Automatic gun transfer nets prison sentence
By JOHN DIEDRICH
jdiedrich@journalsentinel.com
Posted: May 13, 2008

A Wisconsin man whose federal conviction for illegally transferring a machine gun drew national attention on CNN and the Internet was sentenced Tuesday to 30 months in prison.


David R. Olofson, 36, of Berlin, who remains a member of the Army Reserve until his felony conviction becomes official, was convicted by a jury in January.

Olofson, whose case has been reported several times on Lou Dobbs' show on CNN, faced up to 10 years in prison, Federal sentencing guidelines called for 27 to 33 months.

U.S. District Judge Charles Clevert said Olofson knew or should have known the gun in question fired automatically.

"This was a man who has considerable knowledge of weapons, considerable knowledge of machine guns," Clevert said. "Mr. Olofson, in this court's view, has shown he was ignoring the law."

Assistant U.S. Attorney Gregory Haanstad noted that Olofson had two previous gun-related convictions, including carrying a concealed weapon with his children trick-or-treating. He also noted that Olofson was reprimanded for corrupting Army computers and perhaps providing militia groups access to sensitive information.

Olofson's attorney, Brian Fahl, who had asked for probation, promised a swift appeal with help from the National Rifle Association. He argued that Olofson's rifle malfunctioned because of the way it was manufactured. Fahl said the case is being watched nationally because some believe it allows for criminal charges whenever a weapon accidentally fires more than once.

"If you have a multiple firing, it looks like you can be prosecuted," Fahl said.

Olofson, a stay-at-home father of three, made no statement in court and left without speaking to reporters.

Prosectors argued it is a straightforward case of someone knowing a gun fired automatically and giving it to someone else.

In July 2006, Olofson lent an Olympic Arms AR-15 rifle to Robert Kiernicki, who took it to a shooting range in Berlin, according to court documents. Kiernicki was responding to an ad posted by Olofson to sell an AR-15.

AR-15s are semiautomatic rifles that fire a bullet each time the trigger is pulled. Federal law classifies a weapon that fires more than one bullet with a single trigger pull as a machine gun.

People can legally own fully automatic, military-type M-16 rifles, but they must have a federal license and cannot transfer it to someone else.

According to court records, Kiernicki turned the rifle's firing selector to the third position, pulled the trigger, and three bullets fired with each pull. Then the weapon jammed. The automatic gunfire was reported to police, who contacted the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Kiernicki testified Olofson told him the third position was for automatic firing, but it jammed, court records indicate. He also testified Olofson told him he had fired the weapon on the automatic setting at that same range without a problem, according to the records.

Olofson contended an ATF document showed that the company that made his AR-15 used M-16 automatic parts in some of them, including his, which would explain that it malfunctioned. Clevert reviewed the document and found it wouldn't exonerate Olofson.

Clevert said the key was not what parts were in the weapon but whether it operated in automatic mode. He played a video used at trial showing ATF agents firing Olofson's weapon in automatic mode. He also noted that in one ATF test, the rifle didn't fire automatically when military-grade ammunition was used.

Haanstad said Olofson had provided weapons and ammunition to so many people he couldn't keep track. A search of his home turned up books on converting rifles to fully automatic, and e-mail on his computer showed he bought M-16 parts, records show.

Olofson had contact with vigilante groups and professed to be part of the sovereign movement, which doesn't acknowledge federal laws as applying to them, Haanstad said.

Olofson's order to report to prison will take several weeks. In the meantime, Fahl said he would rush an appeal to stay the sentence to the 7th Circuit Court of Appeals.

Moral of the story: Don't fuck around when it comes to legalities.

So the guy knew full well it was FA, and owned it illegally? Fuck 'em then, I don't feel sorry for the guy.

Yeah.. it's kinda hard to claim innocence when you've modded your fire selector to be able to enter the third position.

This info was known long before now.

GO CNN!

Word. Now the rest of the story...

Continues my faith in the U.S. Attorney's office. As I posted before, most AUSAs are really good people, trying to do the right thing. Assistant United States Attorneys often serve as a buffer between the zealous (aggressive) law enforcement agents and common sense. I suspected that if the criminal division of the U.S. Attorney's office had decided to devote resources to this case, there likely was much more to it than appeared publically at first blush.

WJ

What worries me is that the BATFE will try to prosecute you if your gun malfunctions. All you have to do is see JPFO's DVD titled: "BATFE Failes the Test" where they tried to prosecute a guy who builds FN FALs and had one with a defective fire control system. The BATFE calimed that he had a 'machine gun' when it was proven to be a defective rifle which was dangerous and needed repair. I know someone who has a Taurus PT-22 which fired more than one round and had it sent back to Taurus for repair, had the BATFE seen that happen they would wrongfully try to prosecute the gun owner.

