than just armorer, you're completely

trained on the operating systems, not just how to break

them down and reassemble them, but the principles of how

they operate.

THE COURT: And what kind of firearms or other

weapons are, quote, small arms?

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A. We started with the M-9 Beretta pistol, and we

went all the way up to 155-millimeter Howitzer Cannon which

can expel a projectile 30 miles, so it's quite a big thing.

THE COURT: So a sidearm is a sidearm, but not

all small arms can be carried in one hand or slung across

your back?

A. Correct, Your Honor.

THE COURT: And is there any other training or

experience that you've had that, in your view, qualifies

for the question, as you understand you may be asked, and

the testimony you expect to offer?

A. Primarily my training as my time in the ATF, we

do a very thorough two year on-the-job training program

when we become an FEO.

THE COURT: When did you join the ATF?

A. January of 2016.

THE COURT: '15, '16?

A. '16, Your Honor.

THE COURT: '16. So been about a year and eight

or nine months since you completed that portion of your

activity, your training; is that correct?

A. Yes, Your Honor.

THE COURT: And once again, what do you do day in

and day out, what are your -- what's the scope and span of

your assignment with ATF?

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A. Essentially the Firearms and Ammunition

Technology Division provides the technical guidance and

classification on how items fall under the federal law.

THE COURT: Okay. What does that -- how do you

go about determining that?

A. So my day-to-day operations we would receive an

item either for a criminal investigation or for an industry

evaluation, and determine either, yes, this falls under the

GCA or the NFA and make a classification based on that.

THE COURT: Gun Control Act or National Firearms

Act, and you say an item can fall under either of those?

I'm sorry, it was my impression that the Gun Control Act

had replaced the National Firearms Act.

A. No, Your Honor. The Gun Control Act replaced

Federal Firearms Act, the National Firearms Act is still in

effect.

THE COURT: My mistake then, thanks for that

correction. And then so you receive an item, what do you

do then?

A. We examine it. If it's a full firearm like the

assembled AR type firearm, we'll do a safety check and make

sure it's safe, we'll determine how it functions, its

physical characteristics. We'll photograph it, and we'll

evaluate on how it falls under our definitions, both

statutory and regulatory.

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THE COURT: For example, if you were to receive

an AM-15, would your evaluation ascertain whether it had

been altered to fire in automatic mode?

A. An AM-15 like stripped receiver, Your Honor, or

complete firearm?

THE COURT: I'm sorry, the whole thing, the

government -- whatever the government's exhibit is.

A. Absolutely. We would do a function test to

determine how that weapon is firing and whether it's

capable of fully automatic firing.

THE COURT: Okay. And what other sorts of tests

or determinations would you do?

A. In addition to the function test, we'd actually,

if safe, go back and do a live test fire. We have a range

in our office, Your Honor.

THE COURT: Okay. Did you do -- did you do

anything within the line of your ordinary duties, not as an

expert, in line of your ordinary duties, with regard to the

items at issue in this case, the specific items?

A. Yes, Your Honor. I wrote the criminal technical

report on this case.

THE COURT: Okay. Now we get to why you're here.

I understand now, okay, among other reasons.

And counsel, it's not -- you are, once again?

MR. JACOBS: Jonathan Jacobs, sir.

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THE COURT: Mr. Jacobs, of course go ahead.

DIRECT EXAMINATION 

BY MR. JACOBS: 

Q. Yes, Your Honor, thank you. Mr. Hoffman, just a

few more questions about AR-15 and AM-15 specific training

in your background. In your military, did you deal with

those types of weapon systems?

A. Yes, the AR or M-16 as it's known in the

military, it's the primary weapon of all military members.

Q. What's the difference between the M-16 and the AR

type weapon system?

A. The M-16 is capable of fully automatic fire,

three round burst fire, it would be considered a

machinegun.

Q. It operates the same way, though, right?

A. The design and operation is identical.

Q. Okay. And in -- as an FEO -- in your training as

an FEO did you do specific training on AR-15 style rifle or

have references when making those types of classifications?

A. Yes, the AR being probably the most type of

firearm in America, we definitely focused on that. You

mentioned references. We have the national firearms

collection which houses approximately 15,000 firearms.

This would include probably 100 AR different types of

firearms and another 100 or so AR/M-16 type receivers.

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Q. And do you have any expert materials that you

reference as well?

A. We also maintain a library of periodicals and

books, that library consists of approximately 2,000 books

on firearm and firearm-related topics.

Q. I imagine, Mr. Hoffman, your experience involves

many manufacturers of AR-15s?

A. Yes, I've toured many manufacturers of firearms

and ammunition, several of which manufacture AR-type

firearms.

Q. Can you give us some examples or --

A. Yes, I've been to LWRC in Cambridge, Maryland and

up north to Smith & Wesson, Remington and Colt as well.

Q. And they all make an AR-15 style not -- not -- an

AR-15 style weapon?

A. That's correct.

THE COURT: Duplicate -- whatever the name,

whoever the manufacturer, it's, in all significant

respects, a clone, a duplicate, the same thing; is that

correct, or not?

A. Yes, Your Honor.

THE COURT: Go ahead, Mr. Jacobs.

MR. JACOBS: Thank you, Your Honor. 

BY MR. JACOBS: 

Q. As far as your -- you briefly talked about your

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experience with Federal Regulation and the Gun Control Act

and National Firearms Act, what's your experience with

training in those different provisions?

A. During the two year on-boarding process that we

talked about, we do a lot of seminars taught by lawyers,

actually, on not just the regulations under the Gun Control

Act, but also the Congressional hearings behind them, how

we got to where we are today.

Q. And can you give The Court an idea of who -- when

you receive a firearm, as you did in this case, who do you

usually receive it from?

A. We have an evidence room where all of our -- when

a special agent or even another agency needs a

classification, sends it in, we have a firearms evidence

specialist who processes it, and then when a report gets

assigned, like this one got assigned to me, we go and we

check it out. We sign a log book basically saying we're

taking possession of that evidence, and then we return it

to our workstation.

Q. But who are your customers; where do they usually

originate from, just ATF or --

A. Generally we have an ATF work flow number, a U.I.

number it's called, but we also do Homeland Security, FBI,

DEA cases.

Q. Okay. And in this case specifically, you stated

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that you reviewed the AM-15 in this case, and what was your

conclusion in this case?

A. It's the receiver of an AR type firearm.

Q. Okay. I want to walk The Court down why ATF

has -- has said that this is the receiver of an AR type

firearm, and first I think it's important to start with the

AR-15 history. Can you give us an idea of that history?

A. The AR-15, which the assembled weapon was today,

the AR-15 type derived from an AR-10 type, which was the

inventor's original firearm, the military was looking for a

more scaled down weapon, so he reduced the size, him and

two or individuals. He worked for a company called

Armalite, that's where the AR came from, and AR-15.

Armalite got in some financial trouble, sold the rights to

Colt, and Colt kind of made it what it is we know today.

It originally was adopted by the military in 1963 and went

into production in '64. At the same time Colt made a

sporterized version for the --

THE COURT: A what -- what version? What was

the --

A. Sporterized.

THE COURT: Sporterized?

A. That did not have the machinegun function for the

civilian market.

Q. By sporterized, what do you mean by that?

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A. Essentially took away the third position for

automatic fire, removed parts such as the automatic sear.

Q. And Mr. Hoffman, at that time when did that come

commercially, you mentioned it came commercially on the

scene --

A. 1964.

Q. 1964. And at that time did Colt happen to

identify a piece or part as their frame or receiver?

A. They marked their markings with serialized lower.

Q. And that was in 1964?

A. Yes.

Q. Okay. And Mr. Hoffman, how many -- let's go to

today, how many AR-15s are out there today?

A. The National Sports Shooting Foundation, NSFS,

estimated a few years ago anywhere between 5 and

10 million.

Q. Okay. You said 5 and 10 million, okay?

A. Yes, sir.

Q. And how are those -- today how are AR-15 style

firearms identified, marking wise?

A. How or where?

Q. Where are the marks -- I'm sorry, I'll rephrase.

Where are the markings contained on the AR-15

style weapons today?

THE COURT: By markings, do you mean the serial

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number?

BY MR. JACOBS: 

Q. The serial numbers, the manufacturer's markings?

A. They're found on the receiver, the lower

assembly.

