August 2, 1996 CONGRESSIONAL RECORD -- Extensions of Remarks E1461
EXTENSIONS OF REMARKS
HON. DAVID FUNDERBURK
OF NORTH CAROLINA
IN THE HOUSE OF REPRESENTATIVES
Friday, August 2, 1996
Mr. FUNDERBURK. Mr. Speaker, on October 18, 1995, Thomas A. Busey, then Chief of the National Firearms Act Branch of the Bureau of Alcohol, Tobacco and Firearms-- hereafter BATF-- made a videotaped training presentation to BATF headquarters personnel during a rollcall training session. Rollcall training is weekly or periodic in-house training for BATF officials-- a routine show and tell whereby bureaucrats learn about each other's duties and functions.
Busey's National Firearms Act Branch administers the National Firearms Act of 1934,* the taxation and regulatory scheme governing machineguns, silencers, short-barreled rifles and shotguns, destructive devices, and so forth. In his capacity of NFA Branch, Chief Busey was the official custodian of the National Firearms Registration and Transfer Record-- hereafter NFR&TR-- mandated by 26 U.S.C. § 5841.
* Footnotes at end of article
Busey's presentation was anything but normal, routine, or customary. In describing the NFR&TR, Busey made the startling revelation that officials under his supervision routinely perjure themselves when testifying in court about the accuracy of the NFR&TR.
Every prosecution and forfeiture action brought by the United States and involving an allegedly unregistered NFA firearm requires testimony under oath by a duly authorized custodian of the NFR&TR that after a diligent search of the official records of which he/she is custodian, no record of the registration of the firearm in qurstion was found-- or was found but showed a different registrant than the person being prosecuted.2 An alternative method of proving the same facts is by admission into evidence of a certified copy under official Treasury Department seal of a similar written declaration by the custodian.3 This is a critical element of the Government's proof, and, according to Busey, occurred 880 times in 1995 alone, presumably fiscal year 1995.
Busey began his rollcall presentation by acknowledging that "Our first and main responsibility is to make accurate entries and to maintain accuracy of the NFRTR." Moments later Busey makes the astonishing statement that "when we testify in court, we testify that the data base is 100 percent accurate. That's what we testify to, and we will always testify to that. As you probably well know, that may not be 100 percent true."
Busey then goes on for several minutes describing the types of errors which creep into the NFR&TR and then repeats his damning admission:
So the information on the 728,000 weapons that are in the data base has to be 100 per cent accurate. Like I told you before, we testify in court and, of course, our certifications testify to that, too, when we're not physically there to testify, that we are 100 percent accurate.
How bad was the error rate in the NFR&TR? Busey again:
When I first came in a year ago, our error rate was between 49 and 50 percent, so you can imagine what the accuracy of the NFRTR could be, if your error rate's 49 to 50 percent.
Does anyone recall the phrase, "Hey, close enough for government work"?
Consider this matter in its starkest terms: a senior BATF official lecturing other senior BATF officials at BATF national headquarters in Washington, DC, declares openly and without apparent embarrassment or hesitation that BATF officers testifying under oath in Federal-- and State-- courts have routinely perjured themselves about the accuracy of official government records in order to send gun-owning citizens to prison and/or deprive them of their property. Just who is the criminal in these cases?
All this was too brazen for even some BATF officials to stomach. Acting on tips from several BATF officials-- there are honest men and women in government, even in BATF-- I promptly filed a Freedom of Information Act4 demand precisely describing the Busey tape.
The first reaction was predictable. After reviewing the incriminating tape, BATF officials discussed whether they could get away with destroying it. Wiser heads prevailed; obviously any outsider who knew of the tape probably would learn of its destruction-- and I would have. Or perhaps all the official shredders were on the loan to the White House.
After much tooing and froing with a dismayed Department of Justice a transcript of the Busey tape was sent to me in February 1996. The Department of Justice was dismayed because the Busey tape was clearly Brady material. Every defense lawyer knows that under the Supreme Court's 1963 decision in Brady v. Maryland, 373 U.S. 83, the government is required in all criminal prosecutions to provide the defense, in advance of trial, with any evidence tending to show the defendant's innocence. Failure to do so can result in dismissal of an indictment, reversal of a conviction, or other sanctions. Willful failure to produce Brady material can constitute contempt of court, professional misconduct or even a crime.
The Busey tape was clearly exculpatory and clearly implicated every National Firearms Act prosecution and forfeiture in living memory. Worse yet, Busey was only the tip of the iceberg. When the fog had cleared Justice learned that the NFR&TR inaccuracy problem had been the subject of internal BATF discussions since at least 1979. BATF's files were replete with minutes of meetings, statistical studies, memoranda, correspondence, etcetera, admiring the problem. The only thing missing was any attempt to correct the problem, or to reveal it to anyone outside the agency.5
Justice has now commenced the painful chore of advising every NFA defendant in the country of the situation. It did this with a recent mass mailing by U.S. attorneys to defense lawyers and defendants of relevant BATF documents, including the Busey transcript.