There was a Pennsylvania State Policeman who had a doubling Colt AR15 a few years back. He called ( in good faith ) the Alphabet gang for advice, and they told him to ship it back to Colt for repair.

So far so good.

The Alphabet gang then made arrangements to intercept the package and proceeded to charge the Trooper with all kinds of NFA violations.

FYI: Their case went nowhere.

Another report on this guys past....

Gun offender received Army censure in 2002
Reprimand accused reservist of tampering with computers

By JOHN DIEDRICH
jdiedrich@journalsentinel.com
Posted: May 15, 2008

A Wisconsin Army reservist sentenced this week on a federal machine gun conviction was reprimanded in 2002 for corrupting military computers and possibly providing sensitive information to Wisconsin militia groups, Army documents state.


That report called for an Army criminal investigation into whether David R. Olofson and other soldiers broke federal laws. It also recommended that Olofson, who told soldiers he belonged to an anti-government militia, and at least one other soldier be involuntarily separated from the military.

A two-star general issued a reprimand in which he calls Olofson's actions "reprehensible and inexcusable."

The Army review also says Olofson, 36, of Berlin, failed to notify the military of two earlier gun-related convictions, including one that stemmed from carrying a loaded gun while trick-or-treating with his children.

The recommendation for a criminal investigation was rejected, according to a note on the file. Olofson received an honorable discharge in September 2002, Army officials said Thursday.

Four years after the reprimand was issued, Olofson re-enlisted in the Army Reserve and remains a member of the 108th Training Division headquartered in Charlotte, N.C., a division official said Thursday.

Lt. Col. Scott Fitzgerald, a spokesman for Olofson's former unit, the 84th Division out of Milwaukee, said he wouldn't expect someone with such a reprimand could re-enlist.

"I am surprised, with as strong as that general reprimand is," said Fitzgerald, who also is a state senator. "That seems pretty strange."

But officials said nothing was on Olofson's discharge paperwork showing it was involuntary or barring his re-enlistment.

"His discharge showed no limitations," said Master Sgt. Keith O'Donnell of the Army's Human Resources Command in St. Louis. "Without that, they would have no way of knowing there was an investigation or non-judicial punishment against him."

Olofson was sentenced Tuesday to 30 months in prison in the machine gun case, which has received national attention on Lou Dobbs' show on CNN. The stay-at-home father of three is appealing his conviction and sentence, with support from the National Rifle Association.

His attorney, Brian Fahl, said Olofson, who was on active duty for four years, didn't know anything about the Army's investigation. However, a prosecutor said the reprimand and other documents came from Olofson's own computer, which was seized in a raid.

"He did not know of it," Fahl said of the investigation. "He says he doesn't know how it got on his computer."

Assistant U.S. Attorney Greg Haanstad disclosed the Army investigation along with other documents at sentencing, portraying Olofson as a man who doesn't think laws apply to him.

In a 2003 e-mail to a fellow gun owner, Olofson said members of the "Sovereign" movement don't have to follow federal gun laws, including those that cover machine guns, which he called "small toys."

"Remember as a Sovereign you are unhindered by the regulations that the federal citizens have to follow," Olofson wrote. "Then you can literally do most anything you want so long as it interferes with no others' rights or person."

Haanstad also presented a letter from 2004 in which Olofson offered help to a group patrolling the Mexican border for illegal crossings.

"You will find our multitude of cells very well-equipped and trained," Olofson wrote. "We have many things most individuals do not (including) light armor and heavy weapons."

Access to computers

In May 2002, Olofson and other soldiers reconfigured military computers to allow access to outsiders, including possibly Wisconsin militias, Army records indicate, although they don't specify any groups. The changes allowed outside access to personal information such as Social Security numbers of 91 soldiers, according to the records. The report says Olofson and another soldier spent five hours deleting computer files after the initial changes had been detected.

Olofson, who held the rank of specialist, and the others violated federal laws including damaging a government computer and conspiracy, the records indicate, and the investigation recommended the Army's Criminal Investigation Command, Computer Crime Investigative Unit in Virginia launch its own investigation. The word "no" is written next to that recommendation.

The report notes that Olofson was absent without leave during the investigation, wasn't returning phone calls and refused to answer questions, though an attorney had been appointed for him.

"It can be inferred he is hiding his conduct," the report said.

Maj. Gen. Charles Gorton wrote, "I reprimand you for your abysmal failure to adhere to basic security measures. . . . Your deplorable conduct is wholly unacceptable and intolerable in a senior soldier."

The report recommends rescinding a commendation Olofson had received and that officials "involuntarily separate" him from the military. It's unclear what happened to other soldiers involved in the security breach.