Q. Okay. I'd like to talk to you a little bit about

your knowledge of the history of the Gun Control Act

because I think it's directly relevant here to -- to your

classification, and ATF's continued classification of

the -- of the lower receiver of an AR as the firearm frame

or receiver. So what was the Gun Control Act predecessor?

A. The Federal Firearms Act, which was enacted in

1938.

Q. And in -- in that, that predecessor, what -- what

was defined as a firearm, or what was included?

A. I don't know the definition verbatim, but it was

not only a weapon that expelled a projectile but any part

or parts of a firearm.

Q. So any part --

THE COURT: If I may, for example, if -- and I --

my familiarity with what I'm about to say is, you know,

when I was eight years old with a cap gun, okay, but

there's a little plastic part on the handle of the toy

revolver, and that was screwed in, if memory serves, if

that were a real weapon, okay, would that little screw

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that, you know, held the little plastic part of the grip

on, that would constitute a firearm, the screw itself, the

little teeny thing?

A. If it was a live firearm, yes, Your Honor. Yes,

that would have been a firearm under the Federal Firearms

Act.

THE COURT: When they said any part, even

something as -- I thought so, but I -- that came to mind,

just curious. Go ahead.

MR. JACOBS: Thank you, Your Honor.

BY MR. WELDON: 

Q. How many parts are on an AR-15 roughly? I know

you --

A. It would depend on the sighting system, the

barrels. In the lower with the collapsed stock, the last

one I built had 36 components in the lower, I would say

another 20, 25 in the upper, so 50 to 60 perhaps.

Q. What's the smallest part, along the same question

as Your Honor's question here?

A. There are very tiny springs, I'm holding up my

fingers about a quarter inch roll pins, about a quarter to

3/8 of an inch long.

Q. Let's fast forward to the Gun Control Act. What

did the Gun Control Act of 1968 do then as it pertains to

firearms' parts?

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A. As it pertains to firearms' parts, Congress

intentionally replaced parts or parts of a firearm with

frame or receiver.

Q. Do you happen to know, maybe you don't, do you

happen to know why they did that?

A. They felt it was unruly to regulate all those

little individual pieces that could be used in things

outside of firearms as well.

Q. Okay. And so now the current Gun Control Act

definition, as we've heard from the defense, can you,

again, tell us that that includes the current firearm

definition under the Gun Control Act?

A. Under the Gun Control Act, firearm is defined as

any weapon, including a starter gun, which will or is

designed to or may readily be converted to expel a

projectile by the action of an explosive.

The second part is the frame or receiver of any

such weapon.

Q. Okay. That's where we're concerned. So you --

478.11, I'm sorry, where is -- where is the firearm frame

or receiver defined?

A. It's defined in two Code of Federal Regulations,

478.11 and 479.11. 478.11 which supports the Gun Control

Act --

THE COURT: Hold on just a moment, please. What

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was that first number?

A. 478.11, 27 CFR.

THE COURT: Pardon me?

A. 27 CFR, Section 478.11.

THE COURT: Hold on a second, I'm sorry. Okay.

What does this say?

A. As in how does it define frame or receiver?

THE COURT: Yeah.

A. That part which houses the hammer, the bolt, or

breechblock, and the firing mechanism, and which is usually

threaded at its forward portion to receive the barrel.

THE COURT: Okay. Go ahead.

MR. WELDON: 

MR. JACOBS: Thank you, Your Honor. 

BY MR. JACOBS: 

Q. You mentioned 479.11. What regulation is that?

A. That's the regulation for the National Firearms

Act.

Q. Can you give us an idea of what firearms are

covered under the National Firearms Act?

A. That's the Gun Control Act, essentially covers

conventional-type weapons. The National Firearms Act

contains eight specific categories of firearms which

Congress felt were dangerous and unusual. These types of

firearms include machine guns, silencers, destructive

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devices, short barrel weapons.

Q. Is the 478.11 definition the same, definition of

frame or receiver the same?

A. Yes, sir, it is.

Q. Okay. And so the Federal Firearms -- I'm sorry,

the Federal Regulation, or 478.11, you mentioned that

definition, and you -- classify the M-15. What parts does

four -- what parts of the M-15 are also in 478.11, what

elements does that meet?

A. It meets two of the elements under the definition

of receiver. It houses the hammer and firing mechanism.

Q. How many firearms on the market also house all of

those parts, or may not house all of those parts?

THE COURT: That's two different questions.

BY MR. JACOBS: 

Q. Sorry. How many firearms on the market house all

of those parts?

A. It's a, at this point, minority of firearms

currently manufacture that contain all three elements of

the frame or receiver definition.

THE COURT: Let me ask you this, do you -- do you

have an opinion, to a reasonable degree of within your

particular field of expertise, as to the approximate

percentage of all firearms in the United States, whether on

the market or otherwise, contain -- or have a receiver that

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has a housing that has all four of those components?

A. Currently manufactured, my opinion would be

approximately 10 percent. In previous years going all the

way back to '68, that may rise to 20 to 25 percent net.

THE COURT: Okay. Do you know how many firearms

in toto are manufactured within the United States in a

given year, roughly? And if you don't, that's fine.

A. I should know that, Your Honor, but I can't put

my --

THE COURT: Do you know approximately how many

firearms, if I were to take a census of firearms next year

along with everything else?

A. We're well above 150,000,000.

THE COURT: Okay. You may continue, counsel.

MR. JACOBS: And Your Honor --

THE COURT: If we apply your 10 -- so of the

150,000,000, once again, realizing that, you know --

A. I would conservatively say --

THE COURT: It's not statistically accurate, but

based upon your background, training and education, to a

reasonable degree of certainty?

A. I would say --

THE COURT: Conclusive, but not speculation.

A. I would say 100 million of those do not meet the

complete definition of frame or receiver.

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Q. Can you give us --

THE COURT: Counsel, both sides, if there's

further data of that sort, I -- quite candidly I think it's

highly relevant, and the record will be open for you to

refine that -- those figures.

MR. JACOBS: Sure, Your Honor.

THE COURT: Or in terms of annual production and,

you know, as I say the census, as it were, realizing that

the second one will necessarily have an element of

speculation, but nonetheless if you each come up with some

sort of data on that information I think it's pertinent.

Thank you.

MS. JOHNSON: Your Honor, I'm sorry, can you

clarify what you said you wanted additional information on,

did you say annual production?

THE COURT: He -- he basically gave two bits of

testimony, one was whatever the annual production is, it

would be his testimony about 10 percent of those weapons

contain a receiver that contains, would meet the literal --

literal terms of the -- of the regulation at issue here.

He also testified, quote, well above 150,000,000, so let's

deal with 150,000,000 firearms out there, literally able to

somehow go out and take a census, as I understand his

testimony, the head count or the gun count would be

something above 150.

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Second part of my question then in that regard

was, again, to a reasonable degree of certainty, within his

field of expertise, what percentage -- percentage of those,

or how many of those, and he said about 100,000. So in

other words -- about 100,000 would meet the term, another

50,000 or greater number because of prior modes of

production and so forth. That's all. And that may be it.

I'm just saying to both parties if there is somewhat more

precise, somehow derived, and that's fine, you may offer

that as exhibits in your -- in your briefing. That's all.

MS. JOHNSON: Thank you, Your Honor.

THE COURT: Did that answer your question?

MS. JOHNSON: Yes, Your Honor. Thank you.

MR. JACOBS: Thank you, Your Honor.

THE COURT: Go ahead.

BY MR. JACOBS: 

Q. As far as some examples, specific examples of

firearms that do not contain all three parts, can you

provide some of those weapons systems outside of the AR-15?

A. When I look at semi-automatic self loading

pistols, basically handguns that are not revolvers, I can't

think of any that would meet all three elements,

specifically the most important -- lost my words, excuse

me. The Glock is the primary weapon of law enforcement

officers of the country. The Glock does not use a hammer,

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it's a striker fire system, essentially the fire pin is

under spring tension, gets cocked, sear releases it and it

strikes the cartridge. Having no hammer, that would put

all Glock pistols outside of a firearm that met the

definition, and many, many firearms are now cloning or

copying the Glock type of firearm.

THE COURT: And the Glock is, at least from your

testimony, fairly popular?

A. Popular is the word I was looking for.

THE COURT: Pardon me?

A. Popular is the word I was looking for I couldn't

find.

THE COURT: Is it popular in private market?

A. Very, very, Your Honor.

THE COURT: Well, again, if you can testify to a

reasonable degree of certainty, based upon your background,

training, experience and your overall familiarity with the

subject, I'm good to ask, of the handguns, of -- of the

pistols, take out revolvers, okay, but of the pistols, what

percentage are Glocks being most recent production, or your

best estimate to a reasonable degree?