The direct consequences of this institutional perjury are just now beginning to occur. In Newport News, VA, on May 21, 1996, U.S. District Judge John A. MacKenzie, after reviewing the Busey transcript, promptly dismissed five counts of an indictment charging John D. LeaSure with possession of machineguns not registered to him.6 LeaSure, a Class II NFA manufacturer, had received BATF transfer approval for the five guns, but then decided to void the transfers and keep the guns, as he was legally permitted to do. He promptly faxed the voided forms 3 to NFA Branch.8
BATF subsequently raided LeaSure and charged him with illegally possessing the five NFA firearms which, according to the NFR&TR, were registered to someone else. The Government ignored the fact that on the date LeaSure said he voided the transfers there was a 21-minute call on his toll records from his fax number to NFA Branch's fax number-- at a time when he could have had no idea he would one day be prosecuted for continuing to possess the guns. Rather, the prosecution produced NFA Branch firearms specialist Gary Schaible to testify as custodian of the NFR&TR that the Government's official records did not show any voided transfers and therefore LeaSure was in illegal possession of the guns.9
In essence Schaible was testifying that "We can't find an official record and therefore the defendant is guilty." What we now know is that Schaible should have testified that "We can't find half our records even when we know they're there-- and therefore we're not sure if anyone is guilty."
The Government's case was not aided when Schaible was forced to admit on cross-examination that two NFA Branch examiners were recently transferred because they had been caught shredding NFA registration documents in order to avoid having to work on them.10Note that they were transferred. Not disciplined. Not fired. Not prosecuted. Not destroyed in place. Transferred. Just who is the criminal in these cases?
It is too early to predict how many new trials, appeals and habeas corpus actions will result from this affair. Also of importance is the number of convicted felons presently suffering legal disabilities11 from flawed firearms convictions and what effect the Busey disclosures will have on their situation.
The indirect consequences of BATF's conduct will not be so readily apparent but are potentially devastating. All across the country assistant U.S. attorneys, U.S. district judges, and other Federal and local law enforcement officials are going to learn what most defense lawyers and gun dealers have known for years and what the aftermath of Waco and Ruby Ridge starkly illustrated: BATF officers and agents lie, dissemble, and cover up on an institutionalized basis. These are not aberrations; they are an institutional ethic, an organizational way of life. Just who is the criminal in these cases?
Lawyers and defendants in NFA cases who have not received the Busey package from the U.S. attorney should be making prompt demands-- both for the package and for an explanation of why it was not timely produced. I am acting as an informal clearing house for these matters. Those lawyers or dealers with questions or problems, or with new information involving the Busey phenomenon, or its continuing aftermath, are invited to contact me at (910) 282-6024.
[The author is a retired U.S. Department of Justice lawyer and a retired colonel in the Marine Corps Reserve practicing firearms law in Greensboro, NC. He is a 1959 graduate of the University of Kentucky and a 1962 graduate of the UK College of Law, where he was note editor of the Kentucky Law Journal. He is a life member of the NRA and holds BATF in minimum high regard.]
1Public Law No. 474. ch. 757. 48 Stat. 1236-1240 (Act, of June 26, 1934). 26 U.S.C. 11 1132-1132q; as amended by Act of April 10. 19M, ch. 169, 49 Stat. 1192; as codified by chap. 736, Act of August 16, 1954 (Internal Revenue Code of,1954). 68A Stat. 721-729; as amended by Public Law No. 85-859, Title Il, § 203. 72 Stat. 1427, 1428 (Act of September 2, 1958); as amended by Public Law No. 86-478, § § 1-3. 74 Stat. 149 (Act of June 1, 1960); as amended by Public Law No. 90-618, Title II, § 201, 82 Stat. 1227-1235 (Act of October 22, 1968); as amended by Public Law No. 94-455, 90 Stat. 1834 (Act of October 4, 1976); as amended by Public Law No. 99-308, § 109, 100 Stat. 449, 460 (Act of May 19, 1986); and as amended by Public Law No. 100-203, 101 Stat. 1330 (Act of December 22, 1987): Internal Revenue Code of 1986, Title 26 United States Code, ch. 53, 26 U.S.C. § § 5801-5872 Title II of the Gun Control Act of 1968).
2See Federal Rule of Criminal Procedure 27 and Federal Rule of Civil Procedure 44. See also rules 803(8). 901(b)(7), 902(l), (2), (4), amd 1006 of the Federal Rules of Evidence.
45 U.S.C. § 552.
5The first rule of a bureaucrat is "Never disturb a body at rest." The second, "If I don't do anything I can't do any thing wrong." The third, "When doubt, mumble."
6United States v. Leasure, Criminal No. 4:95CR54 (E.D. Va. Newport News Div.).
7"Special Occupational Taxpayers" under 26 U.S.C. § 5801 fall into one of three categories: Class III dealers can possess, sell, and transfer NFA firearms; class II manufacturers can, in addition, manufacture and register them; class I importers can, in addition to all the foregoing, import them. All SOTs are also required to possess Federal firearms licenses, which themselves come in six different classifications. Throw in the import and exports licenses and permits required, the various taxes imposed, and the State and local licensing and registration schemes involved, the mandatory recordkeeping required, and the shipping and transportation limitations concerned, and you have a lawyer's paradise.
8BATF forms 3 are used to authorize tax-exempt dealer-to-dealer transfers are to reregister the firearm(s) involved to the transferee. There are numerous other transfer and registration forms used depending upon the nature of the transaction, the status of the parties involved, and the type of firearm and its origin.
9Violations of the NFA are all 10-year, $10,000 felonies. See 26 U.S.C. § 5871. NFA firearms, which carry some impressive sticker prices, are also forfeit if used in any violation of the NFA. See 26 U.S.C. § 5872.
10We are left to conjecture where the NFA Branch shredder is located in relation to its fax machine.
11In addition to the loss of civil rights imposed on convicted felons by the laws of most States, felons permanently lose the right under federal law to posses firearms, as well as being potentially debarred from service in the armed forces, civil employment in government, receiving security clearances, bidding on Federal contracts, etc.