An involuntary separation can be honorable, said Maj. James Lincoln, spokesman with Olofson's current unit. However, in Olofson's case there is nothing on his paperwork showing he was forced out, said Lincoln, who added an investigation is under way into Olofson's current conviction.

Fitzgerald, the spokesman for the 84th Division where Olofson received the reprimand, said he could not find anyone in the unit who knew details about the 2002 investigation or its outcome.

Wow, um.

Those two stories are nothing more than smear pieces.

He was never charged at all for possession or manufacture of a machine gun, mostly because there was no machine gun. It was an olly arms ar15, built in the 80's with colt surplus m16 parts, and later recalled. He also was not in possesion of the rifle at all, himself, and had lent it out weeks previous to its malfunction. the defense was not even allowed to inspect the gun to see if the person who had borrowed it had made any modifications. MALFUNCTION. The BATF tech department durring its investigation stated that they were unable to produce automatic fire. Then the agent in charge asked them "Well, are you sure, because we would really like to nail this guy." and so, they retested it, and after some finagaling, (and the use of soft primer ammunition) they were able to reproduce a malfunction (after how many rounds, or what parts were cleaned or not, or treated or not, or.... we have no idea). after that, not only did they not charge the man originaly accused of possessing the rifle, they PAID him to testify against Olofson.

As for the previous weapons arrest, he was trick or treating and open carrying, someone complained, and the police showed, after some confusion, they realized that you can in fact carry in his state, and no charges were filed.

The so called security reprimand, was never confirmed by the military, who not only didnt discharge olofson, they let him reenlist. it says nothing about malice, or sabotage, or espionage on the part of the militia. All it even claims is a failure to support protocol, which if any has dealt with the military, its suprising that more army grunts put in charge of network security dont diverge from overly complex security protocols.

This was a railroading. Ive been following this case for a while now. Olofson has been very forthcoming about the entire case, which is rare in these types of cases, where any lawyer would tell you to shut up, and fast.

As for a moral, im not sure there is one.

Watch your backs, maybe?

http://cottonrevolt.blogspot.com/2008/05/30-months.html <-- also.

That piece of "journalism" is full of lies. I am very familiar with this case. To receive all of the facts you would have had to attended the latest motion hearing and sentencing.

To start, there was no 3rd setting for full auto on the gun. This is not debatable, the ATF admits now there is no 3rd "full auto" setting, and also that the firearm is nothing more than an Olympic Arms AR-15. Olympic Arms used some m16 parts in their AR's in the '80's, which was acknowledged in a letter ATF received from Olympic Arms. They admitted all this in the courtroom. The ATF tested the gun a first time and it would not fire more than one round per trigger pull. They weren't happy with that, so then they tested it again specifically with soft-primered ammo. They KNEW it was a malfunction, the ATF tester was so scared of firing the gun with this ammo that he held it way out in front of him in case it blew up. They did get it to fire full-auto, 2 or 3 rounds at a time with the soft-primer ammo. The thing is after every time it fired that way it jammed real good. What would the point be in full-auto if you had to clear a jam every 3 rounds? The full-auto conversion manual he had at his house showed a full-auto conversion with parts that were not in the gun or in his possession, and the court agreed that he did not have the firearms knowledge to convert the gun to full-auto.

It's scary that the judge specifically states that it does not matter whether your gun is intended to function full-auto, only that it fire more than once with a single trigger-pull. This does not have to be replicated repeatedly, but need only happen one time for you to be a felon. Whatever the ATF has to do to make it fire full-auto when they are testing it doesn't matter either, since there are no testing standards or guidelines. You also DO NOT have to be given the chance to fix the malfunctioning firearm, since it has already functioned as a "machine gun".

All it would take is 1 case of hammer follow for you to be a felon.

This story just has a life all of its own, and grows with each telling. NOW, I have not followed it closely. However, every time I start to read one of the documents which purports to show how "innocent" Mr. Olofson is, I have to stop!!! IF any of the information about Olofson is true, then he has recourse, it is called an appeal.

If there is exculpatory information available, the defense attorney is going to get it. The fact that it is "tax" information is not going to keep a Federal Judge from viewing it and if it is relevant under the Federal Rules of Evidence, then it is coming into evidence. Part of it might be dedacted, or excluded, but the relevant part is coming into evidence. The standard for what is relevant under the Federal Rules of Evidence is a low standard.

Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.


Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.


Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.


Again, I have not followed this case and I don't intend to spend much time following it. My point is, if all of the checks and balances in our criminal system got this guy convicted, that is good enough for me. This thread is a Gordian Knot because one side will refuse to believe the Government did not ramrod Olofson, and one side will believe he got what he deserved.