A. I couldn't really ballpark that, Your Honor. At

one point, law enforcement they were almost all --

THE COURT: That's fine, okay. Your answer is

you can't give an answer, and that's fine. Thank you, sir.

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BY MR. JACOBS: 

Q. And so the Glock doesn't contain a hammer at all,

so it's missing one of the elements?

A. Yes, sir, that's correct.

Q. Okay. And so you get a Glock in or you get an

AM-15 receiver in, and you're asked to classify the

receiver, do you look at the regulatory definition at all

in that case?

A. At that point a precedence has been set like the

frame of a Glock pistol, the frame is interchangeable with

the receiver, receiver usually for pistols, has been well

established way before I joined ATF.

Q. Okay. So let's move to the AR-15. You do rely

on precedence. When was the first classification of the

AR-15, AM-15 style firearm by ATF?

A. The oldest letter that I'm aware of that

determined the lower as the receiver of an AR was dated

1972, I believe January 19th.

Q. Okay. And -- and that's been consistent for the

last 50 years?

A. Yes, the lower has always been the receiver of an

AR.

Q. You've never classified the upper as the receiver

at ATF for the AR-15?

A. Not for AR type firearms.

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Q. Okay. And when you -- when you receive a new

receiver, a brand-new receiver, you've never seen that

firearm before or a new firearm model that comes in, do you

even use the firearm frame or receiver definition at this

point?

A. Yes, we refer to it to determine which part best

meets the definition.

Q. Okay. And best meets the definition, can you

give us an example of that?

THE COURT: Can you put a hold -- I apologize for

interrupting because I know you're heading on down the

line. Was it your testimony that the letter of -- 1972

letter classified the lower receiver as a firearm -- I

mean, tell me again what the 1972 letter said.

A. In 1972 someone wrote into the Alcohol, Tobacco

and Firearms unit, which was still part of the IRS, and

said, hey, we have something called an upper receiver and

something called a lower receiver. What is the receiver?

By that point the Gun Control Act was in effect and one

part had to be classified as the receiver. We responded

that the lower was the receiver of the AR type firearm.

MR. JACOBS: Your Honor, I'm sorry, that's

Government's Exhibit 3 in our motion to dismiss brief, our

opposition to the motion to dismiss.

THE COURT: Okay. Thank you. Why do you say

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only one part can be classified as firearm?

A. Under the statutory regulations, 923(i), it

requires a license manufacturer or license importer to mark

the receiver of the weapon.

THE COURT: Okay. Go ahead.

BY MR. WELDON: 

Q. And Mr. Hoffman, along those lines it requires --

do you necessarily see every manufacturer's weapon that

they make?

A. No.

Q. Okay. So someone can make a weapon and not send

it in to you for a determination, correct?

A. Can you clarify, are we talking about licensees

or --

Q. Non-licensees.

A. -- non-licensees?

Q. Yes.

A. Yes, there's no requirement for you them to

submit a sample.

Q. What about licensees, is there a requirement for

them to submit a sample?

A. No, sir.

Q. Okay.

THE COURT: Counsel, I apologize for

interrupting, but do you know -- or perhaps it may or may

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not have any relevance at all -- whether that regulation,

973 -- or the 9731 was adopted before or after the

regulation at issue here, or they've been -- they were

concurrent or --

MR. JACOBS: I'm sorry, 923(i)?

A. 923(i).

MR. JACOBS: 923(i), Your Honor.

THE COURT: Is that statutory?

MR. JACOBS: Yes, that's --

THE COURT: I misunderstood.

MR. JACOBS: 18 U.S.C. 923(i).

THE COURT: Once again, it's a statute, okay.

923(i)?

MR. JACOBS: Yes, sir.

THE COURT: What does it say, best of your

recollection? I think it was testified to by Mr. O'Kelly,

but go ahead and tell --

A. License importers or license manufacturers are

required to conspicuously mark on the frame or receiver of

a firearm a unique serial number.

THE COURT: That's right, okay. Okay, go ahead.

BY MR. WELDON: 

Q. And Mr. Hoffman, there are other markings on the

firearm other than the serial number, correct?

A. Correct, a licensee is required to mark

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manufacturer's name, a model if designated, caliber and

city and state along with the serial number.

Q. And where's that requirement?

A. That's in the Code of Federal Regulations for

478.92.

Q. Okay. And in this case, how long has Colt been

marking -- or I'm sorry, not Colt, how long has the AR-15

been marked on the lower receiver?

A. Even the original prototypes of the ARs were

marked on the lower.

Q. Okay. I want to go back to the question about if

you receive a firearm and it doesn't house all the parts,

you still reference the firearm frame or receiver

definition, correct?

A. Correct. We still utilize it to find the part

that best meets it.

Q. Can you give us an example how you specifically

would utilize that?

A. We look for which part houses the hammer, the

firing mechanism and the bolt, see if there's one part that

has two. It's -- basically we are looking for a critical

part that we can, you know, direct them that this is the

frame or receiver of the weapon, and that's where the

serial number needs to be marked.

Q. But Mr. -- how can you do that? How do you --

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how do you depart from that definition when the three

elements are not met?

A. As part of the preamble to 478.11, it says that

these are the definitions of the terms unless manifestly --

manifestly incompatible. And it would be incompatible,

specifically like with the AR, the upper house is one, the

lower house is two, but Congress continued for a single

part to be the frame or receiver.

Q. Under the Gun Control --

THE COURT: How do you know that?

A. Because they -- Your Honor, they took out any

part or parts in order to control a frame or receiver.

THE COURT: Is that 923 little I, is that where

that's manifested or --

A. I believe that would be in the frame or receiver,

and I'm a little unsure, Your Honor.

THE COURT: Okay. Well, I'll leave it then to

counsel to address that issue.

MR. JACOBS: Your Honor, we cited legislative

history in our brief that indicates that they intended to

mark one part, or intended to regulate one part.

THE COURT: I'm sorry. As I say, I read it a

week or so ago and I've forgot. That's fine.

MR. JACOBS: No problem.

BY MR. WELDON: 

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Q. So Mr. Hoffman, in this case you received AR-15

type lower receiver. In 1971 ATF classified it. Why did

they classify the lower and not the upper?

A. Essentially they were adopting the -- where Colt

had already marked it, there was nothing about the lower

being a receiver that prevented the administration of the

Gun Control Act. It fell within part of the frame or

receiver definition, and we just essentially adopted it.

MR. JACOBS: Okay. Your Honor, one moment to

consult?

THE COURT: Okay.

MR. JACOBS: Your Honor, in response to your

previous question about how many exactly firearms are

manufactured in the United States, we would probably have

to do further research on that.

THE COURT: And that's fine, that's what I'm

saying. The record will remain open for refinement of

that, that statistical data.

MR. JACOBS: Thank you, Your Honor.

THE COURT: And if there's other statistical data

that seems pertinent, quite candid, it seems to me if you

have 100,000 weapons that are not regulated, at least under

Chevron, it seems to me to be -- to be serious, there are

serious problems because you get 2/3 of all firearms that

are not covered by the Gun Control Act or National Firearms

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Act.

MR. JACOBS: Thank you, Your Honor.

THE COURT: Might be news to Congress. Go ahead.

I'm being very candid with you only.

MR. JACOBS: Thank you, Your Honor.

THE COURT: If only 10 percent of the weapons

streaming off the world's production lines coming into this

country being manufactured here, whatever, 10 percent of

weapons manufactured here are regulated, okay, so I do

think that further refinement, to the extent that there is

data out there would be meaningful, at least as I read the

Chevron, and as I say, the problem with looking just at the

regular -- the preamble, there is, I -- I think that the

word thereof refers back to this part. And as I

understand, maybe erroneously, this part means the

regulations themselves. On the other hand, you have cited,

and there may be other aspects of the legislative history

that, you know, make -- or do not make clear, or make

unclear, whether the regulation, the inconsistency, if

there is one, between the defendant's interpretation of the

regulation, and they're entitled to a motion to dismiss

because the lack of regulation of the part that's at issue

here --

MR. JACOBS: Your Honor --

THE COURT: -- is unregulated -- you see where

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I'm going?

MR. JACOBS: Yeah. So, Your Honor, maybe perhaps

to clarify, is --

BY MR. JACOBS: 

Q. Mr. Hoffman, where's the definition of frame or

receiver found, what part of the CFR is that found in?

A. It's in 478.11, meaning and terms, and 479.11,

meaning and terms.

Q. So 478 specifically, right?

A. As it applies to this case, yes, sir.

Q. Okay. And -- and to mark a firearm, where is

that found, what part of the CFR is that found in?

A. Section 478.92.

Q. And do you know where to transfer a firearm,

where that is found in?

A. I'm not sure which section it's found.

Q. That's fine. Mr. Hoffman, I want to ask you one

more question.

THE COURT: In other words, is it the

government's contention that if it has a serial number it

is a firearm?

MR. JACOBS: Not necessarily, Your Honor.

THE COURT: I just -- I'm not -- I don't have the

terms, the latter statute in front of me, so --

MR. JACOBS: Okay.

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THE COURT: It says what it says about where you

mark the firearm. Go ahead.

BY MR. WELDON: 

Q. Mr. Hoffman, what did you do with the specific

firearm when it was received in your examination?

THE COURT: I am very sorry, but, again, reask

the question. Is your answer not necessarily to my

question about the regulation informing the manufacturing

where to mark the firearm, not necessarily because it may

be marked, as we had testimony from Mr. O'Kelly, in a

number of places may bear the same marking, is that --

MR. JACOBS: I'm sorry, Your Honor, can you

repeat that? I'm not sure I understood.

THE COURT: My question was -- my first question

was, oh, if it bears the marking, is it -- if a particular

component bears the marking, i.e. the serial number, is

that ipso facto a firearm? And you said not necessarily.

So then I'm simply trying to understand your not

necessarily response. Simply is it not necessarily a

firearm, a component bearing a marking because some

manufacturers may repeat the serial number elsewhere on the

weapon?

MR. JACOBS: Precisely, Your Honor. Some

manufacturers may put -- sometimes this is actually for

tracing processes. For example, Glock will place it on the

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frame or receiver, and also place it on other places on the

firearm for when it's obliterated, but our -- that the --

that the manufacturer themselves, as in this scenario with

the AR-15, identified that frame or receiver part as the

frame or receiver. ATF accepted it in 1971. They put the

serial number, the manufacturer's markings on them, and

they've been sold for 50 years like that. And it's not

necessary -- ATF is not in the business of if a

manufacturer submits a firearm to ATF to look at it and say

that -- that can't be the firearm frame or receiver, we

will examine it, determine whether it meets the definition

and it's compatible with the Gun Control Act.

BY MR. JACOBS: 

Q. Mr. Hoffman, just to conclude what you did with

this firearm specifically, when you received this AM-15

receiver, what did you do with it?

A. As part of my examination, I took the first

receiver I had, and I actually assembled it into a complete

firearm to demonstrate it was the receiver of that firearm.

I utilized a completed upper to save time, and assembled

the firearm.

Q. And it worked, you assembled it completely?

A. Yeah, it was a fully functional AR type firearm.

Q. At that point it meets the definition under

subpart A?

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A. Correct, yes, sir.

MR. JACOBS: No further questions, Your Honor.

THE COURT: You want a moment?

MS. JOHNSON: No, Your Honor. Thank you. I

appreciate it.

CROSS-EXAMINATION 

BY MS. JOHNSON: 

Q. Good afternoon.

A. Good afternoon, ma'am.

Q. I'd like to first thank you for your service to

our country. Your vita, which you have an exhibit book in

front of you, I think that we have it labeled as

Defendant's Exhibit C, 1 through 4. Can you identify that

document?

A. Yes, ma'am. That's my curriculum vitae or CV.

Q. And it reflects that military service from 1995

to 2008; is that correct?

A. Yes, ma'am, that was my years in the military.

Q. And did you receive much of your training,

whether it was on-the-job training regarding weapons while

you were in the military?

A. Yes, ma'am.

Q. Because I notice that in your vitae you don't

have the dates or the years that you receive the training.

I think on Page C-2, you specify the training you received

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from ATF; is that correct?

A. Yes, ma'am. The military experience, which is 2,

goes into 3, I discussed my job as a small arms repairman,

there's no date on that, yes, ma'am.

Q. So you've actually only been an ATF agent for the

last three years since 2016?

A. It will be -- yes, ma'am, it will be four in

January.

Q. And I believe that you said that while an ATF

agent, that you provided technical guidance. Do you

actually go out into the field?

A. Yes, ma'am.

Q. And you also evaluate, for classification,

weapons, correct?

A. Yes, ma'am.

Q. Now, included in your training, you indicated

that you attended the new professional ATF National Academy

in Glynco, what year was that?

A. Where is that listed, ma'am?

Q. Well, let's see, I have it in my notes, so I --

THE COURT: Ms. Johnson, if it is your point

you're about -- you are reaching is that Mr. -- Mr. O'Kelly

would appear to have an education, training, experience

that extends over a longer period, more substantive than

its scope and breadth, that's fine. I think I can read

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both CVs and take that into account.

MS. JOHNSON: Thank you, Your Honor.

BY MS. JOHNSON: 

Q. Do you recall whether our expert, Daniel O'Kelly,

may have been one of your instructors?

A. Ma'am, I didn't -- I didn't attend Glynco, that's

not in my CV.

Q. Oh, I'm sorry, the entry operations investigative

basic course, is that one of the courses --

A. That's part of Mr. O'Kelly's CV.

Q. Okay. I'm sorry. You also included the fact

that you received manufacturing and historical instruction

at the following firearms factories. During what time

frame would you have gone to actually visit some of the

factories that you set forth?

A. All of the factories listed there were during my

time with ATF, ma'am.

Q. Was that sponsored by the manufacturer or by ATF?

A. It was part of our advanced interstate Nexus

tour, it was sponsored by ATF.

Q. And were the lecturers employees of ATF, or were

they from the manufacturer?

A. No, the manufacturer actually gave us essentially

a guided tour of their manufacturer process.

Q. And so the historical instruction that you

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received, that would have come from the ATF?

A. Not there, ma'am. That actually, like, for

instance, when we went to Smith & Wesson we were taught the

entire history of the company by someone from Smith &

Wesson.

Q. So it's actually the firearms industry that

provides some of your background and training?

A. Absolutely, part of our training, ma'am.

Q. And that's sanctioned by the ATF?

A. Yes, ma'am.

Q. Now, during the investigation of my client,

Mr. Robison, did you confirm that the co-defendant, Richard

Rowold actually purchased the packet of 50 stripped

receivers?

A. That's completely out of my realm, ma'am.

MR. JACOBS: Objection, Your Honor.

BY MS. JOHNSON: 

Q. That was not a part of your investigation?

A. No, ma'am.

MR. JACOBS: That's not relevant to his --

THE COURT: I would agree. I would agree. And

that -- that certainly is the government allegation, but I

think he would have to form that based upon, you know,

information obtained otherwise, which, of course, acquired

by law enforcement so it can be taken into account and

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testified to, but go ahead.

MS. JOHNSON: Thank you, Your Honor.

THE COURT: Is it your understanding that the

government has alleged that the co-defendant was the actual

purchaser of the lower receiver?

A. Your Honor, I read the ROI, that's the case

agent. My job completely is classification.

THE COURT: And, Ms. Johnson, you said purchased

the receiver, I assume you meant to include the adjective

lower receiver, correct?

MS. JOHNSON: Yes, Your Honor.

THE COURT: Okay.

BY MS. JOHNSON: 

Q. Well, following up with that, you testified that

you, to save time, tested one receiver, there were 50, is

that correct, were you aware of that?

A. There were 15 that were submitted for

classification.

Q. So only 15 were submitted, did you test each one

of those?

A. I examined each one of those, I assembled one.

Q. And according to your report, having assembled

it, you said that -- and we can turn to Government's

Exhibit 1, it's not in that book.

THE COURT: Do I have a copy of those up here?

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MS. JOHNSON: Thank you.

BY MS. JOHNSON: 

Q. I'm going to hand you Government's Exhibit 1 if

you can identify it.

A. Government Exhibit 1 is the technical report I

wrote on the 15 exhibits I examined.

Q. And so on Page 2 of that report, you identified

that you test fired and assembled the firearm using --

utilizing Exhibit 21; is that correct?

A. Yes, ma'am.

Q. And then you listed Exhibits 25 through 38 each

consist of one AR type receiver manufactured by Anderson

Manufacturing?

A. Yes, ma'am.

Q. And the last sentence of that paragraph says

because they are identical I did not assemble and test fire

them; is that correct?