Does our judicial system screw up? Absolutely! Is Olofson guilty? Under our system, yes he is. Could this happen to you, I doubt it. If it does, find a really good defense attorney.

WJ

WJ, you are obviously better versed on the law than most of us, but is it not possible that the ATF would deny the review of tax records by the defense who might think it contains exculpatory evidence, and then for a judge to deny the defenses claim to review by "taking the ATF's word for it" that the documents in question contain no relevant information? not saying that is what happened here, but the the judge did defer to the ATF's judgement on several occasions during the case.

I might agree with you on the quality of defense Olofson received, but that doesnt detract from the fact that the BATF has almost endless resources to pour into "making" a case. And in this case, it does seem that the majority of evidence was manufactured by the agency testers, who have no standard to follow, only a SA who dictated what the results should be after he was given results he didnt agree with. Guilty or no, i dont see how its possible that Mr Olofson wasnt railroaded by a vicious government agency, who was more than willing to overlook the person who actualy may have had a rifle that malfunctioned as a machine gun. A verdict is not the same thing as justice, unfortunately.

If you would like to be more familiar, i can forward you the transcripts, though of course, its quite a read.

The appellate process is of course where we look to for news now, but Mr Olofson will be in prison before that goes much of anywhere, im sure.

In 30+ years of working on weapons, I've had quite a few come in that , Doubled, Tripled, or just dumped the entire mag. Some times this will happen if you just drop the bolt hard. I've never had any law enforcement type jack up a customer who was legit. I did have "Ranger Bob" bring in a 15 yr old with a Winchester Model 50 which fired three round bursts....his main concern was " Look at this before this kid knocks himself out of that tree stand again"...or the new Maadi I sold and the customer brought it back three days later because it would run when you squeezed the trigger trying to group it. Again, no problem, just fixed it. The number of AR 15 type weapons out there with over the limit number of M16 parts is unknown, but if the selector goes to the third position, and the hammer follows the bolt home, your not in compliance. I resent Yankee Federal strongarm tactics as much as anyone........but some of these guys are beyond belief......I can almost see the sales pitch now......"It's not a machinegun, but , if you do this, and do that, watch what happens" and then plead your lack of knowledge...............

I appreciate the offer, but no thank you. I have had to read too many transcripts in the course of my official duties to elect to do so for free in my spare time. There is a case called Brady v. Maryland which directs that a prosecutor cannot withhold exculpatory evidence. Now, there are conflicts with this (Jencks Act) and more recent cases addressing this issue, but if the defense team knew about such evidence and requested it, at least the Judge would have reviewed it for possible admissibility. Yes, the Judge might have found a reason to exclude it.

I value everyones' opinion on this board, that is why I read it and post here. I understand why people are polarized by this topic and I do NOT know all of the facts. My sole purpose in posting in this thread is to assure the readers that there are good people in most U.S. Attorney's offices. These people review a case before it ever goes before a Grand Jury or an indictment is issued. In order for someone to get to the point of being a Defendant in a federal criminal case, probably at least five and likely more, people have reviewed the case, its facts, its merits, its costs and its ramifications. This review process includes review at the agency, as well as by the Criminal AUSA, perhaps a Deputy Criminal Chief and the Criminal Chief and the U.S. Attorney. I have seen situations where just one person in this review process thinks the case should not go forward, and it does not. I did primarily civil cases at the U.S. Attorney's office, but the few times I felt strongly about a case, my point of view, when supported by facts and law, was accepted.

So, while there can be lazy or poorly motivated people working at the various agencies, and ill motivated people at the Department of Justice, I just don't think that there are many, if any, people in the process who are out to get someone who is "innocent." I have seen the process work from the inside. Most of the time it does work. I would like to hope that if this case were so "bad" one of these people would have quashed it long before it got to a verdict.

With that being said, I have seen pressure exerted on staff to bring a case. This happens for a variety of reasons. However, when I have observed that pressure, the case was usually strong, but was facing a statute of limitations problem or some other major issue.


We all bring our backgrounds, knowledge and life experience to this forum, that is what makes it interesting. You are right to question D.O.J. and the Judiciary. That is your right as a citizen in our country. I just respectfully ask that you try to remember that the vast majority of the people working in those agencies are working for good, not evil, purposes. We never hear of the "bad" or poorly investigated cases they reject.

WJ

Well spoken, WJ.
If I were ever in this position, I'd hope you're my judge!

Let me break this down a little:


LOL @ "but it jammed", like that's a defense. VanKiller is correct in his assessment of this guy.


SO, don't freak out because you have an M-16 bolt carrier.



This is the kind of Law-Scoffing I was alluding to earlier.