A. Yes, ma'am.

Q. So you simply -- I believe that there are

photographs, you simply examined each of the receivers, or

what's described as the lower receiver, and what is it that

you were looking for on each one?

A. Just to make sure it was the same as Exhibit 21

that I did assemble. The only difference being the serial

number in each exhibit.

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Q. You say the only difference is a serial number,

but you don't know if each one of them would actually

testify fire; is that correct?

A. It's my professional opinion they would.

Q. Based on the fact that you said that they were

all identical?

A. Yes, ma'am.

Q. Is it your testimony that none of these could

fail?

A. A lower really never does fail, the stress point

would be in the upper, in the barrel extension.

Q. Is it your testimony that they never fail?

A. It's a possibility, a receiver extension could

crack.

Q. Thank you. Now, turning to the letter which is

attached, which you don't have a copy of, a copy that was

attached to the government's response in opposition to the

defendant's motion to dismiss, you referred to the letter

from, I think you said it was 1972 when lower receivers

were first identified as firearms.

A. That's the earliest letter I'm aware of, yes,

ma'am.

Q. And in that letter specifically, the letter comes

from manufacturer, and it's sent to the ATF, correct?

A. Correct, a manufacturer is able to write in to us

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to ask for guidance.

Q. And yet in the response from the government, this

particular letter says this office has determined that for

the purposes of marking and control, the lower receiver is

the receiver of the firearm. It doesn't say specifically

that a receiver is a firearm --

A. No, ma'am.

Q. -- in this particular letter? And the definition

of a receiver, according to ATF, doesn't match the CFR,

does it, in terms of the components?

A. The definition is in the CFR, are you asking if

it matches the AR?

Q. Yes.

A. No, ma'am, it does not.

Q. Thank you. Actually, in your testimony you were

talking about ATF, ATF can't determine specifically what

the classifications are, can it?

A. Yes, ma'am, we can.

Q. Well, when they do that, they have to follow the

law, don't they?

A. Yes, ma'am.

Q. Isn't as if they can simply change the law?

A. No, we have no authority to change law, that's

legislative branch.

Q. That's right. So when The Court was asking the

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question about the serial number, the fact that the serial

number is placed on the lower receiver doesn't make it a

firearm, would you agree?

A. Placing any marking on a part doesn't necessarily

make it something else.

Q. Thank you.

MS. JOHNSON: May I have just a moment, Your

Honor?

THE COURT: Absolutely. Yep. 

MS. JOHNSON: I have no further questions at this

time, Your Honor. Thank you.

THE COURT: Mr. Kurt? Sure, of course.

FURTHER CROSS-EXAMINATION 

BY MR. KURT: 

Q. Sir, in your work with the ATF, have you, at any

time, been involved in the drafting of regulations?

A. Regulation --

Q. CFR regulations?

A. Can you clarify, sir, what you're asking?

Q. Have you had any involvement in the drafting of

what we call the CFR, the regulations?

A. Oh, no, sir, I have not.

Q. And what is the purpose of the requirements of

serialization of parts?

A. It's for tracing purposes, sir.

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Q. Okay. It's not there to identify a particular

part as a weapon or is not a weapon?

A. No, sir, it's for tracing purposes.

Q. Thank you. If we were to talk about the upper

receiver of an AR-15 and the lower receiver of an AR-15, is

either one more lethal than the other?

A. Not particularly, sir.

Q. There's no lethality until all the parts are

together, isn't that correct?

A. Right. I think Mr. O'Kelly may have pointed out,

it is possible by taking a rod and a hammer to strike the

firing pin on an upper, but you would have a dangerous

situation because there's nothing really to contain the

explosion, but --

Q. That's certainly not the case with the lower?

A. Correct, sir.

Q. All right. And there was some discussion of, I

think it's Government's Exhibit -- the letter from the

manufacturer asking for clarification?

A. Yes, sir.

Q. Okay. Are you aware of any other documents post

that which talk about this -- this problem of conflict

between CFR definition and what the ATF wants to call a

firearm?

A. I'm sorry, sir, were you referring to the '72

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letter that I mentioned, or the '71 letter that Mr. O'Kelly

mentioned?

Q. I think I'm referring to the '72 letter first

that you mentioned, which was the request for guidance,

correct?

A. Correct, sir. There was no -- it just asked is

the lower receiver or upper receiver, it didn't talk about

the definition of frame or receiver. I believe the '71

letter was the one that may have mentioned that, I've never

seen that letter.

Q. Okay. But you're aware of it?

A. Only from hearing it in court. I've never, like

I said, examined that.

Q. Okay. Thank you.

A. Yes, sir.

THE COURT: Okay. Mr. Jacobs, any --

MR. JACOBS: One question, Your Honor.

THE COURT: If I were to charge you a dollar for

every question it would be beyond the --

REDIRECT EXAMINATION 

BY MR. JACOBS: 

Q. Quickly, Mr. Hoffman, did you examine every one

of these AM-15 receivers?

A. Yes, sir, I did.

Q. And in your expert opinion, is every AM-15

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receiver the frame or receiver of a firearm?

A. Yes, sir, it was.

Q. Thank you.

THE COURT: Okay. Further -- Mr. Kurt, further

re-cross?

MR. KURT: No, Your Honor.

THE COURT: Okay. Mr. Hoffman, you're free to go

or welcome to stay. It's entirely up to you.

A. Thank you, Your Honor.

THE COURT: Okay. Further witnesses -- or I

assume the government offers exhibits?

MR. VANN: Yes, Your Honor, at this time --

THE COURT: Except for the actual, you know,

weapon itself.

MR. VANN: We would offer the introduction of 2,

3 and 4. Of course we will maintain custody of those based

on the nature that they're firearms.

THE COURT: And then whatever's in the binder,

you offer those too?

MR. VANN: I don't think -- we don't have a

binder, Your Honor. That was -- the binder, I believe,

was --

THE COURT: That's right. And this was the only

one here.

MR. VANN: And Government's Exhibit 1 we didn't

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intend to offer into evidence, I don't know if defense

counsel wanted that.

THE COURT: Do you care one way or the other?

MS. CAHOON: Yes, Your Honor, we would like to

admit Government's Exhibit 1.

THE COURT: I think it should be part of the

record. It was testified to, and in case Melissa or I want

to refer to it while we work on the opinion, it's there.

MR. VANN: Yes, Your Honor.

THE COURT: No further evidence. We'll confine

our examination into whatever he covered in his testimony,

though. Okay.

MR. VANN: Thank you, Your Honor. No further

witnesses.

THE COURT: Okay. Anything further by way of

witnesses for this morning or this afternoon?

MS. JOHNSON: No, Your Honor, but we want the

record to be complete. We did have -- Defendant's Exhibit

C was just identified by Agent Hoffman, and that was his

CV.

THE COURT: Okay.

MS. JOHNSON: That was the only one we had not

requested submission.

THE COURT: I thought I meant to simply admit

everything that was in the book. Do you want to recall

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Mr. O'Kelly for any purpose? 

MS. CAHOON: Not at this time, Your Honor. Thank

you.

THE COURT: This is the time, okay. Unless maybe

at trial, I understand. Okay. Mr. Vann, what -- let me

ask you this, let's start with Angela.

(A brief discussion was had off the record.)

THE COURT: Why don't I give you -- is two weeks

enough, or do you want more time? I mean, basically what I

would suggest is simply starting from scratch in light of

the testimony. I mean, obviously you can cut and paste. I

don't want simply supplemental briefing in light of

hearing, I would much rather have one document. 

MR. VANN: Just to clarify, Your Honor, two weeks

after we receive the transcript?

THE COURT: Absolutely.

MR. VANN: That's plenty of time, yes. 

MS. CAHOON: Yes. Is it this court's intention

to have simultaneous briefing, Your Honor, because our

preference would be to --

THE COURT: No, if you would prefer then to -- to

do it the way I customarily do it, that's fine with me. In

fact, that's probably preferable. So why don't I say that

the movants, the defendants, shall file their -- let's call

it a substitute brief, okay?

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MS. CAHOON: Certainly.

THE COURT: A lot I've already read, doesn't

matter, I don't want to be shifting back and forth, it's

quite inconvenient. And then two weeks after that for

the --

MR. VANN: Yes, Your Honor.

THE COURT: -- reply?

MR. VANN: That's fine.

THE COURT: And then ten days after that for

the --

MS. CAHOON: Depending on the dates, Your Honor.

THE COURT: Let's make it two weeks because ten

days equals two weeks.

MS. CAHOON: Two weeks from the generation of the

transcript, Your Honor?

THE COURT: No, no. Two weeks after you get the

transcript, file your brief, they'll file their reply two

weeks after that, and if you want up to two weeks after

that to file your reply, that's fine.

MS. CAHOON: I'm sure we can make that work.

Thank you, Your Honor.

THE COURT: Pardon?

MS. CAHOON: That's fine. Thank you so much.

THE COURT: So anything further?

MR. VANN: Not from the government, Your Honor.

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THE COURT: Okay. For the defendants?

MR. KURT: Your Honor, you had mentioned earlier

concern with Mr. Rowold's custody status?

THE COURT: Pardon.

MR. KURT: You mentioned some concern with

Mr. Rowold's status in custody while all this is going on?

THE COURT: Why don't we approach on that, that

way everyone else can leave. Thank you, folks, very

interesting case, and we will see what we decide. Candidly

this, undoubtedly, is a case in which I'm going to be

writing a third brief for the Court of Appeals, I

understand that, regardless of the outcome. That's fine.

Happens from time to time. Very well. Thank you. Very

well argued and extremely interesting case. Thank you.

Tom and Tom, come on up.

(A side bar conference was had on the

record.)

THE COURT: We probably talked about this before,

but, you know, did I ask you about how come he's in?

What's the issue?

MR. WELDON: You held a hearing actually on that

after Judge Knepp detained him.

MR. KURT: I tried twice.

MR. WELDON: Well, there's a couple issues.

Number one, didn't have any suitable custodians. Second

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one was he was on supervision to you and violated, that was

the big one.

MR. KURT: We would -- I'll be honest -- this is

a little off the wall, maybe it would be work, he wonders

if he could be --

THE COURT: Let me say as I tell other people, if

you look at the position in the portraits up there, judge

in the middle -- Judge Potter little to the right, Judge

Katz to the left, Judge Walinski further to the right, I'm

the far left, and I'm actually more or less positioned --

actually, my first office where Vern Armstrong had her

office, north that corner of the building that is where in

the old Toledo Municipal park of what I have a park left

field is located, so I'm right at home, Tom, go ahead.

MR. KURT: Anyway, his idea is to be --

THE COURT: As a side, I've got that tie, and

that tie. 

MR. WELDON: Good taste, Judge. 

MR. KURT: He be admitted to a nursing home, he'd

be a good candidate.

THE COURT: The trouble is -- well, okay, yeah,

go ahead. What are those problems, what would be the -- 

MR. KURT: He's diabetic, he's got some kind of

heart condition, he's got high --

THE COURT: How old of a man? 

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MR. KURT: I think he's 72.

THE COURT: How much? 

MR. KURT: 72, Judge.

THE COURT: Tom, work it up, work it out, okay.

And, you know, I'm obviously a bit worried about risk of

flight, but I'd like to know about his resources,

background. If he's got a trust fund that he's living off

of, that's one thing. 

MR. KURT: Social Security and pension.

THE COURT: The simple truth, I'll be very honest

with you, risk of flight is -- it's not based on failures

to appear, okay, that doesn't matter. Abscond -- so many

of our defendants they haven't got the money to go up to

Detroit. So seriously, Tom, I may have not been quite that

blunt before, the violence or other kinds of misbehaving,

and if he's in a nursing home and -- 

MR. KURT: At least we know where he is.

THE COURT: And you put it together, present it

to Tom, present it to Jordan or Cheryce, and I'll take it

into consideration. 

MR. KURT: All right.

THE COURT: Is he at CCNO? 

MR. KURT: CCNO.

THE COURT: I assume, doesn't really matter in

terms of accommodations, but I would hope little better up

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there. 

MR. KURT: I would think so, that would be my

preference.

THE COURT: That will also give you a little

closer access. I wish I hadn't let people go, are they all

here?

MR. WELDON: Everyone's still here.

THE COURT: Counsel, actually there are a couple

things I'd like to say. Have a seat for a moment. I'm

sorry.

(Side bar concluded.)

THE COURT: I think I've made these -- this,

again, those of you in front of me know this is sort of

customary, and I don't know why I didn't think of it. Just

to give you my -- my thoughts to which you make -- wish to

address, and I think they're pretty much contained, at

least in the essence of what I said at the outset.

Although I got the impression from the testimony that

within the regulations there may be some inconsistency,

that may be mistaken. But if there is an inconsistency

between one regulation that's at issue and another one,

then it seems to me that it would be, quote, inconsistent

with this part if that's what the thereof in the preamble

says. In other words, if -- and I think will take and then

back to the -- to the statute.

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In any event, I do think that I would suggest

that you focus perhaps more -- or maybe you're content

with, but I do think that the Chevron standard may be

certainly as important, and I'm getting a bit confused. Is

it in the regular -- does the regulation -- the preamble to

the regulation say incompatible with this part? One says

incompatible, other one says inconsistent.

MR. VANN: Your Honor, it says where not

otherwise distinctly expressed or manifestly incompatible

with the intent thereof, intent in the statute.

THE COURT: Intent -- of the part -- I think

there's some suggestion or some thought maybe where thereof

refers to the statute, but as a matter of grammar, if you

look for the related antecedent, the only thing within that

sentence is part, so -- so, once again, recite that for me.

MR. VANN: Where not otherwise distinctly

expressed or manifestly incompatible with the intent

thereof, and it -- the --

THE COURT: Okay.

MR. VANN: The beginning of this says when used

in this part and in forms prescribed under this part, where

not otherwise distinctly expressed or manifestly

incompatible with the intent thereof.

THE COURT: And, again, this is a grammatical

issue, but I think manifest -- or in -- again, I'm sorry,

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inconsistent with the intent or contrary to the intent?

MR. VANN: Manifestly incompatible with the

intent.

THE COURT: Or --

MR. VANN: -- with the intent thereof.

THE COURT: I'm very sorry.

MR. VANN: That's all right, Your Honor.

THE COURT: Read it slowly for me.

MR. VANN: It says when used in this part and in

forms prescribed under this part, where not otherwise

distinctly expressed or manifestly incompatible with the

intent thereof.

THE COURT: See, now, again, I think the thereof

refers with the intent thereof, the intent of this part.

However, where distinctly expressed, I think you might want

to address whether that relates back to, or refers to the

statute itself; therefore, whether or not simply leaving

the statute alone is sufficiently distinct expression given

the meaning otherwise applied to the term receiver that

would inform someone attempting to determine whether this

item was a receiver or not, but that individual could look

to determine that yes or no. But as I said on the Chevron,

actually have it in here, have to give me a minute, please.

Do any of you have that at hand? It's in my notes, but --

wait a minute, hold on a second. The Court said when a

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Court reviews an agency's construction of the statute

which --

MR. WELDON: Your Honor, may I -- this is

Mr. Weldon, Your Honor. This contained -- you're citing to

Chevron, and the government makes reference to this

particular case on Page 12 of its response, which is what's

filed on March 26th, it's document 41. And the quote, if

you're looking for it, is if Congress has explicitly left a

gap for the agency to fill, there is an express delegation

of authority to the agency to elucidate a specific

provision of the statute by regulation. Such legislative

regulations are given controlling weight unless they are

arbitrary, capricious, or manifestly contrary to statute.

And that's at Pages 843 to 844.

THE COURT: It also says -- Melissa, can you read

that? 

MS. DYBALA: Chevron says when a Court reviews an

agency construction of the statute which it administers, it

is confronted with two questions: First always is the

question whether Congress has directly spoken to the

precise question at issue. If the intent of Congress is

clear, then it ends -- then it's the end of the matter

before The Court as well as the agency.

THE COURT: And then the second paragraph? 

MS. DYBALA: And then must give affect to the

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unambiguously express intent of Congress.

THE COURT: That aspect, both parts of that test,

you know, whether it was the intent of Congress -- and,

quite candidly, the intent of Congress, seems to me, was to

regulate the availability and use of firearms or weapons

within the firearm category. And my question is, and I'm

sure we'll all be digging further in legislative history

and so forth, but I think that intent is indisputable. And

under that test, under Chevron, and I may misread it,

misunderstand it entirely, that's fine. I want to

emphasize, as I sit here today, the important of the

Chevron holding and doctrine, and also the extent to which

some, or at least I will have to acknowledge of the way the

acceptable trend about that doctrine and its influence upon

how we, as Courts, interpret agency regulations. I'll be

very candid with you, it seems to me that if that -- that

if the regulation, which is not the law, the law is the

statute. Legislation is intended to, quote, fill a gap,

something that's missing, something without which statute

makes no sense at all and cannot be understood as that term

is meant under the due process clause. And a regulation

that leaves, you know, 10 percent of the weapons streaming

off of American gun manufacturer line, assembly lines,

however many that number is, I don't see how that can be

upheld to be quite candid. In light of what, again, I

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understand to be uninformed understanding, not having done

really anything except having Melissa do a little bit

beyond what was contained in the briefs about the interplay

between congressional intent and using the terms that it

does and legislative, you know, commentary enhancement

clarification of thereof. And likewise, if we have, you

know, and I realize that is borderline speculative, but

it's fair to say that there's lots of firearms out there

that have been manufactured over the years and lots of

assault rifles since the assault rifle ban, and if none of

that is subject to the Gun Control Act, how can that

possibly square with legislative history and purpose of

this statute? That would be ridiculous. I'm sorry to be

so emphatic, but that's the argument you have to -- that's

the position you have to address. And if it's a misreading

of Chevron, by all means lay that out. And the same with

regard to the statute, any inconsistency within the

regulation, any internal inconsistency between one

regulation and another, that may not have been the gist of

the import of the testimony or the testimony itself, and

also, you know, what does it mean to be manifestly

incompatible with thereof. And once again, it would be

more clear, so much else would be if the manifest

incompatibility were the statute or the Congressional

purpose in enacting the statute, but I don't think that's

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what that means. The government may well want to argue

that no, no, Judge, that's the way to read the preamble,

okay. And those are the comments I wanted to make. 

And again, let me say this also, if you find

yourself constrained by the time limits, I know you're all

very busy, all of us are confronted with a truly

overwhelming increase in the criminal dockets in -- in this

court in particular. I understand you've just hired two

more AUSAs, and at least seems to me that criminal case

load, I know seems that way to my staff and fellow judges,

is truly burgeoning, or at least it's expanding

significantly, all of which to say here you have all got a

lot to do coming in the door tomorrow, next week and so

forth. If you find yourself needing some more time, simply

reach out to each other and send a brief request to that --

in that regard to Deanna. She'll let me know, and I will

gladly give it to you, because, you know, perhaps I'm

exaggerating, but somehow these two weeks I've got cases, a

couple Lake Erie cases and now this case both being heard

by me this week that I perceive as being the kind of case

that require truly extensive effort regardless of lengthy

opinion. But my best efforts to try to get it right, and

the likelihood in both of these cases, I will be, as I say,

the third brief in the Court of Appeals, and like anybody

else who goes down to the Court of Appeals, I like to win.

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So give it your best, I'm sure you will, and I look forward

to the briefing and then to the challenge of resolving this

dispute and moving on from there. Thank you all very much.

Greatly appreciate it.

 - - - 

C E R T I F I C A T E 

I certify that the foregoing is a correct transcript 

from the record of proceedings in the above-entitled matter. 

s:/Angela D. Nixon October 17, 2019 

--------------------------- ----------- 

Angela D. Nixon, RMR, CRR Date 

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***AMENDED 7/30/20***

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

 

Now before the Court are Roh’s post trial motions. He moves for acquittal under

Rule 29 of the Federal Rules of Criminal Procedure and for dismissal on grounds on

unconstitutional vagueness. (Docket Nos. 124, 139.) The Government has filed an opposition

(Docket No. 132), and Roh has replied (Docket No 137). 

For the reasons set forth below, the Court grants in part and denies in part the

Motion.

I. The Indictment.

The single-count Indictment charges that Roh “not being licensed as an importer,

manufacturer, or dealer in firearms, willfully engaged in the business or manufacturing and

dealing firearms, to wit, hundreds of AR-15-type lower receivers, completed pistols, and

completed rifles” in violation of 18 U.S.C. § 922(a)(1)(A). (Docket No. 1.) The Indictment

tracks the language of the statute:

It shall be unlawful--

(1) for any person--

(A) except a licensed importer, licensed manufacturer, or licensed dealer, to

engage in the business of importing, manufacturing, or dealing in firearms,

or in the course of such business to ship, transport, or receive any firearm in

interstate. or foreign commerce; 

 (18 U.S.C. § 922(a)(1)(A).)

The term “firearm” is defined by statute and further defined by regulations issued

by the Bureau of Alcohol, Tobacco, and Firearms. The statute provides:

The term “firearm” means (A) any weapon (including a starter gun) which will or

is designed to or may readily be converted to expel a projectile by the action of an

explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler

or firearm silencer; or (D) any destructive device. Such term does not include an

antique firearm.

(18 U.S.C. § 921(a)(3); emphasis supplied.) The regulations define a receiver:

Firearm frame or receiver. That part of a firearm which provides housing for the

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hammer, bolt or breechblock, and firing mechanism, and which is usually threaded

at its forward portion to receive the barrel.

(27 C.F.R. § 478.11.)

The core dispute here is whether an unfinished AR-15 receiver constitutes a

firearm under the statute and regulations.

II. Legal Standards.

Rule 29 of the Federal Rules of Criminal Procedure provides in part: “After the

government closes its evidence or after the close of all the evidence, the court on the

defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is

insufficient to sustain a conviction.” (Fed. R. Crim. P. 29(a).) On a Rule 29 motion, “The

court, after viewing the evidence in the light most favorably to the government, must determine

whether the jury could reasonably find the defendant guilty beyond a reasonable doubt.” United

States v. Bernhardt, 840 F.2d 1441, 1448 (9th Cir. 1988).

Criminal statutes must give fair notice of their scope: 

It is a basic principle of due process that an enactment is void for vagueness if its

prohibitions are not clearly defined. Vague laws offend several important values.

First, because we assume that man is free to steer between lawful and unlawful

conduct, we insist that laws give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may act accordingly. Vague

laws may trap the innocent by not providing fair warning. Second, if arbitrary and

discriminatory enforcement is to be prevented, laws must provide explicit

standards for those who apply them.

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (emphasis supplied). More stringent

standards are applied where the vagueness challenge involves a criminal statute or the exercise

of constitutional rights. Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S.

489, 498-99 (1982); McCormack v. Herzon, 788 F.3d 1017, 1031(9th Cir. 2015). 

III. Discussion.

Roh operated Rogh Industries, a machine shop which catered to gun enthusiasts. 

Part of his operation consisted in manufacturing AR-15 semi-automatic assault rifles. One of

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the steps is the manufacture of a receiver. Rather than initiating the process of machining a

receiver, Roh had his customers push a button on the milling machine which initiated the

process. But for that one step, Roh performed all of the steps in manufacturing completed AR15s. 

The correspondence and testimony establish that Roh was informed of ATF’s

position that his operations, including the manufacture of finished receivers, constituted

unlicensed manufacture of firearms. In response to correspondence from Roh, the AFT

examined samples of machined AR-15 parts and advised that they were not “classified as a

‘firearm.” (Ex. 132.) A year later, the ATF wrote with regard to receivers that they would be

“classified by our Branch as a ‘firearm.’” (Ex. 134, p. 4.)1

 On December 23, 2013, the ATF

sent Roh a cease and desist letter informing him that his operations constituted the illegal

unlicensed manufacture of firearms. (Ex. 126.) Roh signed a written acknowledgment of the

notice. (Id., p. 2.)

There is no dispute that Roh does not have a license for firearms manufacturing.

The Government has two theories: Roh’s manufacturing of receivers violated the

statute, and separately Roh sold firearms. The Court deal with each theory.

A. Receivers.

The definition of receiver under the ATF regulations requires four component: a

“housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually

threaded at its forward portion to receive the barrel.” (27 C.F.R. § 478.11; emphasis supplied.) 

The evidence at trial was uncontroverted that a finished AR-15 receiver does not contain a bolt

or breechblock and is not threaded to receive the barrel. (E.g., Tr. Feb. 21, 2018, pp. 111-13

(Jackson); Tr. Feb. 24, 2018, pp. 65-67 (Hoffman).) Indeed, the Government concedes the

point in its opposition. (Opposition, p. 23.) The plain conclusion is that the finished receiver is

not a firearm.

The Government’s theory of conviction rests on proposition that the AFT had

“classified” finished receivers as firearms, notwithstanding the conflict with the definition

published by the ATF in its regulations. Examination of Government expert Daniel Hoffman

revealed that there is no “objective classification scheme or system in place.” (Tr. Feb. 24,

1

There is a dispute as to whether this letter was ever sent and received. (See Tr. ) For present purposes, the Court finds that

Roh was on notice that the ATF “classified” finished receivers as “firearms.”

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2018, p. 44.) ATF personnel simply make a determination in response to individual inquiries.

(Id.) Usually, there is no consultation with ATF counsel. (Id., p. 50.) More significant for

present purposes is that there is no way for the public to learn the particulars of the

classification system. (Id., pp. 44-45, 55.) The only way a person can learn of an AFT

classification is to make direct contact with the AFT. (Id., pp. 48-49, 55-56.)

It is clear that the ATF’s classification of articles as firearm does not comply with

the rule making process which brought into effect the public definition for firearm found in

Section 478.11. The rule making process under Administrative Procedures Act, 5 U.S.C. § 551,

requires promulgation of a rule and eventual publication of the rule in the Federal Register. 5

U.S.C. § 552(a).

United States v. Picciotto, 875 F.2d 345 (D.C. Cir. 1989), illustrates the flaw in

seeking criminal prosecution on the basis of an unpublished classification. There the Park

Service had adopted regulations, but informally added “additional conditions.” The defendant

was prosecuted for violating one of those conditions. The Court rejected the prosecution: 

A rule which is subject to the APA’s procedural requirements, but was adopted

without them, is invalid. Certainly, a criminal prosecution founded on an agency

rule should be held to the strict letter of the APA.

(Id. at 346; internal citation deleted.) Other circuits have similarly recognized that criminal

liability cannot be imposed where the agency has failed to comply with APA’s procedures, and

therefore had not given fair notice. United States v. Cain, 583 F.3d 408, 420, 422-23 (6th Cir.

2009) (sex offender regulations); United States v. Reynolds, 710 F.3d 498 (3d Cir 2013)

(same); United States v. Valverde, 628 F.3d 1159, 1168-69 (9th Cir. 2010).

The Government would distinguish Picciotto on the ground that the Park Service

had in fact made a substantive change. (Opposition, pp. 23-35.) But that is the point: By

deleting certain requirements for a receiver, the AFT made a substantive change in the

regulation.

The Government contends that Roh knew that AR-15 lower receivers constituted

“receivers.” (Id., pp. 36-38.) He certainly knew through correspondence with the AFT and

visits that it was the ATF’s position that the lower receiver were “receivers.” But his

knowledge of the AFT’s position does not give ATF’s unsupported position the force of law. 

Significantly, in its discussion of Roh’s knowledge it cites neither case law nor statutory

authority.

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The Court rejects the Government’s position here with respect to receiver as a mere

and permissible interpretation. (Opposition, p. 31.) There is not simply tension between the

Government’s position and Section 478.11; there is a disconnect. (See id., p. 32.) The

Government counters with Cabais v. Egger, 690 F.2d 234, 238 (D.C. Cir. 1982), for the

proposition that a position may nevertheless be a valid interpretation even if it contradicts the

statute. But there is a qualifier: The interpretation must reasonable. (Id. at 238 n.10, 239.) In

fact, the D.C. Circuit rejected the the Labor Department’s interpretation of the statute in Cabais

where it its interpretation imposed on the states a formula for determining individual pension

contribution not found in the statute. Here, the converse is true: ATF is reading out of the

regulation express requirements for a receiver. That is not reasonable.2

In United States v. Evans, 712 F. Supp. 1435, (D. Mont. 1989), aff’d 928 F.2d 858

(9th Cir. 1991) the court held that a formal regulation was not necessary to give content to the

term “any combination of parts from which a machine gun can be assembled.” The term 

“combination” was enacted by amendment, and evidenced a Congressional intent to cover

whatever parts were used in the final make up of the machine gun. (Id. at 1438-39.) Unlike the

statute in Evans, no broad interpretation can support an interpretation which fails to take into

account the express components of a receiver. (Id. at 1443-44.) The ATF’s classification here

cannot be accepted as a mere interpretation where that interpretation is wholly contradictory to

its existing regulations. 

ATF’s notices to Roh were notices of its classification of receivers. 

The Court finds that Roh’s activities with respect to the production of finished

receivers were not within the scope of the statute or the ATF regulatory definition. Therefore,

Roh did not violate the law by manufacturing receivers. The Court further finds that with

respect to manufacturing receivers, the statue and regulation are unconstitutionally vague as

applied here. No reasonable person would understand that a part constitutes a receiver where it

lacks the components specified in the regulation. 

In addition, the Court finds that when applied to include finished lower receivers,

Section 478.11 is unconstitutionally vague. Grayned, 408 U.S. at 108. This conclusion is

unchanged and even reinforced when one considers the Government’s argument that the

preamble to the section supports its position. 

 The definitions in the section are applicable “[w]hen used in this part and in forms prescribed

2

The Government’s recitation of “strawman” cases is inapposite. (Opposition, pp. 32-33, citing e.g. United States v. Nelson,

221 F.3d 1206, 1210 (11th Cir. 2000).

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under this part, where not otherwise distinctly expressed or manifestly incompatible with the

intent thereof.” (27 C.F.R. § 478.11, Preamble.) At least for criminal purposes, putting a

defendant to discern whether a definition is “manifestly incompatible with the intent” of the

regulation is a far cry from giving fair notice of the scope of the regulation.3

In United States v. Jiminez, 191 F. Supp. 3d 1038, 1045 (N.D. Cal. 2016), the court

found that the definition of receiver in a parallel provision of the regulations, 27 C.F.R.

§479.11, was unconstitutionally vague. Just as here, the court focused on the language of the

regulation:

Tellingly, the Government makes no effort to parse the statutes or the CFR for

proof of notice or clear standards. In effect, it concedes that the plain language of

the law does not answer the vagueness challenge. This is tantamount to

acknowledging that even if Jimenez had read the rules and regulations, he could

not have known that the lower receiver of the AR-15 would be covered by them.

That alone is a strong blow against the Government's position.

(Id. at 1041; emphasis supplied.) So too here. Moreover, the Jiminez court specifically

rejected the argument that the need to strengthen law enforcement overrode the vagueness

defect.4

 (Id. at 1044.)

Roh is entitled to acquittal of the charges here to the extent they are based on a

definition of receiver supported only by the ATF’s so-called classification. As applied here,

Section 479.11 is void for vagueness.

B. Assembly of Firearms.

The Court focuses more broadly on Roh’s activities. There is no question that he

manufactured completed AR-15s. Dr. Frank Juste’s purchase was typical. He paid for the

purchase and assembly of his AR-15. (Tr. Feb. 21, 2018, pp. 118-20.) The parties stipulated

that approximately 25 percent of Roh’s customers received a completed AR-15 or a completed

3

In view of the Court’s analysis, the Court finds that it is unnecessary to reopen the record to take the testimony of ATF

counsel, and rejects Roh’s request. (See Rebuttal, pp. 17-18.)

4

The Government suggests that Jiminez left room for the possibility that a different record in a different case might show 

“adequate notice to the defendant or vitiate a vagueness challenge on other grounds.” (Opposition, pp. 27-28 n.9, citing Jiminez, 191

F.3d Supp. at 1044.) The Court has already found that notice of an unsupported classification can not rise to such notice. 

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pistol. (Docket No. 101, p. 5.)5

Roh’s contention that the communications between ATF and Roh focused

“exclusively” on lower receiver is mistaken, and incorrectly assumes that ATF was required to

inform him of the law. (See Reply, pp. 24-25.) The December 2013 cease-and-desist letter was

directed to all of Roh’s operations. (Ex. 126.) It focused specifically on how the rifles were

manufactured, including customer performance of some steps. (Id., p. 1, third paragraph.) 

Other than arguing a lack of notice, Roh does not contest the showing her that he in fact

manufactured and sold completed firearms. 

Apart from the AR-15 sales, Rho sold Agent Jackson a pistol in violation of

California law.

This conduct, apart from the debate over receivers, is sufficient to support a finding

beyond a reasonable doubt that Roh wilfully engaged in the unlicensed manufacture and sale of

firearms in violation of 18 U.S.C. 922(a)(1)(A).

III. Conclusion.

The Court grants the Motion for Acquittal with respect to the manufacture of AR15 receivers, but otherwise denies the Motion.

5

See also Customer Appointment Records, Exs. 415, 470B, 470D.

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